Purchasing housing that the seller inherited is dangerous due to the high probability of falling into one of the fraudulent schemes. Unscrupulous people seek to sell the disputed property in a short time and at a reduced price, realizing that there will still be legal proceedings with other applicants who want to get their share. To avoid problems, it is necessary to check the authenticity of title documents and make sure that no one else will have rights to a share of the apartment. The issues related to the purchase of inherited property are described in more detail in the Civil Code of the Russian Federation and the Resolutions of the Plenum of the Supreme and Constitutional Court.
Basics of inheritance law
The process of buying an apartment inherited is characterized by certain risks and problems that arise from them. You can protect yourself by studying the main nuances of inheritance:
- You can inherit the property of the deceased according to the legal or testamentary principle: In case of legal inheritance, the inheritance is divided equally within the priority order. There are 8 hereditary groups in total. If there are no representatives of the first category, then the turn moves to the second and so on.
- If the testator is against legal division, then he has the right to draw up an inheritance agreement, independently indicating the applicants. In the document, the owner of the property can prescribe certain shares for each heir or indicate a testamentary refusal, that is, certain conditions for receipt.
Priority of applicants
The succession queues in descending order (from 1 to 8) are as follows:
- First group: adopted or natural children;
- husband or wife;
- father mother;
- grandchildren, granddaughters, if there are no surviving children.
- grandmothers, grandfathers;
- sisters, brothers of parents;
- parents of the deceased's grandparents.
- sisters and brothers of the deceased's grandparents;
- cousins: great-grandchildren;
- children of the wife or husband;
- citizens who are dependent on the testator (pensioners, disabled people).
The common-law spouse is not an heir.
The exception is cases of confirmed dependency or a will written in the name of the husband or wife, however, relatives from the first priority group will still be able to claim their legal shares. There is also a ninth group, represented by the state. Such inheritance becomes relevant in the following cases:
- There is no will and persons representing categories 1-8.
- Heirs have no right to receive the property of the deceased.
- During the approved period, no one entered into inheritance rights.
- The applicants signed a waiver of the deceased's property.
Definition of the concept of “testamentary refusal”
The phrase “testamentary refusal” means the reluctance of the testator to transfer property to the heir without fulfilling certain conditions. For example, by his last will, the deceased citizen obliged the applicant for the inheritance to move another person into the transferred apartment. The heir's instructions must be followed if the person claiming the property of the deceased wishes to inherit. Otherwise, the property will go to the next in line applicant. The moment is regulated by Article 1137 of the Civil Code of the Russian Federation.
Risks associated with purchasing inherited housing
Purchasing an apartment received by inheritance has certain risks associated with the incomplete process of inheritance or the presence of controversial issues. Depending on the principle of transfer of property, it is worth considering 3 groups of different unforeseen situations:
- Entry into legal rights of inheritance without a will: up to 3 years;
- more than 3 years.
If the property was recently inherited
According to lawyers, purchasing an apartment inherited and owned by the seller for less than 3 years has the highest risks. The opinion is substantiated by the current limitation periods, entry into inheritance rights and testamentary refusal. The largest number of lawsuits are filed in the first two years from the moment the heir receives the property of the deceased. Late clarification of the circumstances of the case is usually associated with the following difficulties:
- Restoration of lost documents by other applicants.
- Unfinished legal proceedings in cases of property division.
- Ignorance of the heirs about the death of the testator.
A valid reason for the belated entry into inheritance rights may be circumstances that prevent the applicant from submitting documents:
- undergoing a course of treatment;
- stay in another country;
- serving a prison sentence;
- service in the armed forces.
The general list of risks of acquiring recently legally inherited property is as follows:
- The primary applicants for the inheritance turned to the legal authority in order to receive their part of the inheritance.
- Unscrupulous sellers did not inform the buyer about the presence of encumbrances on the apartment.
- A citizen who inherited property is recognized as an unworthy claimant at the request of interested parties.
- The husband of the deceased demanded, in addition to the share of the property, his legal half.
Buying an apartment by inheritance that has been owned for less than 3 years will not lead to anything good in any of the mentioned cases. The transaction may be declared invalid, or the seller may be required to pay compensation. Such issues are resolved in court.
