How to make a will and properly manage your property

2024 Author: Malcolm Clapton | [email protected]. Last modified: 2023-12-17 03:44

What is a will? How to compose it? Can relatives be deprived of their inheritance? The answers to these and other important questions are in our article.

Life is fleeting and unpredictable. Every person is faced with inheritance at least once. At least when he becomes a testator.

According to the Federal Chamber of Notaries, over three million certificates of inheritance rights are issued annually. But between 2007 and 2013, only 700,000 wills were made. This means that only one in four people leave orders in case of their death.

Why? There are at least two reasons. First, it’s unpleasant to think about death. Fears and superstitions prevent people from rationally approaching the issue of inheritance.

Reason number two is legal illiteracy. Many simply do not know what a will is from a legal point of view, they confuse it with donation and rent. In addition, it is troublesome - you need to go to a notary, pay a lot of money. Perhaps the relatives themselves will somehow agree.

But, according to judicial statistics, about 7% of all civil cases are hereditary disputes. The division of the property of the deceased often quarrels families and destroys the fate of people. Making a will in the present can help to avoid future problems.

What is a will

In Russia, inheritance is carried out on two grounds - by law and by will - and is regulated by Section V of the third part of the Civil Code of the Russian Federation.

A will is a disposition of property in case of death.

Moreover, this order should be:

• Personal (parts 3 and 4 of Article 1118 of the Civil Code of the Russian Federation). Drawing up a will through a representative is not allowed. You cannot make one will for two. The will is signed with his own hand. Exception: when a person is seriously ill, you can resort to the help of a batter, about which a special note is made in the document.
• Free (Article 1119 of the Civil Code of the Russian Federation). The principle of freedom to draw up a will is multifaceted. You can dispose of your property as you like (and not only those that you already own, but also those that you can acquire in the future). You can deprive of inheritance without explanation. You can change and revoke your will. But the main thing is that you are not obliged to inform anyone about your decisions, and a notary has no right to violate the secret of a will (Article 1123 of the Civil Code of the Russian Federation).
• Competent (part 2 of article 1118 of the Civil Code of the Russian Federation). A will can only be drawn up by a fully capable citizen - one who has turned 18 years old (or 16 years old - in case of marriage or emancipation) and who is accountable for his actions.

The main difference between inheritance by will and inheritance by law is that you can distribute the inheritance in any proportions, bypassing the line of inheritance. There are eight of them by law. The heirs of the first stage are children, spouse and parents. If there is no will, then the property will be divided between them in equal shares. In the will, you can write off everything to the grand-niece or even to an outsider natural or legal person. At the same time, you can distribute property as you think is fair: this one - an apartment, this one - a car, and this one - only a flower pot.

Freedom of will is limited only by the rules on the compulsory share.

Mandatory share

This is the legally guaranteed minimum in the inheritance, which must be allocated to the obligatory (necessary) heirs.

Necessary heirs include:

• disabled or minor children, as well as disabled spouse and parents;
• other disabled persons who were dependent on the testator.

To determine the size of the compulsory share, the amount of the value of all inherited property, including household items, must be divided by the number of heirs who would have been called to inherit in the absence of a will. One second of the legal share is a mandatory share.

For example, the value of an asset of the estate is a million rubles (for ease of understanding, we will count in monetary terms). By law, the deceased has four heirs. Each of them would have received 250,000 rubles. The obligatory share in this case will be 125,000 rubles.

It will have to be paid, even if the required heir is not mentioned in the will or is disinherited. Only a court can reduce the size of the compulsory share or refuse to award it (part 4 of Article 1149 of the Civil Code of the Russian Federation).

Not a gift and not an annuity

By its legal nature, a will is an urgent unilateral transaction. This means that you do not need contractors. It is not necessary to ask the heirs' opinions, their signatures will not be required, and the legal mechanism of this transaction will begin to move only at the moment of opening the inheritance - the moment of death of the testator (Article 1113 of the Civil Code of the Russian Federation).

Remember! Property can be disposed of in case of death only through a will.

According to part 3 of article 572 of the Civil Code of the Russian Federation, an agreement providing for the transfer of a gift to the person gifted after the death of the donor is null and void. If a grandmother "gave" an apartment to her grandson, but during her lifetime did not re-register the title to him, such a gift is worthless. Even if there is a written donation agreement. After the death of the grandmother, other heirs can claim the rights to this apartment.

There are also wills, where a specific person is called the heir to a specific property. At the same time, it receives the specified property for use even during the life of the testator in exchange for the lifelong maintenance of the latter. The same example: a grandmother made a will for her grandson, he settled in her apartment and looked after her until the end of her days. But de jure, such a deal is bilateral, and de facto it boils down to a dependent life annuity contract. And, if, after the death of his grandmother, other heirs go to court, he can annul the will, guided by part 2 of Article 170 of the Civil Code of the Russian Federation on sham transactions.

