Pros and cons of a will for an apartment

Last modified: August 2020

A will with a condition is a legally significant document containing the last will of the owner with the transfer of inheritance upon the occurrence of certain circumstances. These conditions may not be so beneficial for the heirs, forcing the latter to refuse to accept the inherited property. The issue of distribution of property after death worries owners who are interested in allocating property to their loved ones and relatives. Sometimes a simple distribution of the inheritance is not enough, since the testator needs to take care of the implementation of important actions or the occurrence of certain circumstances.

Is it possible to specify special conditions in a will?

Complex versions of the will of the testator are not so common. Questions about whether it is possible to make a will with a condition arise more often among citizens who are worried about the fate of loved ones who will be left without support and care after the death of the testator.

There are several options for making a conditional will, including a testamentary refusal with the fulfillment of obligations in relation to property and a testamentary assignment with the obligation to perform certain actions. If we are talking about granting the right of residence to a loved one, a refusal is drawn up, and if it is necessary to provide an heir with care for a pet, they speak of a testamentary assignment.

When thinking over the contents of the paper, the testator must understand that the conditions established for accepting the inheritance do not go beyond the legal norms. If this is contrary to the laws, the inheritance order becomes invalid.

Some citizens, wanting to protect the rights of loved ones and protecting them from disagreements, negotiate options for how property will be distributed if any event occurs. For example, the testator decides that when opening an inheritance before the child reaches the age of majority, the property will be transferred to the mother, and later it will be divided into two.

There are varieties of setting suspensive conditions. For example, to receive an inheritance, it is necessary to fulfill a certain requirement (action) on the part of the heir, which takes several years (obtaining a university diploma). During the waiting period, an executor of the will (a close relative or an independent legal agency) is appointed.

Basic provisions that a declaration of will should contain

The main principles when forming the will of a citizen are the personal desire of the testator and maintaining the secrecy of the order. The first indicates that the owner of the assets cannot be forced to alienate valuables in favor of third parties. Psychological and physical pressure on a citizen is not allowed. In addition, he must be aware of what he is doing and what consequences his decisions will entail. The legislation allows the manager to determine the content himself. The main thing is that the text does not contradict the requirements of current legal acts. The second principle, in turn, is to maintain confidentiality about the preparation of the paper. Thus, the testator is not obliged to inform anyone about the existence of an official document.

When drawing up a declaration of will, the following nuances must be taken into account:

• the circle of applicants is determined by the compiler himself. He can include any persons in the text, regardless of the degree of relationship and the presence thereof. It is worth noting that a citizen has the right to deprive the legal heirs of his property. However, this possibility is limited by the mandatory share provided for in Art. 1149 GK;
• if the order concerns specific benefits, then the remaining part will be redistributed among the heirs who have the right to receive assets by law (in a strictly established order);
• the text may contain instructions not only regarding assets already owned, but also those that will be acquired in the future;
• In addition to the main beneficiaries, the person provides for sub-designated claimants. This is necessary to reduce the risks of the death of one of the named beneficiaries, which occurs before the receipt of things, as well as their refusal to inherit;
• the testator is authorized to establish disclaimers. This means that potential recipients are subject to conditions without which they will not be able to acquire and dispose of the assets of the deceased. However, if the encumbrance concerns a violation of the personal rights and freedoms of a citizen, then the court may declare the last will invalid by annulling it;
• the will-holder has the right to adjust or even cancel the document at any time. It is not necessary to notify interested parties about this.

Important! A will must be prepared in writing and signed by the will-maker, as well as a notary. If any of the indicated actions are not performed, this will make it impossible to use the act as a legally significant document. Sometimes deviations are allowed due to the involvement of an applicator in the process or the certification of the text by persons vested with powers similar to those possessed by a lawyer in the office.

Possible conditions of the will

The rules defining acceptable options for accepting an inheritance are specified in Section 5 of the Civil Code of the Russian Federation. One of the most frequently mentioned conditions in a will is the lifelong residence of a relative, loved one or a complete stranger. Property can be inherited by one person or divided among several heirs. No principles have been established for determining the shares of beneficiaries.

The main limitation is the absence of contradictions to the law or infringement of the rights and freedoms of other citizens.