Risks when purchasing property received under a will
By drawing up a will, the testator narrows the circle of claimants and reduces the likelihood of disputes arising. Problems arise extremely rarely and are associated with incorrect division of property or the absence of persons included in the priority queue in the document. Such circumstances can emerge at any time, so certain risks always remain relevant when purchasing housing received by the seller under a will:
| Circumstances | Description |
| Relatives challenged the will | Any representative of the priority order of heirs has the right to file an application to recognize the document on the basis of which the division of the inheritance took place as invalid. The grounds for challenging a will are usually the following: • the testator is declared incompetent; • a will was drawn up under the influence of alcohol, drugs or in a state of passion. • pressure was exerted on the testator by third parties. |
| There are testamentary refusals | The testamentary refusal does not cease to be relevant even after the sale of the property. An unscrupulous seller may not inform the buyer about existing conditions and encumbrances. |
| Availability of other legal claimants to the inheritance | Claimants from the first group and dependents of the deceased have the right, despite the written will, to demand their legal share of the apartment even after its sale. |
| The citizen who received the property is recognized as an unworthy heir. | The moment is relevant for both principles of inheritance distribution. The court makes a decision based on the evidence presented by the interested parties. |
Property inherited more than 3 years ago
The risks when purchasing an apartment inherited more than 3 years ago are significantly reduced. The statute of limitations has expired, therefore, the likelihood of third parties encroaching on the acquirer’s property is reduced. The exception is cases of deliberate concealment of the fact of the death of the testator. The applicant has the right to submit an application for restoration of the statute of limitations and recognition of the legal share of the inheritance. Such disputes are considered within 10 years from the date of death of the testator.
How to sell an inherited apartment without paying tax
Is inheritance taxable upon sale? No, if the residential premises have been owned by the owner for more than 3 years .
The rule applies to both the entire property and shared ownership. If inherited property is sold before the established minimum period, then it is subject to personal income tax on a general basis.
Example. The taxpayer inherited a 2-room apartment. After 6 months he decided to sell it. The cost of the property is 3,000,000 rubles. The tax amount will be (3,000,000 - 1,000,000) × 13% = 260,000 rubles.
If the taxpayer buys a new home in the same year, the tax may be calculated according to a different scheme.
Examples of situations
A citizen who wants to purchase housing received by inheritance must take into account possible risks and check the seller’s arguments. Otherwise, you will have to protect your rights in court from encroachment by third parties on the purchased property:
| List of problems | Description |
| The deceased did not live with his wife for some time, which became the reason for the late identification of the circumstances of death | The spouse has the right to apply to the court for the division of jointly acquired property and receiving a share of the inheritance. Compensation is usually collected from the seller. Only unscrupulous transactions are terminated. |
| The testator outlived his children, so the property was transferred to persons from the second stage. The grandchildren learned about the inheritance only several years later and demanded their share by right of representation. | The property should have passed not to the seller from the second stage, but to the grandchildren by right of representation, since their parents died before the testator. It is enough for applicants to justify a long absence and petition for the cancellation of transactions for the alienation of the property of the deceased or payment of compensation. |
| There is evidence of an illegal will | Interested parties have the right to submit an application for invalidation of the will to a legal authority. If significant evidence is presented to the court, the seller will be recognized as an “unworthy heir” and will be obliged to pay the shares due to other applicants. |
According to lawyers, if fraudsters are not involved in the case, then only the following persons are to blame for the controversial issues:
| Responsible person | Actions taken |
| Notary | The functions of notaries, according to the Civil Code of the Russian Federation, include only the opening of an inheritance case at the request of applicants. After 6 months from the date of death of the testator, the property is distributed among the relatives who declared themselves, according to the legal or testamentary principle. Within 3 years, it is permissible to submit an application to restore the deadline for entering into an inheritance if there are good reasons for the delay. Attempting to search for applicants is not included in the list of job responsibilities of a notary, which causes a lot of problems. |
| Heir | The testator can transfer his property to people who are not relatives. Such an expression of will is acceptable in the absence of applicants from the first group. If the rights of spouses, children and parents are infringed, then the persons named have the right to challenge the will in court. |
Taking measures to search for applicants by a notary and compliance with the law by the heir would help avoid many controversial situations. Such issues are resolved exclusively by legal authorities. The judge's verdict directly depends on the evidence presented, the integrity of the transaction and the knowledge of the parties.
Actions of scammers and advice from experts
Fraud is the theft of property and money through deception and the use of methods prohibited by law.