How to make a will

A will is a strict transaction. It should be:

• compiled in writing (indicating the place and time of compilation);
• signed with your own hand;
• notarized.

But, as with any rule, there may be minor exceptions. So, it has already been mentioned about the bruiser. This is a person who has the right to sign for the testator if, for objective reasons, he is not able to do so. A punisher is a capable, competent, absolutely outsider, disinterested person not from the circle of heirs.

In addition, the law provides for cases when a will can be certified not by a notary, but, for example, by the captain of a ship on a long voyage, or the head of a medical institution. Such orders are equated to notarial orders (Article 1127 of the Civil Code of the Russian Federation), but by no means are they identical. If, having drawn up a notarial will, you find yourself in some extraordinary circumstances and decide to change everything, a document drawn up by a notary will be valid. Despite the rule “a later will overrides the previous one” (more on this below).

Open or closed will

In general terms, the execution of an open will is as follows. At your request, the notary draws up a draft of it (in duplicate). At the same time, if you dispose of the existing property, it will not be superfluous to provide documents of title (certificate of ownership of real estate, title deeds, and so on).

After examining the project, you sign the will in the presence of a notary, and, if desired, also witnesses. They will read the text and put their signatures. Like a batter, witnesses must be competent and financially uninterested.

After that, the notary makes a certification inscription on both copies of the document, puts a signature and seal. One copy of the will remains in the notary's office, and the second is given to the testator. But, if you want, the notary can accept both documents for safekeeping.

The place and date of its certification must be indicated on the will. Without them, it is not valid.

Legislative innovations are gradually beginning to apply, according to which a video of your last will can be attached to a written document. It is also allowed to record on video the notarial procedure for certifying a will.

The text of a closed will until the opening of the inheritance should not be known to anyone except the testator himself (Article 1126 of the Civil Code of the Russian Federation). You write the document yourself. By hand or on a computer - it does not matter, the main thing is your own signature (no handwriter). Then you give the will in a sealed envelope to the notary in the presence of two witnesses. Witnesses sign on the envelope, after which the notary puts the will in the second envelope, seals it and makes his own attestation inscription. The document is kept by a notary, you will only have a certificate of acceptance of a closed will.

But how will the heirs find out about the will? After all, you can not talk about its compilation. When the heirs apply to the notary office at the place of opening of the inheritance (this is the last place of residence of the testator or, if it is unknown, the location of the main part of the property - Article 1115 of the Civil Code of the Russian Federation), the notary will inform them about the presence of a closed will, and then in the presence of two witnesses under the protocol will open and read it out.

Disinheritance

Heirs are persons indicated in the law or the will as the legal successor of the testator. In a will, without regard to family ties, you can appoint any heir: a citizen, a legal entity, the Russian Federation, its subject, a municipality, a foreign state or an international organization.

Also, the testator has the right to deprive those to whom it is due by law, but who does not deserve it. There are two ways.

1. Directly list the persons whom you do not want to see as heirs. Then they will receive nothing (except for the obligatory share).
2. Not to mention someone in the will. However, in this case, the heir who is not specified in the will by law may claim the property not covered by the will.

Example 1. A grandmother has an apartment and a summer residence. She draws up a will, where she directly indicates that all her property should go to her grandson, and she deprives her son of inheritance. If the son is able to work, he will not receive anything.

Example 2. The grandmother indicated in the will that she was leaving the apartment to her grandson, but forgot to mention her son and her dacha. Then the dacha will go exactly to the son, since by law he is the heir of the first stage.

Example 3. If the grandmother writes in the will: the apartment - to the grandson, the son - to deprive her of inheritance, while she will not mention the cottage again, then the suburban real estate, in the absence of other heirs according to the law, will go to the state.

According to part 1 of article 1117 of the Civil Code of the Russian Federation, unworthy heirs do not inherit either by law or by will. These are citizens who have committed or tried to commit a crime for the sake of inheritance, parents deprived of their rights, as well as children who neglected the obligation to support elderly parents.

The heir is recognized as unworthy by the court at the request of the person concerned. Returning to example number two, that person is a grandson. He needs to prove in court that his father did not look after his mother and is unworthy to inherit the dacha.

However, the grandmother can forgive the prodigal son and include him in the will. Even if he did not care about her, even if he offended and threatened her, even if there is documentary evidence of this. The law allows.

Renunciation of inheritance

Inheritance is a set of property and non-property rights and obligations belonging to the testator. These rights and obligations are transferred to the heirs in the order of universal succession, that is, at one time and in full.

Acceptance of inheritance on condition or with a reservation is not allowed.

To accept an inheritance means to receive all rights and take all obligations within the limits of your share. If, together with the apartment, your grandmother "bequeathed" utility debts to you, you will have to pay or refuse the inheritance.

According to article 1157 of the Civil Code of the Russian Federation, the heir can refuse the inheritance in favor of another person from among the heirs by law or by will (not deprived of inheritance).

