Common property of heirs: current problems of theory and practice

When inheriting shared property, you need to take into account a number of nuances. They concern the rules of use, alienation and registration of property. The basic procedure is fixed in the Civil Code and provides for the possibility of receiving an inheritance by will or by law. The circle of heirs and the size of property shares are determined in accordance with the will of the deceased in the first place. And also taking into account the legal norms of the Civil Code of the Russian Federation. Accepting an inheritance is a right, not an obligation. You can refuse it if you wish. If shared ownership is accepted, its further sale is possible only if a number of rules are observed.

How are the shares of heirs determined?

If property is inherited by will, when distributing shares, they are guided by Art. 1122 of the Civil Code of the Russian Federation, which provides for the following options:

• The testator may indicate in the will the size of future shares in the property. For example, a man owns ½ of a residential building, i.e. its share is 50%. In his will, he indicates that 50% of his share after death becomes the property of his wife. And two children get 25%.
• If the size of the shares is not indicated in the will, but the heirs are indicated, the latter inherit the property in equal shares.
• If the inherited property cannot be physically divided, the heirs are entitled to payment of the value of their share. Or the owners of property received by inheritance agree with other shareholders on the rules for using this property.

If a compulsory share in the inherited property is allocated, for example, to the minor children of the testator, it cannot be less than ½ of the share that would be due to them in the absence of a will and inheritance by law.

When allocating a mandatory share, it will first be taken from property not mentioned in the will (Article 1149 of the Civil Code of the Russian Federation). If there is none, the shares will be formed at the expense of the shares of the heirs from the will, dividing the shared property among everyone. When establishing the size of shares, the judge will take into account many nuances (for example, which of the heirs used the inherited property at the time of the testator’s death and to whom this property is more vitally needed).

In the case of inheritance by law, they are guided by Art. 1141, the terms of which establish that heirs of one line inherit in equal shares. An exception would be inheritance by right of representation. For example, a man owned an apartment in equal shares with his wife. He had a son from his first marriage and a daughter from his second marriage. The man did not leave a will. Therefore, after death, his share in the apartment will be divided in equal parts (approximately 33.3%) between his wife, son and daughter.

Common property of heirs: current problems of theory and practice

O.E. BLINKOV, E.A. BUTOVA

Blinkov Oleg Evgenievich, editor-in-chief of the magazine “Inheritance Law”, Doctor of Law, Professor.

Butova Ekaterina Anatolyevna, lecturer at the Department of Civil Law, Southwestern State University.

The article updates the problems of theory and practice in the field of the emergence and termination of common property of heirs. The authors pay special attention to the problems of allocating a share in the common property of spouses to the surviving spouse and the procedure for determining the shares of heirs in the right of common shared ownership of the inheritance.

In inheritance by law, if the inherited property passes to two or more heirs, and in inheritance by will, if it is bequeathed to two or more heirs without indicating the specific property inherited by each of them, the inherited property comes from the date of opening of the inheritance into the common shared ownership of the heirs ( paragraph 1 of article 1164 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation)). If the will does not indicate the shares of the heirs and does not indicate what things or rights are intended for whom, then the property is considered bequeathed to the heirs in equal shares. The heirs become co-owners, co-creditors and co-debtors in accordance with the rights and obligations that passed to them in the order of hereditary succession <1>.

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<1> For details, see: Bryuchko T.A. Common shared property of heirs // Notary. 2007. N 3. P. 14 - 17.

However, having received property into common shared ownership, often the heirs cannot fully realize their private personal interests (Ulpian also called common property the mother of discord), therefore the legislator provided for the possibility of them concluding an agreement on the division of inherited property. At the same time, when dividing inherited property, it is necessary to take into account that the provisions of Chapter 16 of the Civil Code of the Russian Federation on common shared property are applied to the common property of the heirs, taking into account the rules of Art. 1165 - 1170 of the Civil Code of the Russian Federation on the preferential rights of certain categories of heirs.

Features of the exercise of the right of common shared ownership of heirs are as follows.

