Will for an apartment: pros and cons of registration

What is better to draw up: a deed of gift or a will for an apartment?

to transfer an apartment free of charge : by donation and by will. Both options have their advantages and disadvantages, and the choice in each specific case will depend on the circumstances.

The donation of an apartment and its will are transactions, and therefore they have much in common, for example, the requirement for written form. Despite this, both options have significant differences .

All property belonging to the testator at the time of death can be bequeathed, while only specific items or rights are allowed to be given. Also, a will is accepted on the “all or nothing” , i.e. either the heir accepts everything that is bequeathed or does not enter into the inheritance at all. A gift, on the other hand, is a bilateral transaction that expresses the agreement of both parties on the merits of the transaction.

Attention

The deed of gift cannot provide for counterclaims to the donee, because the gift is always free and unconditional. Whereas in a will it is possible to impose an obligation on the heir to accept the inheritance.

Pros and cons of a will

Like any other transaction, a will has both advantages and a number of disadvantages. The choice between it and a deed of gift is influenced by many factors. The advantages of a will include:

Compiler's freedom . The testator has the right to distribute his property after death at his own discretion and deprive the right to inheritance without explaining his decision.
Possibility to cancel or change a will at any time.
Bequeathed property passes only after the death of the testator . As long as the testator is alive, the apartment belongs to him.
Low cost of notarization.
It is a fact that a will is the only way to dispose of property after your death.
The ability to put forward conditions that must be fulfilled when accepting an inheritance.

However, like any other type of transaction, a will has its disadvantages:

Only fully capable persons can make a will . These include adults and emancipated (i.e., minors, but recognized as capable) citizens.
Freedom of will is limited by Art. 1149 of the Civil Code of the Russian Federation , which states that disabled children, parents and spouses are required to receive a share in the inheritance.
Only one person can be a testator . The law currently does not allow the drawing up of joint wills.
In any case, the heirs must pay a state fee to receive the inheritance . The gift is not subject to any duties or taxes if made between close relatives.

Information

From June 1, spouses will be able to draw up a joint will. Corresponding amendments are made by Art. 2 of Federal Law No. 217-FZ of July 19, 2018.

Testator's rights

The will of personal property is included in the category of rights of every citizen of the Russian Federation. But not everyone can use it. From the point of view of the law, a testator cannot be:

minor right holder of living space;
a citizen suffering from a severe mental disorder (including a patient with senile dementia);
a minor testator over 14 years of age without the written approval of parents/guardians;
a person limited in legal capacity without the consent of the guardian.

The legislation gives the rest of the testators a wide range of powers regarding the preparation of posthumous orders. They have the right to choose any heir, including a foreign state or international organization, and also to establish special conditions of succession for them. Such conditions may include fulfilling the specified obligation, for example, caring for a pet or providing the specified person with a certain material benefit, the right to live in an apartment, etc.

It is important to remember the legality of the above and take into account the rights of not only the testator, but also the heirs. Otherwise, the will or its individual provisions may be challenged in court in accordance with Art. 168 Civil Code of the Russian Federation.

The freedom of will of the testator is also limited by Art. 1149 of the Civil Code of the Russian Federation. According to its provisions, the testator may not disinherit all heirs by law. His disabled parents, spouse and children, although not in full, can still count on an apartment after the death of a relative. They have the right to half the living space that would have been due to them without a will, but only under the following circumstances:

The apartment is the only or main object of inheritance. The fact is that, according to the law, the obligatory share must be intestate property, but if it is missing or its estimated value does not correspond to the size of the required share, the successors under the will will have to give up part of the living space due to them.
During the life of the testator, the closest disabled relatives did not commit actions against him that are classified by Article 1117 of the Civil Code of the Russian Federation as unworthy. Unworthy heirs may be recognized as unscrupulous heirs who fraudulently tried to take possession of most of the inherited property, committed illegal actions against the testator, or did not fulfill the obligations established by the court for his maintenance (concerns the payment of alimony).
The share due to them is significant in relation to the total size of the inheritance mass. Otherwise, the heirs of the majority of the apartment may go to court with a demand to exclude the “mandatory” successor from the list of legal holders of the inherited living space in exchange for monetary compensation.
The heir designated in the will has a separate home, did not live in the apartment before the death of the testator and is not its co-owner. Otherwise, his interests in relation to living space will be taken into account first of all when dividing the inheritance.