Fraudsters may try to forge a will, ingratiate themselves with the testator in order to obtain property, and mislead the buyer by providing false information or withholding true information. Employees of the Ministry of Internal Affairs of Russia are engaged in searching for and punishing unscrupulous sellers. According to data provided by employees of departments for combating economic crimes, the following fraudulent schemes are most common:
| Crime scheme | Description of scammers' actions | Bottom line |
| Deliberate concealment of a testamentary refusal from the buyer | The deceased transfers the apartment by will together with the resident (legatee). He can leave only at his own request, by writing a waiver of the right of residence. By prior agreement with the legatee, the heir puts the property up for sale. No one informs clients about the conditions specified in the will. In turn, the resident does not confirm his right to live until someone buys the property. | The heir sells the apartment. The legatee waits about 1-2 years and comes to visit the new owners demanding compensation for his right of residence and payment for notary services. |
| Cancellation of a power of attorney after purchasing inherited housing | The recipient of the inheritance issues a power of attorney to a third party. The legal representative puts the property up for sale. Gullible clients are informed that the owner of the property has left for urgent business in another country. Then the parties sign the agreement. | Immediately after receiving the funds, the trustee “disappears without a trace.” The owner of the apartment revokes the power of attorney, pretending to be an innocent victim of deception. The cancellation of the document was justified by the lack of authority to carry out such transactions. |
| Concealment of other persons claiming a share of the inheritance | The seller, who inherited the apartment, hides the fact that there are other contenders for the property being sold. Housing is put up for sale 3 years after the death of the testator. Potential buyers see the title documents and understand that the statute of limitations has expired. Other applicants begin to act approximately a year after the signing of the purchase and sale agreement. | Applicants for an apartment restore the deadline for entering into inheritance, justifying the application with good reasons for being late. Then the right is confirmed by a notary. With all the documents, the scammers go to the new homeowners and demand compensation. |
| Making a will under torture | Fraudsters are looking for single people in order to later obtain their apartment. Due to deception or physical violence, the owner of the property writes a will against the attackers. | As a result, the criminals kill the heir and sell the resulting property. |
To avoid problems when buying an apartment received as an inheritance, lawyers have compiled a list of what the buyer should know:
| Moment | Description |
| Inheritance period | It is worth purchasing housing that was inherited more than 3 years ago. The statute of limitations expires, so the likelihood of identifying new applicants is reduced. |
| Contact with the property owner | Communication with the owner is necessary to avoid controversial situations, especially if the apartment is sold by an intermediary by proxy. |
| Information about persons registered in the apartment | The heir is obliged to remove everyone from registration, including himself, before putting the home up for sale. The buyer has the right to verify the absence of registered residents by requesting documents for the apartment. |
| Seller's capacity | When buying an apartment from an elderly person (over 70 years old), it is recommended to ensure its adequacy by requesting the appropriate certificates. The seller may suffer from senile dementia, which will be a reason for the transaction to be invalidated. |
| Obtaining the necessary documents | The buyer has the right to demand all papers related to the apartment. Hiding documents should be a reason to refuse the deal. |
Fraud
The most common crime in this area.
- Forgery of a will. In order to verify its authenticity, it is enough to contact a notary with such a problem.
- Another area is fake documents about certain transactions. The point is that before his death, the testator donated his apartment to a third party, who sold the apartment. Naturally, such a sale would be illegal.
- Another fraud scheme is very similar to the previous option. In this case, shortly before death, a certain young man appears who takes care of the old man. In gratitude, he draws up a general power of attorney from the notary. After the death of the old man, on the basis of a power of attorney, the apartment is sold before the expiration of six months and the distribution of the inheritance in accordance with the requirements of the law. The fraudster disappears, and the illegally purchased apartment remains with the buyer, who will actually have to deal with the consequences. The acquisition will cost him a pretty penny. Moreover, if such a transaction is canceled, the money is unlikely to be returned, since the seller will probably be quite difficult to find.
In order to avoid getting into such situations, you need not only to be very careful, but also to know what and how to do in order to ensure that you can buy an apartment normally.
Recommendations for making secure transactions
The law protects the rights of bona fide buyers. If the transaction was carried out for consideration and there is evidence that the seller has the authority to alienate the inheritance, then even in court the property will not be taken away. The court will oblige the heir to independently pay compensation to other “suddenly appearing” heirs. To acquire the status of a “bona fide buyer” you must follow the generally accepted step-by-step instructions:
- Request from the owner of the property documents confirming the legality of the transaction and the veracity of the information provided: identification card;
- title documents;
- certificates of payment for utility bills;
- house book;
- certificate from the unified state register of real estate.
- View information about previously completed transactions with housing for sale.
If the transaction is carried out through a proxy, then you need to contact the owner of the property. Then review the power of attorney to ensure its authenticity. If the heir does not want to get in touch, you should refuse the deal. It is safe to transfer money to the seller in only 2 ways:
| Transfer method | Description |
| After signing the contract | The buyer is obliged to transfer the money after the transaction is concluded. To avoid disputes in the future, it is advisable to require a receipt from the seller for receipt of a certain amount. You can reinforce your position by involving outside observers, such as neighbors. |
| Through a safe deposit box | The seller will have the right to withdraw money from the bank immediately after signing the purchase and sale agreement. The parties must discuss the terms of extradition in advance. |
Despite the measures taken, it is impossible to protect yourself 100%. The above instructions will help you obtain the status of a “bona fide buyer” and avoid many disputes, but there is always the possibility of stumbling upon a scammer. Lawyers advise drawing up documents at a notary office. A specialist will be able to suggest how best to draw up an agreement and determine the authenticity of the title documents provided by the seller. Notary services are paid. The price depends on the amount of work.