Firstly, an agreement on the division of an inheritance, which includes real estate, including an agreement on the allocation of a share of one or more heirs from the inheritance, can be concluded by the heirs after issuing them a certificate of the right to inheritance (clause 2 of Article 1165 of the Civil Code RF). Thus, it is prohibited to conclude an agreement on the division of an inheritance, which includes real estate, until the relevant heirs receive a certificate of the right to inheritance. Consequently, the heirs have the right to enter into an agreement on the division of common ownership of real estate both before and after the state registration of their rights to it. In the first case, for state registration it is necessary to provide a certificate of inheritance and an agreement on the division of the inheritance, in the second - only an agreement on the division of the inheritance. The division of movable inheritance property is possible before receiving a certificate of the right to inheritance.

Secondly, if there is a conceived but not yet born heir, the division of the inheritance can be carried out only after the birth of such an heir (Article 1166 of the Civil Code of the Russian Federation). In this case, the legislation ensures the protection of the interests of the unborn heir. An agreement on the division of inheritance concluded before the birth of the heir is voidable in accordance with Art. 168 Civil Code of the Russian Federation.

Thirdly, if there are minors, incapacitated or partially capable citizens among the heirs, the division of the inheritance is carried out in compliance with the rules of Art. 37 of the Civil Code of the Russian Federation (in order to protect the legitimate interests of the specified heirs, the guardianship and trusteeship authority must be notified about the drawing up of an agreement on the division of the inheritance and about the consideration of the case on the division of the inheritance in court).

Fourthly, the division of the inheritance must be carried out taking into account the preemptive right to an indivisible thing (Article 1168 of the Civil Code of the Russian Federation) and the preemptive right to items of ordinary home furnishings and household items (Article 1169 of the Civil Code of the Russian Federation).

The preemptive right to receive, on account of their inheritance share, the indivisible property included in the inheritance, including residential premises, the division of which in kind is impossible, have:

1) heirs who, together with the testator, had the right of common ownership of an indivisible thing, including residential premises that are not subject to division in kind, who can exercise this right preferentially over all other heirs who were not participants in the common ownership of the indivisible thing during the life of the testator , including heirs who constantly used it, and heirs who lived in residential premises that were not subject to division in kind;

2) heirs who were not participants in the common ownership of an indivisible thing during the life of the testator, but who constantly used it by the day the inheritance was opened (except for cases of unlawful use of someone else’s thing, carried out without the knowledge of the owner or against his will), who can use this right preferentially over others heirs only in the absence of heirs who, together with the testator, had the right of common ownership of an indivisible thing, and when inheriting residential premises that are not subject to division in kind, also in the absence of heirs who lived in it on the day the inheritance was opened and do not have other residential premises;

3) heirs who, by the day of opening of the inheritance, lived in a residential property being inherited, not subject to division in kind, and who do not have any other residential premises owned by right of ownership or provided under a social tenancy agreement, who can exercise this right preferentially over other heirs only in the absence of heirs who, together with the testator, had the right of common ownership of the inherited residential premises.

These persons have a preemptive right, but not an obligation, therefore they can refuse to exercise the preemptive right when dividing the inheritance to receive, on account of their inheritance share, an indivisible thing included in the inheritance, a living space, the division of which in kind is impossible. In this case, the division of the inheritance is carried out according to the general rules. According to the general rules, division is also carried out if the application for division was made after three years from the date of opening of the inheritance.

If the property to which the heir declares a preferential right is disproportionate to his share in the inheritance, the remaining heirs receive other property from the inheritance or are provided with other compensation, including the payment of an appropriate sum of money. It should be borne in mind, unless otherwise established by agreement between all the heirs, the exercise by any of them of the preemptive right is possible only after the provision of appropriate compensation to the other heirs. It should also be taken into account that when exercising the preemptive right to an indivisible thing, including residential premises, the specified compensation is provided by transferring other property or paying the corresponding sum of money with the consent of the heir who has the right to receive it (clause 4 of Article 252 of the Civil Code of the Russian Federation), then as in the exercise of the preemptive right to items of ordinary household furnishings and household items, the payment of monetary compensation does not require the consent of such an heir.