Article 1137 of the Civil Code of the Russian Federation establishes that the testator’s heirs may be subject to various demands, failure to fulfill which will result in loss of inheritance.

Conditions may be related to the disposal of property, or lie outside the property characteristics.

Among the possible requirements set forth by testators, the following formulations are usually used:

• adulthood (receive an inheritance after reaching 18 years of age);
• obtaining an education (different options for educational institutions may be described);
• marriage registration (for children, young relatives);
• ban on subsequent marriage (for the spouse);
• issuance of a sum of money to persons mentioned by the testator;
• lifelong residence of other persons when inheriting real estate;
• transfer of part of the remaining assets to legatees;
• execution of a specific order or service in favor of the specified beneficiary;
• make payments in favor of the mentioned citizens;
• grant the right to use housing to the legatee for a limited period of time or for life;
• take care of the pets of the deceased, provide regular care.

The rules set by the testator are not always easy to follow, but this makes it impossible to receive an inheritance. In such situations, the heir has to challenge the person’s last will, or give up the property of the deceased. A will with a condition not to sell the apartment can worsen the heir’s position, since it makes accepting the inheritance unacceptable or unprofitable (if living in another country or remote region, it is not possible to monitor and maintain the technical condition of the inherited property).

To avoid such problems, notaries do not recommend introducing rules into the document that complicate the process of obtaining an inheritance, and abandoning dubious wording, since there is a high probability of going to court to invalidate the will of the testator.

A will providing for the lifelong residence of another person

When transferring real estate, they often take advantage of the opportunity to dispose of real estate as efficiently as possible, keeping it in the family's property and allowing other persons not participating in the division of the inheritance to use the living space.

A will with the condition of lifelong residence is consistent with the provisions of Art. 1137 Civil Code of the Russian Federation. Typically, the legatee is given 3 years to exercise his right. After moving in, the person must ensure registration at the location of the inherited apartment.

The costs associated with the maintenance and payment of housing after a person moves in are proportionally shared among all residents.

If the right of residence is granted for a limited period of time, the heir has the right to demand the vacancy of the premises upon expiration of the specified period.

Solving the problem of granting lifelong residence without the right of ownership under a will

Certain inconveniences are caused by the testator's decision to allow specific persons who are not family members to live in the apartment for life under the will.

If there is a need to accept the testator’s apartment by expressed will, and refusal of the inheritance is impossible, the problem is solved through:

• provision of housing for the legatee and organization of separation;
• the parties agree and formalize through a notary a refusal to use the housing regardless of the will of the deceased;
• in order not to give up the entire inheritance, the heir transfers his part of the apartment for rent;
• the beneficiary pays the intended tenant some monetary compensation with the registration of a notarized waiver of the area;
• an apartment or household is divided with the organization of separate living through redevelopment.

In any case, if it is impossible to challenge the will of the deceased, you have to negotiate with the legatee and record the agreement through a notary.

Will with the right of lifelong residence sample

When drawing up a will, you need to take into account that the disagreeing party will probably try to challenge it, especially if it significantly worsens the life of the heir and his family. Before drafting a will, it is recommended that you consult with a lawyer to determine whether it is possible to write a will that requires a specific form.

When drawing up, adhere to the sample will with the condition, taking into account the need for the following details to be present in the document:

• city, date of compilation;
• name of the form;
• registration of the testator;
• information from the passport;
• content of the expression of will;
• transfer of inherited property;
• list of legal successors with registration addresses;
• determining the shares of each;
• formulation of the conditions under which the inheritance will become the property of the heirs;
• number;
• information about payment of the mandatory fee.

The document is signed personally by the testator with a description of his last name and first name.

You can reduce the time for drafting by using a sample will with a condition from a notary. It is recommended that you consult with an attorney if you have any doubts about the enforceability of a claim or the risk of a post-death challenge.

After the notary checks the prepared testamentary form, a notary office stamp is placed on it. One original is given to the testator, the second remains in the office to control the execution of the last will of the deceased in the future.

: Sample will with condition (21.7 KiB, 43 hits)

Registration of a will with a notary

To draw up an administrative document, an interested person must contact any notary office.

