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After the death of a citizen, as a rule, property remains, which is distributed among relatives. In practice, it is not always possible to formalize the right of inheritance by contacting a notary office. There are situations when resolving issues requires filing a lawsuit in court.
State duty for establishing the fact of acceptance of inheritance
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In order to recognize the fact of acceptance of the inheritance, this request should be addressed to the judicial authorities. Such an appeal is formalized by drawing up an application on behalf of the citizen claiming the inheritance. It should be noted that the procedure for considering such applications by the courts is not a claim, but a special one.
In order for the judge to accept and consider such an application, an indispensable condition must be met - the absence of objections from other heirs. If they also claim property and a conflict arises, the dispute will be resolved through a lawsuit.
In order for the case to end in a win and increase the chances of making the desired decision, a thorough and thoughtful preparation of the application should be carried out and an evidence base should be collected on which the citizen will base his position.
What information must be included in the application when applying to the court?
There are situations when citizens do not submit the required application to the notary's office at the required time, and there is a good reason for this.
In such situations, they have the right to refer this issue to a court for decision in order to be able to formalize the inheritance. The data contained in such a request is subject to certain requirements.
The following is the information that must be included in the application:
- Name of the court, full name and address where the person making the claim resides;
- Information about other citizens interested in the case - if there are any;
- Full name of the testator, the date when he died, his relationship to the applicant;
- List of property included in the inheritance;
- Evidence confirming that actions were taken indicating acceptance of the inheritance.
A sample statement of claim to establish the fact of acceptance of inheritance can be found here.
Along with documentary evidence, testimony of witnesses can also be used if they can confirm the circumstances necessary for the citizen.
It would be most advantageous to invite persons who were familiar with both the testator and the applicant to testify in the courtroom, and who would be able to confirm that the latter took measures to manage and protect the property.
The best option is if there are several such people.
- Explanation of the reasons why the citizen did not visit the employee of the notary’s office within the required period of time;
- The grounds on which the notary employee refused to draw up and issue a certificate;
- The applicant’s very request to establish the fact that he accepted the inheritance.
At the end of the application, documentation is listed that confirms the facts stated in it (presence of family ties, events of opening and acceptance of inheritance)
Each notary uses his own sample application. Therefore, you should not complicate your life, you just need to follow the generally accepted rules.
The number of copies of the application must coincide with the number of persons participating in the case. You will also need two copies to submit to the court, to the notary officer, and a copy that will remain with the applicant.
According to what order of inheritance occurs according to law?
How much does it cost to accept an inheritance from a notary, read here.
Appeal
An unfair court decision can be appealed by one of the participants in the case. First, an appeal is filed (within a month from the date of the disputed judicial act). A statement about this is brought to the court of first instance, where the case was previously considered, and then transferred to a higher body of justice - the court of the subject (federal city, region, territory, autonomous district, etc.).
The appeal describes the details of the previous process, indicates the mistakes made, the arguments that led the applicant to this conclusion, provides evidence and makes demands regarding the elimination of detected violations.
The court considers the complaint and makes a ruling to cancel the act, partially amend it, recognize it as lawful, or make a new decision on the case. But, if the applicant is not satisfied with the result of the review, he can formulate his dissatisfaction in a cassation appeal and submit it directly to the presidium of the subject’s court. This will be the third instance of the proceedings. You must have time to declare this within six months from the date the appealed decision enters into legal force.
A cassation appeal is drawn up according to the structure of a statement of claim, with a content similar to an appeal, but listing a complete list of judicial acts issued in the case at the first and second instance, as well as indicating information about the progress of previous hearings.
Which categories of applications must be submitted to which courts?
Which court will examine the case depends on the essence of the citizen’s claims.
Therefore, based on this criterion, applications are divided into two types:
- Applications containing a request to establish the fact of acceptance of the inheritance;
- Statements of claim also containing a demand to recognize ownership.
These types differ as follows - whether there is a dispute about inherited property or not. Also, other demands may be made in the claim.
For example, if in the text of the application, which contains a request to establish the fact of acceptance of the inheritance, a request is added to recognize the citizen as the owner of the property related to the inheritance, then it will go into the category of claims.
Such cases fall within the competence of district (city) judicial authorities located in the place of residence of the person filing the application. If there is real estate among the inherited property, then the problem will be dealt with in the court located at its location.
Claims in which citizens demand to establish the actual acceptance of the inheritance and recognize them as owners are submitted to the judicial authorities of the district (city) where the property is located.
If an employee of a notary's office unreasonably refuses to issue a citizen with documents confirming the rights to inheritance, he has the right to appeal such actions to a judicial authority.