Thus, from the day the inheritance is opened, common shared ownership of the inherited property arises, which is terminated by the heirs concluding an agreement on the division of the inheritance (Article 1164 of the Civil Code of the Russian Federation). Furthermore, in accordance with Art. 1165 of the Civil Code of the Russian Federation, it is also possible for one of the participants in the right of common shared ownership to allocate their share. The legal consequences of the division of an inheritance and the allocation of an inherited share are different: the result of the division of an inheritance is the termination of common shared ownership, and when a share is allocated, the legal relations of the common shared property are terminated only for the separated heir.

Particular attention should be paid to the emergence of the right of common shared ownership of heirs to property that belonged to the spouses. As is known, in the event of the death of one of the spouses - a participant in joint property - the inheritance is opened in accordance with the general procedure. If there is a will, the persons specified in it are called upon to inherit, and if the deceased spouse did not leave a will, then his property is inherited by law. It is important to take into account that the right of inheritance belonging to the surviving spouse of the testator by virtue of a will or law does not detract from his right to part of the property acquired during the marriage with the testator and which is their joint property. The deceased spouse's share in this property is included in the inheritance and passes to the heirs (Article 1150 of the Civil Code of the Russian Federation).

Thus, we can conclude that the death of one of the spouses who had the right of common joint ownership of property acquired during marriage is the basis for the emergence of the right of common shared ownership of the share of the surviving spouse and heirs that belonged to him. It is unlawful to include a share in the common property rights of the surviving spouse in the inheritance estate. An exception to this rule may be the refusal of the surviving spouse to allocate the marital share, then the property that was the common joint property of the spouses will be fully included in the estate of the deceased. However, the legislator clearly does not provide for such a method, which gives rise to certain difficulties in practice <2>.

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<2> See: Garin I., Tavolzhanskaya A. Allocation of the marital share from the inheritance mass: right or obligation? // Russian justice. 2003. N 9. P. 25 - 27.

According to some researchers, such a refusal cannot be carried out in hereditary succession. The subject of inheritance is not a share in the right of common ownership of property, as it should be, but all property, which violates the rights and interests of the surviving spouse, since a certificate of inheritance is issued for a share in the right of ownership of property of a living subject < 3>. In addition, some scientists believe that “this can be regarded as a donation and should be formalized in the manner prescribed by Chapter 32 of the Civil Code of the Russian Federation” <4>. To certify the agreement of donation of a share in the right of common ownership, this share must be determined, and in cases established by law, the corresponding right must also be registered.

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<3> See: Zaitseva T.I., Krasheninnikov P.V. Inheritance law in notarial practice. Comments (Civil Code of the Russian Federation, Part 3, Section V), method. recommendations, samples of documents, standards. acts, courts practice: Prac. allowance. 5th ed., revised. and additional M.: Wolters Kluwer, 2007. P. 196.

<4> Kazantseva A.E. The property right of the surviving spouse and its accounting by the rules of inheritance law // Family and housing law. 2007. N 4. P. 21 - 26.

Others, on the contrary, believe that “the refusal of the surviving spouse to allocate a marital share in jointly acquired property still has the right to exist” <5>.

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<5> See: Nisht T.A. Some problems of notarization of the surviving spouse’s ownership of a share in the common property of the spouses // Notary. 2008. N 6. P. 20 - 22.

We believe that the point of view of the first group of researchers is more consistent with established notarial practice. In order for the property of the deceased spouse to pass to the heirs, it is necessary to allocate the marital share and determine the estate of the deceased spouse. The imperfection of the current legislation is manifested in the fact that it does not clearly regulate the procedure for determining the share, and therefore there is no clear opinion on this matter.

In practice, one may encounter a position according to which, after the death of one of the spouses, the common housing automatically becomes the sole property of the surviving spouse <6>. It should be noted that previously the registration of the property rights of the surviving spouse was carried out in this way, by analogy with Art. 560 of the Civil Code of the RSFSR, which was related to the inheritance of property in the collective farm yard. But according to the current legislation, there are no legal grounds for this. This contradicts Art. 1110, 1112, 1150 Civil Code of the Russian Federation. In addition, Art. 75 of the Fundamentals of the legislation of the Russian Federation on notaries provides for the obligation of a notary to issue a certificate of ownership of a share in the common property of spouses after the death of one of them to the surviving spouse. This article directly emphasizes that such a certificate can be issued to the surviving spouse for half of the common property acquired during the marriage.