Otherwise, the rights of a citizen to the last expression of his will are unshakable. Their implementation will not be prevented even by the absence of title documents for the bequeathed housing and the right of ownership itself. A citizen can thus order the transfer of an apartment planned for acquisition in the future. The main thing is that by the time the inheritance is opened, the property is registered in his name and data about this is entered into the Unified State Register of Real Estate.

The list of powers of the testator also includes the cancellation and amendment of the act. Moreover, he can do this an unlimited number of times without explaining the reasons and notifying the heirs of the revoked will.

It is important for the testator to understand the principle of carrying out these actions: each subsequent expression of will cancels the previous one completely or in the opposite sense. But it is not necessary to replace irrelevant orders with new ones - to cancel them, it is enough to submit a separate document that deprives the will of legal force.

Where and how to make a will for an apartment

A will is written personally by the testator or a notary from his words. The Civil Code stipulates that the last will must be expressed in writing and certified by a notary.

The last will can be drawn up in free form, the main thing is that it accurately reflects the intentions of the testator - wills are interpreted literally, that is, in essence of what is written. Therefore, orders must be clear and avoid ambiguous interpretations.

Currently, a will can be written either by hand or on a computer. However, the typewritten method will be allowed until October 1, 2019, after which Article 3 of Law No. 34-FZ of March 18, 2019 will make appropriate changes to the Civil Code of the Russian Federation. Only handwritten wills will have force and legal significance .

In general, a will must be certified by a notary . Do not require notarization:

Wills drawn up in emergency situations that threaten the life of the testator, provided that two witnesses were present when drawing up and signing.
Testamentary dispositions in banks, which distribute money in the bank accounts of the testator among the heirs.

Important

A will, unlike other transactions, cannot be made by proxy - according to clause 3 of Art. 1118 of the Civil Code, the last will is drawn up personally by the testator or by a notary on his words.

Sample will for an apartment 2021

The law does not approve a strict sample will , however, there are general rules for drawing up a document that must contain:

Date and place of execution of the will.
Name, surname and patronymic of the testator, as well as his passport details.
Place of residence of the testator.
Information about the bequeathed property, showing what it is and where it is located.
Information about the heirs under the will, including: their full name, address and, at the request of the testator, inherited shares.
Personal signature of the testator.
If the testator, due to serious illness, physical disabilities or illiteracy, is not able to sign the will, another person signs for him at the request of the testator (the executor). The reasons why the testator cannot sign are also indicated.
Information about witnesses, if they were present during the drawing up and certification of the will, and their signatures.
A note on the notary's explanation of the provisions of the Civil Code of the Russian Federation on the obligatory share in the inheritance.
Information about certification of a will by a notary.
A note confirming payment of the state duty or notary fee.

Sample will for an apartment

How to make a will between close relatives

, close relatives are first called to inherit , and then others. The heirs receive the property in equal shares. All inherited property in the absence of a will is inherited in turns , each of which is called upon only in the absence or refusal of the inheritance of the previous one. Close relatives make up the first two lines:

husband, wife, parents and children;
sisters and brothers, grandparents.

Therefore, if the testator wants to distribute his property after death in a different way - for example, to give an apartment to his sister, depriving his wife of inheritance - then he will have to write a will.

Attention

When entering into an inheritance, no tax is paid, but a fee is charged . Unlike a deed of gift, close relatives of the deceased are not exempt from payment.

A will for close relatives is drawn up in the same way as for everyone else . So, in general, a will contains:

date and place of his imprisonment;
information about the testator, heirs and witnesses (if any);
information about bequeathed property;
information regarding notarization and payment of fees.

What documents are needed for registration?

The only required document for drawing up and certifying a will is an identity card , because when performing a notarial act, the specialist must verify the identity of his client. As a rule, a passport plays this role , but the law allows the presentation of other documents that clearly confirm identity, for example, a military ID or a sailor’s passport.

fully capable persons can draw up a will ; therefore, if a will is drawn up by a minor, it is necessary to prove that he is fully capable and has the right to make a will. Capacity can be confirmed by:

Marriage certificate, if the minor is recognized as having legal capacity as a result of marriage.
The decision of the guardianship authorities or the court on emancipation.