It is possible to register a will at any notary office in the country. When opening a probate case, the document will be forwarded to the required notary office.

Requirements for a will

Civil legislation provides for the opportunity for the owner to independently dispose of his property in the event of death, by drawing up a will. Ch. 62 of the Civil Code of the Russian Federation is entirely devoted to the rules for drawing up a document and its features. With its help, a citizen can distribute objects that belong to him by right of ownership between any individuals and legal entities at his own discretion.

Possibilities of a will:

• choose any citizens, legal entities or state as legal successors;
• deprive legal heirs of a share in property;
• establish a testamentary refusal or assignment (actions that the heirs must perform to receive property);
• oblige the notary to create an inheritance fund;
• distribute your property among legal successors;
• dispose of property that has not yet been acquired.

The only restriction for the testator is the right to an obligatory share. This is the legal right of the deceased's dependents to a share in property equal to ½ of the share that is required by law. In this way, the rights of disabled or retired parents, spouses and children, as well as minor children, are protected.

One of the important requirements for a will is its written form. Also, the document must be certified in the manner prescribed by law. As a rule, this is a notarized certificate.

However, a citizen does not always have the opportunity to visit a notary office. And in some localities such a service is not available at all.

In such a case, the law provides for alternative methods of identification.

What package of documents is required to draw up a will?

In order to accurately reproduce in the contents of the will all information that is significant in relation to the legal successors, as well as the conditions for the transfer of ownership of the testator’s property, the latter, in the process of drawing up the document, must have with him:

• passport;
• information regarding the passport details of the intended heirs;
• copies of documents that serve as confirmation of the testator’s ownership of the complex of property, which are subject to subsequent transfer as an inheritance.
• a sample will example can serve as an aid in drawing up your version, but you should not perceive it as a “cliché”.

What to consider when making a will

A will for all property to one heir is drawn up in a strict form with a clear statement of one’s own instructions. The Civil Code of the Russian Federation establishes what conditions must be reflected in this document and how to correctly write a will for all property. The sample is a document that is sealed in 2 envelopes.

It is necessary to take a responsible approach to drawing up a will, observing the procedure defined by law and the form in which one’s own will is written.

Anyone interested in how a will is written for all property should take into account its basic properties. This document:

• certified by a notary;
• corresponds to the standard adopted by law;
• includes the date when the document was executed;
• signed by the testator, and when the situation requires it, then by witnesses;
• does not contain instructions that contradict each other.

Important! The number of wills from one person is not limited by law.

The testator has the right to make as many dispositions regarding the property as he wants. A new will, which contradicts the meaning of the previous one, cancels it. However, when they contain orders of a different nature, or they relate to separate types of property, then each testamentary act will be endowed with the same legal force.

Form and content of the will

A strict form is not provided for by law; compliance with the following rules is sufficient:

• writing;
• registration in Russian;
• consistent presentation of information;
• no errors;
• elimination of legal errors;
• eliminating ambiguous phrases.

Required sections:

• personal data of the testator;
• a list of property indicating technical characteristics that allow the property to be identified among similar objects;
• list of heirs (full name, residential address, contact details, relationship);
• establishing the shares of property transferred to a specific participant;
• setting conditions, if necessary;
• date of document preparation, signature.

Closed form of will

A closed will is a similar type of act of will, but the difference lies only in the design features and the absolute confidentiality of the information contained in the document.

When the testator wants to hide his own orders from other persons before the inheritance opens, he needs to draw up a will in closed form. Also, this form of testamentary document is used if he has doubts about the observance of testamentary secrecy on the part of the notary and other participants in this process.

Open form of testamentary act

Russian legislation provides for several types of administrative documents on the fate of the testator’s belongings. In terms of their legal force, they are not always equivalent. However, each of them is adapted to specific circumstances and can be chosen by the testator at will, with certain reservations.

An open will is also called a universal will.

The term openness in this case is considered relative. Such a will is available for review by witnesses, a notary, and executors. Other persons do not have the right to read the will if such an intention was expressed by the testator. Each participant in the document certification procedure must keep secret what is contained in it. Otherwise, they may be required to pay monetary compensation for moral damage caused.