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<6> See: Gros A. Inheritance of residential premises in common joint ownership // Russian justice. 2002. N 11. S. 27 - 29.

A number of scientists believe that it is necessary to conclude an agreement on determining the share between the surviving spouse and other heirs of the deceased participant in the common joint property. Based on the agreement reached, the heir is issued a certificate of right to inheritance. If the issue of shares is controversial, the share of the deceased is determined by the court upon the claim of any interested person <7>. Notaries, having received the application of the surviving spouse, notify the heirs about this, who are asked to enter into an agreement to determine the shares of the surviving and deceased spouse. Based on the agreement reached, the heir is issued a certificate of ownership of the share. If any of the heirs disagree, this issue is resolved in court.

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<7> See: Zalyubovskaya N. Common ownership of residential premises: features of inheritance // Domestic notes. 2005. N 1. S. 234 - 238.

In our opinion, such actions do not comply with the law for the following reasons. In 2002, Art. 3.1, which states that in the event of the death of one of the participants in joint ownership of a residential premises privatized before May 31, 2001, the shares of the participants in the common ownership of this residential premises are determined, including the shares of the deceased. In this case, the specified shares in the right of common ownership are recognized as equal. But this applies only to residential premises privatized before May 31, 2001.

The third part of the Civil Code of the Russian Federation, which came into force, seems to have clarified this issue. In Art. 1150 of the Civil Code of the Russian Federation states that the share of the deceased spouse is determined in accordance with Art. 256 of the Civil Code of the Russian Federation, which, in turn, refers to family law. Within the meaning of Art. 38 of the Family Code of the Russian Federation (hereinafter referred to as the RF IC), the share of spouses in common property can be determined by dividing it, which again is carried out by agreement between them or in court. But it is impossible to apply this rule to inheritance legal relations. One of the spouses has died, and the heirs, except the surviving spouse, are not participants in the common joint property, so it is impossible to conclude an agreement in this case. They also cannot go to court, which could determine the share, since the defendant in such a claim will be the deceased spouse and other heirs. There is no subject of law, therefore there is no one to file a claim against. Although in the practice of courts of general jurisdiction one can find examples where the court determines the share of the deceased spouse <8>, which, in our opinion, is contrary to the law.

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<8> See: Garin I., Tavolzhanskaya A. Allocation of the marital share from the inheritance mass: right or obligation? pp. 25 - 27.

The next point of view is that agreement of the heirs on determining the size of shares is not required if the surviving spouse is issued a certificate of the right to a share in the jointly acquired property. In accordance with Art. 75 of the Fundamentals of Legislation on Notaries, upon his application, the surviving spouse may be issued a certificate of ownership of a share in the common property of the spouses, but with mandatory notification of the heirs who accepted the inheritance.

The application of the surviving spouse with a request to issue him a certificate of ownership is drawn up in the same way as the application of both spouses wishing to determine their share in the common property. It also indicates the type of property to which the surviving spouse claims a share of ownership, and the grounds for acquiring this property. It is necessary to establish the absence of a marriage contract concluded by the spouses during their lifetime, which changed the legal regime of the property. A certificate of ownership of the surviving spouse can be issued only for 1/2 of the share in the common property of the spouses. The notary has no right to increase or decrease the size of this share <9>. But it should be noted that the heirs can appeal the actions of the notary, the size of the shares of the spouses and invalidate the issued certificate. In addition, Art. 39 of the RF IC allows for the possibility of derogating from equality of shares based on the interests of minor children or for other noteworthy reasons, in particular if one of the spouses did not receive income for unjustified reasons or spent common property to the detriment of the interests of the family. And if the rights and interests of the testator’s minor children are protected by law (in accordance with paragraph 1 of Article 1149 of the Civil Code of the Russian Federation, they have a mandatory share in the inheritance and, regardless of the contents of the will, inherit at least half of the share that was due to them when inheriting by law), then in In the second case, no one except the spouses can say with certainty that one of the spouses did not work according to their mutual desire and that in this way they determined the contribution of each of them to the family. As a result of the conflict that has arisen, the dispute between the surviving spouse and other heirs may drag on for a long time.