For your information

Adult citizens are considered fully capable until their legal capacity is limited by a court decision.

No other documents, including documents for the apartment , are required. According to Art. 57 of the Fundamentals of the Legislation of the Russian Federation on notaries, a notary, when certifying a will, has no right to demand from the testator evidence of rights to the bequeathed apartment.

Procedure for the testator

When making a will, a citizen should adhere to the following action plan:

Think over the content of the act of last will.
Contact a notary.
State your property dispositions on paper.
Seal the paper in an envelope and find two witnesses (this point can be skipped if an open will is being drawn up).
Provide a certificate of your own legal capacity, emancipation, or ask for consent to the act of expression of the will of your parents or guardians.
Submit the required documents.
Pick up your copy (if an open will is being drawn up).

Despite the ability of a legally competent citizen to annul or change an act of expression of will, established by law, it is recommended to determine its content carefully, because the testator cannot always predict further events in his life. Loss of legal capacity, serious illness or death will make the document being drawn up the last and secure its legal force completely.

Any specialist licensed for this activity can certify the act of expression of will. At the same time, its territorial jurisdiction does not matter. The main thing is that information about him is present in the database of active notaries on the website of the Federal Notary Chamber.

When presenting inheritance orders, the testator must pay close attention to the main requirement of the law on his own account - the stability of the psycho-emotional state and the ability to adequately perceive reality. The influence of narcotic and psychotropic substances, severe stress, a state of passion or mental disorder caused by other reasons may become grounds for challenging a will after the death of its author.

To eliminate this risk, the testator is recommended to prepare evidence of his sanity - provide a certificate of passing a medical examination, call witnesses who can refute the unfounded statements of failed heirs.

Next, you should pay attention to the form and content of the document. It is presented on paper by hand or using technical means. Moreover, the writing process itself can be carried out not only by the testator. If for some reason he is not able to express his will on paper with his own hand, a notary can help him with this, who, according to the words of the testator, will write down his posthumous orders. After this, the will-maker must independently re-read what was written and personally sign the act.

But here, too, exceptions are possible. A testator with poor eyesight has the right to entrust the reading of the will to a notary, but in this case it is recommended to involve witnesses in the registration process who will confirm the correspondence of what was read with what was written. It is also impossible to do without the participation of a third party if the testator is deprived of the opportunity to sign the will due to physical disabilities. In this case, a specially invited person signs the will instead of him.

Persons who are not interested in the subject of the will, who are literate, fully capable, who adequately perceive the essence of what is happening, and who are not among the following persons, can act as witnesses and executors:

a notary or other person certifying a will;
successors appointed and sub-appointed by the testator;
legatee;
close relatives of the heirs (spouse, parents, children).

If the testator belongs to the category of citizens whose legal capacity may be questioned, he is recommended to confirm his powers in advance. This can be done using the following acts:

a medical certificate indicating stable clarity of mind (especially relevant for testators over 70 years of age);
the court's conclusion recognizing the minor as emancipated;
a court decision to restore the legal capacity of a citizen who was previously deprived of it.

The act of expression of will of citizens with limited legal capacity must additionally be certified by their trustees or parents (applies to testators aged 14–18) through a separately stated and signed consent.

After writing and signing the will, the testator’s actions can be considered completed. Only the notary (another authorized person) is responsible for further execution of the registration procedure. He puts his signature on the document, certifying the seal, registers it and, together with the attached documents, sends it for storage until the appeal of the heirs or the testator himself (in case of cancellation or amendment of the act).

After making a regular, open will, the testator receives a second copy. If the document was certified in a closed form, its content is not duplicated, and the original itself remains with the notary until it is read out to applicants for the inherited apartment.