Article 62 of the Civil Code acts as a guarantee of the legal significance of an open form. This provision can only be challenged in exceptional cases. Thanks to such a document, executed by a notary, it is possible to bequeath property of any type (except for those prohibited by law).

Is a will valid in simple written form?

A will in simple written form without notarization, written under emergency circumstances, has full legal rights and is binding. However, it must be remembered that if the outcome of a dangerous situation is positive, it must be notarized within one month. This rule is clearly described by Article 1129 of the Civil Code of the Russian Federation. Otherwise, this document will not be legal.

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You should also know that when writing a document, the presence of at least two witnesses is required, whose names do not appear in the will. That is, these must be absolutely uninterested citizens. A testamentary act cannot be drawn up by an outsider under the power of attorney of the testator. The document must be written and authorized by him personally.

An exception is the situation in which the testator is unable to write with his own hand due to an illness (for example, lack of a hand). This circumstance must be indicated in the contents of the will, written in simple written form. If the specified conditions are met, then the act drawn up in this way is recognized as valid.

Is a simple written will allowed?

Drawing up a will in simple written form is allowed only in situations that create risks for the life of the testator. In such cases, the citizen must independently write an order about his property in simple written form. However, according to the law, a mandatory condition at this moment is the presence of two witnesses. In the future, witnesses will have to confirm the accuracy of what was written, as well as the adequate state of the testator at the time of writing the will.

Despite the simple written form of the testamentary act, there are mandatory components of the testamentary act:

• The author of the testamentary instrument must write the text of the document in his own hand in legible handwriting;
• The full details of both the testator and each of the heirs are indicated, including the address of residence (initials and abbreviations should not be present). If several heirs are indicated, it is necessary to register the share of each of them for a certain property;
• The bequeathed property must be fully described (in the case of real estate, indicate its full address); The text must be clear, without double meanings;
• The testator must sign the document and also indicate the witnesses present.

A will made in simple written form in emergency circumstances must be certified by the court. Such proceedings may be conducted at the request of interested citizens. This requirement must be drawn up and submitted to the court no later than the end of the period specified for entering into inheritance. When registering heirs in a testamentary document, it is important to remember that certain persons have mandatory rights to inheritance, according to Article 1117 of the Civil Code of the Russian Federation.

What should the text of a will contain?

Regarding the issue of correct drafting and writing of the text of a will, the following important points should be noted. You should ask a notary for the correct sample.

Its text must necessarily contain the following information:

• FULL NAME. testator;
• Date of Birth;
• Permanent residence address;
• Details of the first page of the passport;
• Required information about persons who will acquire the status of heirs in the future;
• A detailed description of the property to be inherited;
• Date of document creation.

The last point deserves close attention. This is important, since incorrect indication of information regarding the place where the document was drawn up will serve as an undeniable argument if the interested person wants to invalidate the will through the court.

• The notary who will take part in the preparation of the document must provide a sample will for property, which will serve as an example in the preparation.
• The will must be written in two identical (identical) copies. In this case, one of them remains in the custody of the notary until it is claimed, the second will be stored directly with the testator.
• If we are talking about inheriting real estate, namely an apartment, then you should ask a notary for a sample of how to correctly draw up a will for an apartment.

If there is a desire or need, the drawn up will can be corrected or supplemented, additional conditions can be put forward, etc. The sample form of a will for an apartment is not specific for each copy, and depending on the circumstances, it is adjusted for a specific person.

Basic information in the will

When drawing up a will using a sample or yourself, it is important to indicate the following information:

• The subject of a will, that is, property that will be transferred to the heirs after the death of the author of the document.
• Full name of the heirs and testator.
• Their shares. It is important to accurately divide shares in property. In case of errors and inaccuracies, the will may be declared invalid.
• List of unworthy heirs (if the testator wants to exclude someone from the legal heirs).
• Place and time of making a will.
• Signature.

Additionally, special conditions for the transfer of property may be specified. For example, that a specific heir will receive an apartment upon reaching 18 years of age or after graduating from university, etc.

Form and type of presentation of information

All information in the will is presented in a strictly official form. The text also indicates that Article 1149 of the Civil Code of the Russian Federation was explained to the testator. The text of the will itself is written by the testator himself, and if he is illiterate or for other reasons, it is written by a notary, which must also be indicated in the text.