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<9> For details, see: Zaitseva T.I. Protection of family rights in notarial practice // Bulletin of notarial practice. 2003. N 4. P. 10 - 19.

The fundamentals of legislation on notaries provide that, upon the written application of the heirs who accepted the inheritance, and with the consent of the surviving spouse, the share of the deceased spouse in the common property can be determined in the certificate of ownership (Article 75). It is worth agreeing with the proposal of the Plenum of the Supreme Court of the Russian Federation in its Resolution No. 9 of May 29, 2012 “On judicial practice in inheritance cases”, that the property of the testator is fully included in the inheritance if the surviving spouse files an application for the absence of his share in property acquired by the deceased spouse in his own name during marriage (clause 33).

Literature

1. Bryuchko T.A. Common shared property of heirs // Notary. 2007. N 3. P. 14 - 17.

2. Garin I., Tavolzhanskaya A. Isolation of the marital share from the inheritance mass: right or obligation? // Russian justice. 2003. N 9. P. 25 - 27.

3. Gros A. Inheritance of residential premises in common joint ownership // Russian justice. 2002. N 11. S. 27 - 29.

4. Zaitseva T.I. Protection of family rights in notarial practice // Bulletin of notarial practice. 2003. N 4. P. 10 - 19.

5. Zaitseva T.I., Krasheninnikov P.V. Inheritance law in notarial practice. Comments (Civil Code of the Russian Federation, Part 3, Section V), method. recommendations, samples of documents, standards. acts, courts practice: Prac. allowance. 5th ed., revised. and additional M.: Wolters Kluwer, 2007. 800 p.

6. Zalyubovskaya N. Common ownership of residential premises: features of inheritance // Domestic notes. 2005. N 1. S. 234 - 238.

7. Kazantseva A.E. The property right of the surviving spouse and its accounting by the rules of inheritance law // Family and housing law. 2007. N 4. P. 21 - 26.

8. Nisht T.A. Some problems of notarization of the surviving spouse’s ownership of a share in the common property of the spouses // Notary. 2008. N 6. P. 20 - 22.

Source: INHERITANCE LAW magazine

Heirs of shared ownership

When identifying heirs of shared ownership, they are guided by Art. 1116 of the Civil Code of the Russian Federation.

The testator can transfer his share in the property to the following categories of heirs:

• Individuals, regardless of the degree of relationship, alive at the time of opening of the inheritance.
• Individuals conceived during the life of the testator and born alive after his death.
• Legal entities functioning at the time of the death of the testator.
• of the Russian Federation, including individual constituent entities of the Russian Federation, municipalities, and government bodies.
• Foreign states, foreign organizations and international structures.

If there is a will, a certain circle of persons has a mandatory share in the shared property, even if its representatives were not mentioned as heirs in this document:

• Children of the testator who were under 18 years of age at the time of his death.
• Adult children of the testator, if they are disabled (for example, they are disabled people of the 2nd group).
• Disabled parents of the deceased.
• Disabled dependents living with the decedent at the time of his death.

In the absence of a will, the heirs of shared property are:

• Individuals in order of priority.
• The state, including municipal authorities, government organizations.

The concept of shared ownership

When indivisible property goes to several owners at once, and its parts are not clearly distinguished, then the apartment is considered to be in shared ownership. This status is assigned to her when the inheritance is opened. This procedure is established by the Civil Code of the Russian Federation (Article 1164).

Article 244 of this federal law indicates that it is possible to establish shared ownership in an apartment. Its owners can do this by agreement or through court if agreement has not been reached.

Residential property is divided only officially - it is physically impossible to do this. A share is an allocated portion of the inheritance, expressed mathematically.

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According to Article 1152 of the Civil Code of the Russian Federation, officially accepted property passes to the heir from the day of the death of the testator, and it does not matter when it was actually accepted or the right was registered.

When the inheritance is opened, the successors have the right of common ownership. Legal separation of parts is not necessary - the property can be used jointly.