We can talk about unlawful actions of a notary employee when the heir presented him with real confirmation that there was a fact of acceptance of the inheritance by performing certain actions.
Defendant and plaintiff
Initially, the plaintiff is the subject of legal law who filed the application to the court. If the application is filed due to a missed deadline, indicating a valid reason, then the defendant will be the one who has already inherited the property.
If there are no such people, then the district or city administration automatically assumes inheritance rights. She will be the owner of the torn property and the defendant.
When considering inheritance disputes, the court may require the participation of a third party. This may be a notary who refused to register an application for inheritance.
In some cases, the notary himself may be the defendant if, during the process of preparing documents, he accidentally or intentionally made any mistake. The task can be simplified by writing a complaint about the unlawful actions of a notary.
If the complaint is drawn up correctly and has an evidentiary basis, the certificate of inheritance will be declared invalid.
Sometimes all parties to the conflict are defendants and plaintiffs if applications are submitted simultaneously or counter-intentionally.
The state duty when establishing the fact of acceptance of an inheritance is 300 rubles and:
- up to 20,000 rubles - 4 percent of the claim price, but not less than 400 rubles;
- from 20,001 rubles to 100,000 rubles - 800 rubles plus 3 percent of the amount exceeding 20,000 rubles;
- from 100,001 rubles to 200,000 rubles - 3,200 rubles plus 2 percent of the amount exceeding 100,000 rubles;
- from 200,001 rubles to 1,000,000 rubles - 5,200 rubles plus 1 percent of the amount exceeding 200,000 rubles;
- over 1,000,000 rubles - 13,200 rubles plus 0.5 percent of the amount exceeding 1,000,000 rubles, but not more than 60,000 rubles.
Rationale:
The requirement to establish the fact of acceptance is directly related to the requirement to recognize property rights by inheritance.
Thus, the first requirement is non-property, that is, it is not subject to assessment and is subject to state duty in accordance with clause 3, part 1, art. 333.19 Tax Code of the Russian Federation.
The second requirement is property, that is, it is subject to assessment and is subject to state duty in accordance with clause 1, part 1 of Art. 333.19 Tax Code of the Russian Federation.
Important:
- If the filed claim contains claims of both a property and non-property nature, then the state duty established for claims of both a property and non-property nature is subject to payment in the manner and amount established by Art. 333.19 Tax Code of the Russian Federation.
- If the filed claim contains several claims of a non-property nature, then each additional claim is subject to payment in the amount and manner established by Art. 333.19 Tax Code of the Russian Federation.
- For claims of a property nature, the state duty must be calculated based on the price of the claim, that is, the value of the share of property claimed by one of the parties.
- Persons named in Art. Art. are exempt from paying state duty. 333.35, 333.36 Tax Code of the Russian Federation.
Laws governing fees on property claims
The following laws and regulations regulate the preparation of claim documents, calculation of their price, benefits and the trial procedure in
- Federal Law No. 143 of November 15, 1997 “On acts of civil status”;
- Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 11, 2012 No. 29 “On the application of civil procedural legislation by courts”;
- current legislation on the work of courts in Russia;
- Tax Code of the Russian Federation, Art. No. 333;
- Code of Civil Procedure of the Russian Federation, Art. No. 234.
The calculation of the state duty and the procedure for its payment must be carried out on the basis of these laws.
Entering into inheritance through court
In the case where you did not contact a notary and did not receive a certificate of inheritance, you will have to formalize your rights as an owner in court, because The notary accepts applications from heirs only within 6 months from the date of death of the testator.
In order to formalize your rights to an apartment or house after the death of the testator, you will need to file a statement of claim presented below, pay the state fee for filing it with the court, and provide the court with the necessary evidence of your rights in relation to this property. When filing a claim for recognition of your rights as an heir, take an extract from the Unified State Register of Rights (USR). It will be needed so that the court can see that the disputed property (apartment or house) is indeed still registered in the name of the testator.
Attached documents
The package of documents required to consider the claim includes:
- original and copy of the statement of claim;
- identification document of the plaintiff (copy of passport, birth certificate of the minor, his representatives);
- a will (if any) with a notary’s note on the authenticity of the document;
- documents certifying relationship with the testator (birth certificate, marriage certificate);
- certificate from the place of residence of the heir;
- death certificate of the owner of the property (copy);
- indication of property to be inherited; information about the technical characteristics of the property or data about the parameters of the land plot (land survey plan, extract from the cadastral passport);
- documents certifying the fact of cohabitation with the testator, certificates of payment of debt obligations, contributions;
- receipt of payment of state duty.
The list of documents may be changed depending on what property is being inherited.