Cost of registering a will for an apartment with a notary

The will, according to paragraph 1 of Art. 1124 of the Civil Code of the Russian Federation, must be certified by a notary or other official if he has the right to perform notarial acts or his certified will is equivalent to a notarized will. The latter include:

Heads of local and municipal administrations and specially authorized persons, if there is no notary in the settlement or municipal area.
Officials of Russian consulates.
Chief doctors, their medical deputies or doctors on duty at hospitals, heads of hospitals, directors of nursing homes, if the testator is under their treatment.
Captains of ships flying the Russian flag.
Commanders of military units for wills of military personnel, and if there is no notary in the locality, then for civilian personnel.
Heads of correctional institutions.
Heads of expeditions, Antarctic stations and seasonal field bases.

When applying for certification of a will to a state notary office or to the heads of administrations, a state fee is paid . If the last will is certified by a private notary, then he charges a notarial fee equal to the state fee. According to paragraph 13 of Art. 333.24 of the Tax Code, the duty is 100 rubles.

Information

This fee applies to all types of wills, including closed ones.

When receiving an inheritance, no tax is paid , but you will have to pay a fee (or tariff) for issuing a certificate. The fee for issuing a certificate of inheritance depends on the value of the inherited property and on the family ties of the testator and heirs:

0.3% of the value of the inherited property, but not more than 100 thousand rubles, if the heir is the testator’s spouse, brother, sister, parent or child.
0.6% within 1 million, in other cases.

In addition, an additional fee of 300 rubles is established for opening and reading a closed will.

Features of the will of an apartment

When drawing up a will for an apartment, the testator must pay attention to the following points:

It is not necessary to provide title documents for the living space, since at the time of making the will the citizen may not officially be its owner.
The description of the apartment when expressing the will to transfer it must be accurate and as specific as possible, so that after the death of the testator, the notary and heirs can easily determine the object of inheritance.
When specifying a legatee, it is important to describe in detail the benefits due to him - what, in what amount and for how long he should receive from the heir. If the subject of the refusal is the right to reside in the inherited apartment, you can specify the period and conditions for its provision - a certain period of time, for life, etc.
If you acquire living space during marriage, you should take into account the right of the surviving spouse to half of it, even if, according to the will, he is not included in the list of successors.
A non-privatized apartment can be transferred as an inheritance, but it can become the property of a successor only if the tenant manages to privatize state-owned housing during his lifetime. Otherwise, the right to the bequeathed apartment is distributed among all its residents, one of whom has the right to renew the agreement for use.
When ordering the inheritance of an apartment, the testator also transfers his debts to his successors, the amount of which is proportional to the cost of the living space. But this does not make them debtors by default - they have the right to decide the issue of accepting an inheritance encumbered with monetary obligations themselves, and can simply refuse it if they wish.

Is it possible to bequeath a mortgaged apartment?

As a rule, transactions with property that is pledged require the consent of the pledgee (bank), which is difficult to obtain. However, you can also bequeath an apartment that is under mortgage . Based on clause 2 of Art. 1119, the owner of the mortgaged property has the right not to notify the bank either about the contents of the will, or even about its existence.

Attention

The bank does not have the right to prohibit bequeathing an apartment that is under mortgage. Any restrictions violate the provisions of Part 3 of Art. 37 of the Federal Law “On Mortgage (Pledge of Real Estate)” and are void.

According to Art. 38 of the Mortgage Law, by accepting a mortgaged apartment, the heir assumes all the obligations of the testator to repay the mortgage loan. If the apartment was passed to several heirs, then the debt is divided between them in proportion to the shares in the inherited housing. If none of the heirs accepted the apartment, then it goes to the bank.

How to draw up a will for an apartment so that it is not challenged

Challenging a will is permitted only on the grounds set out in the current legislation . In particular, a will can be challenged if:

the testator was not fully capable;
the testator could not understand what was happening;
the testator was deceived, intimidated or coerced into making the will;
the will was not written by the testator himself or by a notary from the words of the testator;
Several people will bequeath one document;
the will is not certified by a notary.

If the will is drawn up according to the rules, then it will be difficult to challenge it . The first proof of its validity will be the notary who certified the last will. When contacting a specialist, the specialist is obliged to check the client’s legal capacity and his ability to adequately perceive what is happening.

For your information

In addition to him, witnesses who can be involved in drawing up, signing and certifying the will can also confirm the legality of the will.

It is also possible, when registering a last will, to obtain certificates from drug treatment and psychoneurological dispensaries , which indicate that the testator is not registered with them.