The text also indicates the number of copies of the will and who keeps them.

Signature Requirements

The testator must sign his order personally. In cases where he is illiterate and cannot sign, a third party is involved in this. An important requirement is that it should not be interested in this will, not be an heir and should not in any way influence the process of drawing up the document.

Drawing up a will in the presence of a witness is also possible in other cases at the request of the testator himself.

Making a will

The most common will is the will of property and business. Although there are other wills. If you live in a big city, a will can be drawn up at any notary. You can (if you are not going to move anywhere) draw up a will with the notary who handles inheritance affairs in your area. If the will is complex (a sample will will not work), then this advice is very effective, since a will from another notary may cause misunderstanding among the notary who will handle the inheritance case in the future. And if you made a will yourself, carry it out yourself! Here we must remember that after 01/01/2012, you can open an inheritance case with any notary. It’s better to contact the person who made the will.

If there is no notary in your location, the will, by law, can be certified by another official who will subsequently be responsible for its preparation, including such a person may be brought to court in disputes about the will.

Costs of registering a will

The Tax Code establishes that the state fee for approval of a document in 2020 is 100 rubles.

Additional expenses:

• drawing up a will by a notary - depending on the region;
• verification of an administrative document drawn up by the testator independently - from 100 rubles;
• making copies of documents – from 50 rubles.

For example, in 2020, the cost of preparing a will by a notary yourself in Moscow is 2,400 rubles.

How much does a will cost without a notary?

When drawing up a will without the participation of a notary, the state fee for drawing up the order is not charged. Alternative document certification is carried out completely free of charge.

Even a credit institution does not have the right to set prices for the execution of a testamentary disposition.

What is a testamentary refusal?

One of the forms of registration of the last will in relation to property is a testamentary refusal, when the circle of legal successors specified by the testator must perform certain actions in the interests of another person or group of persons. The law does not abolish the requirement to fulfill the will of the deceased, regardless of the grounds of inheritance (by law or in accordance with a will).

A testamentary refusal is also called a “legate”, and the condition of execution may be:

• allocation of property for use or ownership on behalf of the testator;
• transfer for use of other things included in the inheritance mass, in addition to real estate;
• execution of orders, services, work;
• payment of compensation in the amount established by the testator;
• vesting the heir with other obligations according to the will of the testator.

As with life occupancy, the obligation may last for a limited period of time, or it may be established indefinitely on a permanent basis.

Effective time

The will comes into force simultaneously with the opening of the inheritance, that is, from the date of death of the testator. From this moment, the appointed successors have the opportunity to accept the property, rights and obligations determined for them by the testator during his lifetime.

The date of opening of the inheritance is confirmed by the date indicated in the medical report and subsequently in the death certificate. If there is no such information (the body of the testator was not found), the day of his death is established by the court. This happens when:

• the testator did not appear at his place of residence and his family members did not hear anything about him for five years;
• six months have passed since he disappeared under life-threatening circumstances;
• the serviceman did not return to his place of residence and did not make himself known in any way from the day he disappeared and after two years had passed from the end of hostilities.

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It is important for heirs to remember that the validity period of a document is limited to six months from the date of death of its originator. After this period, the inheritance is considered not accepted and the rights to it are transferred to the designated successors, distributed among those who have already registered the property of the deceased or those who in this case acquire the possibility of inheritance by law.

The period can be extended only if the omission was made for valid reasons, and the “unpunctual” citizen will be able to prove this to the court. Or rely on the goodwill of the remaining heirs, who, after registering their rights, will give unanimous permission to include the late successor in their circle.

Probate costs

When drawing up a will, you will have to bear the costs of legal assistance and notary services. The latter service is mandatory, since without a notary mark, a document, even if it is drawn up in accordance with all the provisions of the law, will not be considered valid.

The amount of the notary's office fee is determined by the provisions of the Tax Code (Article 333.24) and is equal to 100 rubles.

An additional fee is paid for technical and legal services that often accompany the process of preparing a will. Prices at notary offices may vary in different regions, depending on the tariffs established in specific localities.

Who controls the fulfillment of the conditions?

