Inheriting a house: how to formalize the entry into inheritance rights to home ownership and land plot of the testator by law or by will

Right to inherit a house

Residential buildings, like real estate, after the death of their owner are inherited by his relatives. The procedure by which the acceptance of an inheritance occurs, the specifics of the transfer of inherited property to the heirs, is widely covered by the third part of the Civil Code (CC). Inheritance of a house occurs in two ways - by will or by law . The right to inherit it comes from the day when the inheritance opens . It will be considered accepted after receiving a certificate of right to it. But it will be possible to become the owner of an inherited house only if you have in hand a certificate of ownership of the said property.

Information

Heirs are individuals who, by will or by force of law, inherit the property of the testator after his death.

In the first case, the testator, during his lifetime, himself indicates those citizens to whom his property will pass. They can be family members and relatives, as well as close friends, or complete strangers. In the second case, the heirs are determined by the law , lining them up in a sequential order, guided by kinship and family relationships.

The closest family members and relatives will inherit the house first These include (Article 1142 of the Civil Code):

children of the testator - blood, adopted and newborns whom he conceived during his lifetime;
husband/wife who was/was in a registered marriage with the deceased;
parents of the testator, including adoptive parents.

In the absence of heirs of the first priority, the following relatives will be called second (Article 1143 of the Civil Code):

sisters and brothers of the testator, relatives of both parents or one of them;
maternal and paternal grandparents;

Thirdly , in accordance with Article 1144 of the Civil Code, the right to inheritance will be acquired by the testator's aunts and uncles . And so on.

Which of the distant relatives may be called to inherit is determined by Article 1145 of the Civil Code.

There are also situations in life when a relative, who is a potential heir, dies before the testator or at the same time as him. , heirs by right of representation are called to inherit :

grandchildren of the testator, as well as their descendants;
his nieces and nephews;
his cousins and brothers.

They will only be able to inherit the share of the house that was due to the deceased heir.

For your information

There is a category of persons who will be called upon to inherit in any case together with the heirs by will or by law, regardless of the will of the deceased testator and the intentions of the remaining heirs.

These citizens are called obligatory heirs and include:

minor or disabled children of the testator;
his disabled spouse and parents, as well as his dependents.

If we talk about disabled dependents, then what matters for inheritance is the period of maintenance of the testator, which is at least one year before his death and the opening of the inheritance. Also an important factor is their cohabitation , but only in the case when these persons are not among the heirs of any of the seven lines.

They can also inherit as independent heirs of the eighth order (Article 1148 of the Civil Code).

The house is inherited by law

Let us name the cases when it seems possible to inherit by law. This happens if :

the testator did not leave a will;
the testamentary disposition was made only for part of the house;
the heirs under the will did not accept the inheritance (they refused it, were declared unworthy by the court, missed the deadline established by law, etc.);
the will is declared invalid in court or due to its nullity.

The inheritance is opened by a notary after the death of the testator at his last place of residence, and if it is unknown, then at the location of the inherited house. For its adoption, the legislation provides for a six-month period , which it is advisable to observe, since if it is missed, it will have to be restored in court.

Relatives claiming to receive an inheritance must submit an application to the notary for its acceptance or for the issuance of a certificate of the right to inherit the house. The application is accompanied by the necessary documents and certificates, after checking which, the notary determines the final circle of heirs, their shares in the inherited property, draws up a certificate and issues it to the applicants.

If there are several heirs by law, they each inherit their share and as a result the house becomes their common shared property . They have the right to divide it or allocate shares from it, but to do this they must first enter into an agreement in accordance with the rules of Articles 158 - 164 of the Civil Code, which regulate the form of transactions. This can be done no earlier than after receiving a certificate of the right to inherit the house.

This agreement must be in written form . With this document, heirs can:

change the size of the shares that belong to them by law;
transfer ownership of the house to one of them;
divide the living space in kind, despite the discrepancy between the value of the divided parts and the shares due;
provide monetary or other compensation for such non-compliance.