Do I need my spouse's consent?
Inherited or donated property (apartment/house) is the property of the recipient. It refers to the personal property of the spouse.
Consequently, the consent of the second spouse to complete the purchase and sale transaction of the apartment is not required.
An exception is the situation when a married couple has drawn up a prenuptial agreement or an agreement on the allocation of shares in the joint property of the spouses. The parties may voluntarily provide for any partition option. Including transferring part of the rights to inherited property.
Instructions for purchasing real estate inherited
Having studied the title documents and the specifics of inheritance by the seller, you can proceed to purchasing an apartment. The following algorithm of actions will help you avoid mistakes:
- Discuss with the seller the date, time and place of the transaction.
- Decide on the payment method and inform the apartment owner. Then invest the money in a safe deposit box or find witnesses who can confirm the transfer of the personal transfer of money.
- Appear at the notary's office to draw up and certify the agreement.
- Deposit funds towards state fees. According to the Tax Code, you will have to pay ½ percent of the price of the property. The amount should not be less than 300 rubles. and more than 20 thousand rubles.
- Pay for other services (consultation, drafting of document text) of a specialist.
- Sign the agreement.
- Go to Rosreestr along with documents for housing in order to register property rights. If you can’t stand in queues, you can contact the multifunctional center.
Arbitrage practice
Most buyers are legally illiterate, which is what scammers take advantage of. The situation is aggravated by the desire to save money and excessive gullibility. Against the backdrop of the voiced problems, property disputes arise that are resolved exclusively in court. The rights of bona fide buyers are regulated by the following provisions of law:
| Court | Resolution |
| Supreme Court | • From 04/29/10: - A bona fide buyer is a citizen who does not know that the transaction is illegal, but has taken steps to establish the competence of the seller. • From 05/29/12 under the ninth number: - An heir who did not manage to register his right to property on time will only be able to claim compensation if alienation of the inheritance has occurred. The seller, not the bona fide buyer, will have to pay the due share. |
| constitutional Court | • From 04/21/03: — The seller has no right to demand the return of property purchased in accordance with all provisions of the law. |
The decisions of legal authorities are supported by the norms of the Civil Code (302, 1155, 1105 art.). These laws protect the rights of the buyer and do not deprive heirs. The exception is cases when the contract indicates a clearly underestimated amount. The court may question the integrity of the transaction, which will lead to its termination. An example from judicial practice will help you understand the legal intricacies:
| Situation | Bottom line |
| The father left his son (A. I. Deineko) and daughter (E. I. Deineko) an apartment. Citizen Deineko A.I. did not decide to inform his sister living abroad about the death of his father. Having entered into an inheritance, the testator's son immediately put the apartment up for sale. Citizen E. A. Sinchenko bought the property at the market price. The man did not go into details, as he carefully studied the documents and made sure that no one was registered in the apartment and the seller had the authority to sell it. A year after the alienation of the inheritance, the heir's sister returned to her homeland and filed a claim to restore the deadline for entering into the inheritance and receive a share of the deceased father's property by canceling the transaction. | The judge restored the deadline for entering into inheritance and ordered the heir to pay compensation to his sister. The refusal to cancel the transaction occurred in order to protect the rights of a bona fide buyer who did not know about the presence of other applicants for the apartment. |
The purchase of housing received by the seller by inheritance occurs in the usual manner. The process differs only in the presence of risks associated with identifying other heirs or testamentary refusals. Such issues are resolved in court. If the buyer is found to be in good faith, the transaction will remain valid. The heir will be required to pay compensation. To reduce the likelihood of disputes, lawyers advise buying an apartment that was inherited at least 3 years ago, carefully checking the documents and seeking help with drawing up a sales contract from a notary.
A young child is registered in the apartment
Registration means registration at the place of residence. A parent has the right to register a child in the residential premises in which he is registered, without the consent of the owner.
Therefore, the heir may be faced with a situation where an unauthorized minor child is registered in his apartment.
Important! Registration at the place of residence is not the basis for the emergence of ownership rights. Therefore, the heir can write out both the child and his parents after state registration of rights to inheritance.
If a young child is a co-owner of real estate, then the sale of such an object is allowed only with the consent of the district guardianship department at the place of registration of the child (Article 20 of the Federal Law of April 24, 2008 No. 48-FZ). You must first provide him with a share in another apartment in return.