If you do not know to whom to give the wealth that has fallen on your head, you do not have to indicate in favor of whom you are refusing. Then, according to article 1161 of the Civil Code of the Russian Federation, an increase in hereditary shares will occur.

But you can't change your mind (at first they refused the inheritance, then they decided to take it). But the testator can change his mind as many times as he wants.

Amendment and revocation of a will

One of the reasons people don't make a will is the fear of irreversible consequences. It seems to many that if they have drawn up a will, then nothing can be changed.

According to part 1 of Article 1130 of the Civil Code of the Russian Federation, the testator has the right to cancel or change the will he made at any time after it was made, without indicating the reasons for its cancellation or change.

Change and cancellation are two legally different actions. In the first case, individual provisions are rewritten or added. For this, a new document is being drawn up, where the previous orders are clarified and supplemented. For example, a grandmother still bequeaths an apartment to her grandson, but decides to give the washing machine to a neighbor. In this case, the changes must be notarized. Simple additions and corrections on the copy kept by the testator have no legal force. The inheritance will be carried out according to the copy of the will that the notary had.

When revoked, the old will is completely invalidated. The rule applies: the subsequent will cancels the previous one, even if there was no direct indication of this in it. To revoke a will, you need to bring a new one to the notary's office, or simply write a declaration of cancellation and not draw up any more document.

Invalidity of a will

The will creates rights and obligations after the opening of the inheritance. But the person who made it up is no longer alive - one cannot ask what exactly he had in mind, whether he was aware of his actions. Therefore, Article 1131 of the Civil Code of the Russian Federation provides for the possibility of invalidating a will.

Depending on the grounds for invalidity, a will may be voidable or null and void.

The will can only be challenged in court.

According to part 2 of article 1131 of the Civil Code of the Russian Federation, a will can be declared invalid by a court at the suit of a person whose rights or legitimate interests are violated by this will. It is not allowed to contest the will before the opening of the inheritance.

You can go to court if the will contains any unlawful orders or it was drawn up with the aim of “covering up” another transaction. Lawyers call this content flaws.

Also, a will may be invalidated (in whole or in part) if the heirs have reason to believe that the testator did not give an account of his actions and could not direct them. For example, if it is known that the grandmother was taking strong drugs during the period of writing the will.

When filing a claim for invalidation of a will, it is necessary to provide evidence (documents, testimony of witnesses, and so on). The court will consider all the circumstances of the case, resort to the interpretation of the will (Article 1131 of the Civil Code of the Russian Federation) and make a decision.

Void wills are those, when drawing up which the form required by law was not observed. For example, if the grandmother simply drew up a document at home and did not take it to the notary. A correctly executed document containing some kind of misspellings in the text will be valid provided that these errors do not interfere with the understanding of the testator's will. In addition, a will made by a completely incapacitated person or through a representative is void.

Special orders

The question of inheritance is not only a question of property. Of course, a will is mainly made in order to decide who to give housing, land or money. But the hereditary mass can also include intangible goods. Therefore, the law makes it possible to make special testamentary dispositions.

These include:

• Appointment of an heir (part 2 of article 1121 of the Civil Code of the Russian Federation). This is the choice of a "reserve" heir in case the one to whom you intended to bequeath everything dies before the opening of the inheritance.
• Testamentary waiver (Article 1137 of the Civil Code of the Russian Federation). This is the assignment of property obligations to third parties on the heirs. For example, a grandmother gives an apartment to her son, but indicates that her granddaughter can live in it until she gets married.
• Imposition (Article 1139 of the Civil Code of the Russian Federation). It is the responsibility of the heirs to do something good and useful. These can be actions of both a property (make repairs in a shelter, buy a stroller for a disabled child, and so on), and non-property actions (make a gallery out of bequeathed paintings with free admission).
• Appointment of the executor (Article 1134 of the Civil Code of the Russian Federation). This is the choice of the executor of the will. The executor of the will is a very important figure. He not only looks after the property until it is handed over to his heirs, but also carries out orders for the funeral. For many people, it is important where and how the memory of them will be perpetuated.

On the verge of change

Life is fleeting and unpredictable, and a will is like an airbag in a car. In the event of a clash of interests of the heirs, it can save the family from destruction.

Summing up, it should be noted that the legislation on inheritance is on the verge of major changes. The State Duma is considering a bill that could revolutionize inheritance by testament.

In particular, it is proposed to allow spouses to draw up a joint will. It is planned to change the order of inheritance with the simultaneous (in one day) death of the husband and wife. But, perhaps, the main innovation of the bill is the ability to conclude direct contracts with potential heirs. In this case, the legal nature of the will changes, it ceases to be a unilateral transaction.

Time will tell where regulatory innovation will lead, but for now, let's discuss the will as such. Do I need to compose it? Do you plan to dispose of your property in advance? Share your thoughts and experiences in the comments.