Important

A situation is possible when a residential building received as an inheritance cannot be divided in kind. Then heirs who, together with the testator, owned the right of common ownership of it, as well as those who lived in it at the time of his death and the opening of the inheritance and do not have other housing to live in, will have a priority right to receive it.

In addition to the fact that the successors accepted the inheritance and received a certificate of the right to inherit the house, they must confirm their ownership of it. This is done by registering the transfer of such right with the registration service, which issues the corresponding certificate.

Only after all these procedures have been completed, the heirs become the full owners of their shares and can dispose of them individually.

House inherited by will

A will to inherit a house can be drawn up either in favor of one person or in favor of several persons, regardless of whether they are in any kindred relationship with the testator or not (Article 1116 of the Civil Code). Even an heir who has been declared unworthy by the court can inherit, but only if he is indicated in the will after he has lost the right to inherit by law.

When inheriting a house by testamentary disposition, the procedure for its registration is carried out either by the heirs themselves or by the executor specified in the will. As in the case of inheritance by law, an application is submitted to the notary at the place of opening of the inheritance for its acceptance or the issuance of a certificate of right to it, which are equivalent. Along with other mandatory documents, the notary is also provided with the will itself, which is checked for validity.

The orders for inheriting a house specified in a testamentary document depend solely on the will of its owner, who appoints successors, distributes shares between them, and deprives certain persons of the right to inheritance. But such freedom of will is limited by the existence of persons who have a legal right to an obligatory share in the inherited housing (Article 1149 of the Civil Code) and it is no less than half of what would be due to them if they inherited a house by law.

Example

Citizen D. bequeathed a private house in favor of one of her sons. After her death, he turned to the notary's office with a will and a corresponding application for the issuance of a certificate of the right to inherit the house bequeathed to him. The husband of the deceased, who is a pensioner, also filed an application to accept the inheritance according to the law. As a result of completing the documents, it turned out that citizen D. has two more adult daughters, one of whom has been disabled since childhood. In this situation, the disabled husband and daughter have the right to claim a compulsory share in the inherited house, since they are disabled dependents. It will be 1/6 share for each of them. According to the will, the son will receive the remaining part - 2/3 of the share.

If the specified house was acquired by the spouses during marriage and was their joint property, then the retired husband who survived his wife, in addition to the obligatory share in the bequeathed house, has the right of ownership to half of it. Then only half of the house that belonged to the deceased citizen D will be subject to inheritance under the will. Consequently, the shares of the compulsory heirs and the son’s share under the will will be 2, 1/16 and 3/8, respectively.

There are cases when the testator does not indicate the specific shares of the heirs in their absolute terms (1/2, 1/4, etc.). Then it is considered that the house is bequeathed to them in equal shares and after accepting the inheritance it becomes their common shared property. As in the case of inheritance by law, the heirs under a will will be able to divide it, or allocate their shares from it, by concluding an appropriate agreement among themselves, but only after they receive a certificate of the right to inheritance.

When bequeathing certain shares, the testator can indicate in the will which specific part of the residential building will be given to which of the heirs for use. This prevents possible disputes between them when accepting the inheritance and makes the inheritance process peaceful.

Is it necessary to re-register land after receiving an inheritance?

Whether ownership of land acquired through the inheritance process should be re-registered, each participant in this procedure decides independently.

As a rule, heirs refuse to register ownership in Rossreestr, due to the fact that this is a rather expensive procedure.

On the other hand, without properly registering his right, the actual owner will subsequently not be able to dispose of this plot of land at his own discretion, that is, for example, he will not be able to sell it or transfer it to his heir.

Registration of inheritance for a house and land

The inheritance of a private residential building is inextricably linked with the inheritance of the land plot on which it is located. In this case, the plot must be owned by the testator or belong to him on the right of lifelong inheritable ownership. Paragraph 4 of Article 35 of the Land Code (LC) clearly states that the alienation of a house located on a plot of land owned by the same person is carried out together with it. Conversely, this article does not allow the alienation of a land plot without a house located on it, if both real estate objects belong to the same person.