Since inheritance under a will with a condition does not end with the announcement of the will of the deceased, it will take time to carry out and monitor compliance with the testator’s instructions.

In order to avoid confusion and confusion when checking whether the measures taken by the legal successors comply with the last order of the testator, persons referred to as executors of the will are involved, who are capable of monitoring compliance with the points specified in the will. If the heir has not fulfilled the will of the deceased, the powers of the executor include bringing the violator to justice and forcing him to carry out the testator's instructions in court.

The executor is appointed in accordance with Art. 1134 of the Civil Code of the Russian Federation, defining the range of possible powers:

1. Ensures the safety of inherited property with coordination of actions through a notary office.
2. Receives funds for transfer between the parties to the inheritance case.
3. Controls the transfer of property according to the order of the testator.
4. Conducts affairs and interacts on behalf of the testator with government departments and the court.

The task of the executor is to ensure the fulfillment of the last will of the deceased, and in case of violations, demand compulsory execution by turning to the court for help.

What grounds for challenge do the heirs use?

The notary, before signing the will, warns the testator about the risk of challenge if the successors do not agree with the stated conditions. If, after the death of the testator, his successors consider the terms to infringe on their rights, there is a possibility of an attempt to invalidate the contract in court.

The notary's goal, before certifying the will, is to foresee possible consequences and reduce the risk of their occurrence, however, it is impossible to fully foresee further developments in the life of the testator, which means the risk of invalidating a testamentary document with conditions remains high.

As a rule, it is possible to challenge a will, the terms of which the applicants are not satisfied with, in court if it is established that at the time of signing the testator was not aware of his actions and was not able to understand the legal consequences of the step.

A forensic psychiatric examination or identification of the fact of a long-term illness of the testator, which prevented him from realizing what was happening at the time of signing, can help with the challenge.

There are chances of challenging a will that contains illegal restrictions with the help of a competent lawyer. Factors that infringe on the rights of the heir may be the condition of registering a marriage with a specific person at the will of the testator, or a ban on the remarriage of the surviving spouse. Such measures are recognized as illegal, and it is possible to challenge the will by referring to the provisions of Art. 12 family legislation (RF IC).

Pros and cons of a will for the testator

It must be remembered that there are two main ways in which you can transfer your property into the possession of another person:

• Will.
• Deed of gift.

When drawing up a deed of gift, it should be taken into account that a citizen receives the right of inheritance immediately after the issuance of a certificate during the life of the owner. When drawing up a will, the heir receives this right after the death of the testator.

The main advantages of making a will:

1. The testator can change the will several times.
2. During his life, the owner can dispose of his property: rent it out, give it as a gift or sell it.
3. The document can be canceled at any time.
4. During his lifetime, the owner can amend the will.
5. The testator has full rights to housing until his death, only after which the will can come into force.

A will is the most acceptable way to transfer your property to a person with whom you are not related. For example, when a pensioner is cared for by a stranger to whom the owner wishes to transfer his property after death.

The owner of the apartment can be completely sure that after drawing up the will, the heir will not leave him without housing. Also, after a while, if circumstances change, the testator can change his will at any time.

There are also certain disadvantages to making a will:

1. Regardless of the will of the testator, there is a certain group of citizens who, according to the law, have the right to their share in the property left behind: children under 18 years of age, parents of retirement age, disabled citizens, incompetent persons.
2. In judicial practice, invalidation of a will occurs more often. This procedure can begin before entering into legal inheritance, but no later than a year after the death of the owner. Offended heirs may try to distort the will of the testator in court.

If we talk about the testator, he always remains in an advantageous position, because nothing threatens him in life.

A will drawn up in advance is a legal protection for an elderly person from scammers who may fraudulently try to take possession of someone else’s property.

How a lawyer can help

The process of drawing up and executing a will can cause many problems due to incorrect drafting of documents or non-compliance of the content with the law. By turning to a law firm for help, testators can correctly formulate possible factors that should be mentioned in the will, without the risk of facing a challenge after the death of the testator.

For heirs, legal support, on the contrary, will help to protest unfair, infringing decisions regarding the inheritance and the conditions for its re-registration. A detailed knowledge of the law will help to identify violations and have them declared illegal through the courts.