When inheritance takes place by law, no conflicts arise, which cannot be said about cases of inheritance by will. In practice, it often occurs when a testamentary disposition is made only for a residential building. As a result, it passes to one person, and the land is inherited by another person - the heir at law. Or the house and land are bequeathed to different heirs.

Without going into details of the contradictions contained in civil and land legislation, we can say that judicial practice in this matter is based on Article 130 of the Civil Code, which treats a land plot and a building on it as independent objects of ownership . Therefore, the courts recognize these wills as valid , and they find a way out of such situations either in determining the procedure for using plots of land, or in the acquisition by the owner of one of the real estate objects of another, or vice versa.

Attention

To register the inherited house and land by law or by will, the heir must, within the six-month period established by the Civil Code, calculated from the day the testator died, contact the notary’s office with an application. This may be an application for acceptance of an inheritance , or for the issuance of a certificate of right to it.

We have already noted that the two types of applications are equivalent, since in the first version, at the end, the applicant’s request for the issuance of a certificate is still indicated.

Based on the submitted application, the notary opens an inheritance case and issues the applicant for the inheritance a document confirming this. Next comes the collection of various documents, certificates and extracts, which are provided to determine the legality of the transaction, the composition of the inherited mass, the circle of possible heirs and the shares due to them in the inherited property.

Documents required for inheritance

Submitting an application to a notary to accept an inheritance consisting of a land plot and a house located on it requires the heir to provide a number of documents :

evidence:
on the ownership of both real estate objects;
documents:
confirming the degree of relationship between the heir and the testator (in case of inheritance by law);
certificate of the last permanent place of residence of the deceased , which must indicate all citizens registered at the time of his death, as well as the date of his discharge;
testamentary disposition (in case of inheritance under a will).

To register and issue a certificate of inheritance, you will additionally need the following documents:

cadastral passport for the house and land;
an extract from the Unified State Register confirming the absence or presence of an encumbrance on it (arrest, pledge);
and others (at the request of the notary).

Obtaining a certificate of inheritance

A certificate of the right to inheritance is issued to the heir upon his application after he has accepted it (Article 1162 of the Civil Code). The right itself comes earlier - on the day the inheritance opens. This document only confirms the fact of acquisition of inherited property. Therefore, even if the heir has not received a certificate, he has the right to use the house and land as inherited property.

This document is issued after the six-month period established by the Civil Code for accepting an inheritance. This applies to cases of both inheritance by law and by will.

For your information

The certificate can be issued earlier than the specified period if there is a need to dispose of inherited property. This is possible only if the notary has indisputable evidence that there are no other heirs.

A certificate of inheritance can be issued one for two real estate objects or two documents - separately for a house and a land plot. If there are several heirs, they can be issued either one common certificate , or, at their request, a separate document for each of them, which will indicate:

all property that is inherited;
the share due to the heir receiving this certificate;
information about the remaining shares that were issued according to separate documents to other heirs.

The certificate is a rather comprehensive document, as it contains a lot of information, such as:

date of issue;
details of the notary who executed and issued it (last name and initials);
the basis for extradition with reference to a specific article of the Civil Code - by will or by law;
data of the testator (full last name, first name and patronymic) and date of his death;
data of the heirs, their place of residence, in the case of inheritance by law - the relationship of the testator with them, their shares in the inheritance;
the composition of the inherited real estate (house and land), its location, estimated value, sending to title documents, as well as an indication that the transfer of ownership of it is subject to state registration;
number of the inheritance file and registration certificate;
the amount of state duty collected from the heirs for issuing the document;
a notary's signature certified by his seal.

The issuance of a certificate of ownership of the inheritance is preceded by payment of the state fee, which is calculated by the notary based on the value of the inherited property and the closeness of the family relationship of the testator with the heirs.

Information

Having a receipt for payment of the state duty makes it possible to register the transfer of ownership of the house and land.

How to find an heir

Often, when it comes to transferring ownership of land, the question may arise who is the heir and how to find him.

It must immediately be said that the search for an heir is not carried out by a notary.

Lawyers in this area recommend that the interested person contact the Russian Register with an application for an extract. From this document it will be clear which person was the last owner of the plot of land and after his death whether this territory was inherited or not.

Sale

The plot can be sold only after registration of its ownership . A certificate of inheritance does not give a citizen the right to dispose of a land plot.

The process of inheriting land is generally similar to this procedure for other types of property, but has several distinctive features. Do not forget about restrictions on inherited land for foreign citizens. Before visiting a notary, it is necessary to prepare special documents, as well as conduct an assessment of the land.

Methods of adoption and their differences

There are two ways to accept land as an inheritance: formally and informally . Both ways are described in detail in Article 1153 of the Civil Code of the Russian Federation.

The formal method is when the heir submits an application at the place where the inheritance was opened, in which he indicated that he is ready to accept the inheritance.
Such an application can be submitted in person, transmitted through a representative or sent by mail. Important! If the application is submitted through a representative, then his power of attorney must include the authority to accept the inheritance.
Informal way implies acceptance of a land plot as an inheritance without filing an application. That is, you can take certain actions in relation to the site, which will mean a desire to accept the inheritance. In accordance with paragraph 2 of Art. 1153 of the Civil Code of the Russian Federation, the actual acceptance of an inheritance to a plot will be recognized if the heir:
Took any action to preserve the site and protect it from third parties.
Paid the costs of maintaining the land.
Paid the debts of the deceased or received money from third parties due to the testator.

How long does it take to do this after the death of the owner?

After the death of a relative, the heirs have six months to accept the inheritance and register the land plot in their name. Grounds – clause 1 of Art. 1154 Civil Code. Six months are calculated from the date of opening of the inheritance.

The day of opening of the inheritance, on the basis of clause 1 of Art. 1114 of the Civil Code, consider the day of death of the testator.

But if a citizen received his rights to the plot due to the refusal of one of the other heirs from his share, then he has an additional three months after the end of the six-month period.

Features for foreign citizens

The law defines a number of restrictions on land inheritance for citizens of other states:

Firstly, foreigners cannot register ownership of land in border areas. That is, you can inherit the right to lease a plot, but you cannot accept ownership.
Secondly, foreigners cannot inherit lands that have a special regime of use. For example, agricultural areas. In both cases, if it is impossible to receive an inheritance, foreigners will be paid monetary compensation.

The amount of compensation is determined by the court . With the help of an independent examination, the market value of the land being inherited is established, and the court calculates the amount of compensation.

To receive compensation for the cost of the plot, the foreigner must sign a waiver of the property within a year after the opening of the inheritance. Otherwise, it will be a violation of the legislation of the Russian Federation.

State duty amount

Although the inheritance is not taxed, when registering it you must pay a state fee . The amount of the state duty is determined by Art. 333.24 Tax Code of the Russian Federation. The amount of the fee is the same both for inheritance by law and by will.

For close relatives

In the Russian Federation, the duty for children, wife or husband, brothers and sisters of the testator is 03 percent of the value of the inheritance. Moreover, the state duty cannot be more than 100 thousand rubles. (Clause 22 of Article 333.24 of the Tax Code)

For others

Other applicants for the property of the deceased will have to pay a fee of 0.6 percent of the value of the property. But no more than 1,000,000 rubles.

Who is exempt from paying?

Article 333.38 of the Tax Code of the Russian Federation lists categories of citizens who may not pay a fee for registering an inheritance. The state duty may not be paid if :

you inherit the property in which you lived together with the testator and continue to live there;
the testator died in the performance of official duties, civic duty or from political repression;
when inheriting copyrights and royalties, pensions, bank deposits.

State bodies, local government bodies and public organizations of people with disabilities are also exempt from paying the fee.