Deadlines for registering common property by inheritance

Inheritance of common shared property is carried out in compliance with the deadlines specified in Art. 1154 of the Civil Code of the Russian Federation. This means that you must declare your rights within 6 months from the date of opening of the inheritance (death of the testator).

After six months, the heirs of the shared property receive a certificate of inheritance from a notary. If the property requires state registration, a certain period of time is allocated for its implementation. For example, real estate is registered in Rosreestr within 5-14 days.

If the court is involved in the division, the deadlines are extended. On average for 3-6 months. Sometimes more significant.

In special cases, the deadlines can be shifted, but only by court decision, if the heir to shared ownership proves that he did not apply for the inheritance for objective reasons:

• I was seriously ill and did not have the opportunity to delegate the matter to a trusted person.
• I had no information about the death of the testator.
• was on a long business trip.
• I had no idea about my rights due to ignorance of Russian laws and/or the Russian language, etc.

Mandatory inheritance share

If real estate is bequeathed to one person, this does not exclude the formation of common property among several recipients. This is possible if there is a right of compulsory share. This is reflected by the Civil Code of the Russian Federation (Article 1149).

Part of the property due to a person upon inheritance by law is considered obligatory. Its size is at least 50% of the legal share that can be claimed. The following persons have this right:

• the child is disabled or under 18 years of age;
• disabled spouse or parent;
• disabled dependent.

To satisfy the right to the obligatory part, the untested part of the property is used. If it is insufficient, they turn to part of the bequeathed property. The law allows that when shares are distributed by inheritance, the rights of the remaining (legal) successors may be reduced.

The size of the mandatory part may change, and sometimes it is not awarded at all. This is possible when the legal successor under the will lived in the apartment (house), and the legal holder of the obligatory share did not use the housing.

Husband's (wife's) inheritance share

The owner of the property has the right to register an inheritance for the part that belongs to him. When real estate is acquired during a legal marriage, one half is owned by the spouse.

According to the Family Code of the Russian Federation (Article 39), spouses have equal shares of the housing they acquired during marriage. Another option is possible if this is reflected in the marriage contract.

When one of the spouses dies, his heirs are entitled only to his half of the home. The second spouse also has the right of inheritance, and he is a co-owner, which gives him an advantage when dividing the property. He can register an inheritance according to the law and, according to the order of inheritance of the share, receive the following status:

• first line of inheritance (legal order);
• heir under a will;
• applicant for a mandatory share (there must be reasons).

Necessary documents when registering shared ownership as an inheritance

If shared property is inherited by will, a number of documents will be required:

• Internal civil passport for individuals. Certificate of state registration for organizations.
• Birth certificate if the heir is a minor citizen. In this case, you will additionally need the passport of his legal representative (usually one of the parents).
• Power of attorney for the right to represent interests - for organizations. And the passport of the person representing the interests.
• Death certificate. It is received at the registry office. If the original is not available, a copy will be issued upon request.
• Title documents for inherited property.
• An extract from the house register or personal account to confirm the place of last registration of the testator.
• Certificates of ownership of inherited property.

If shared ownership is inherited by law, the list of required documents can be expanded depending on the nuances. In addition you may need:

• Documents confirming the degree of relationship with the deceased.
• Documents certifying the fact of incapacity for work, if it is intended to allocate a mandatory share in the property.
• A report on the value of property compiled by appraisers from the SRO.

When contacting a notary, applicants will also have to draw up a standard application.

Applications for accepting an inheritance and issuing a certificate of inheritance can be found here.

Applications for accepting an inheritance and issuing a certificate of the right to inheritance under a will can be found here.

Grounds for the emergence of shared ownership in inheritance

If the testator has not drawn up a will, or if the document drawn up does not indicate which heir specifically receives what and in what amounts, then the property of the deceased person comes into the common (joint) possession of all persons from a certain line of inheritance, or those listed in the will document (Article 1164 of the Civil Code).

The successors by law automatically become co-owners of the property until (unless) each of them decides to allocate their share. The latter can be done by agreement or by court order.

The testator's young children and his dependents ) have the right to receive their part of the inheritance both by law and by will (even those not mentioned in the latter) . If by his will the testator bequeaths all the property to one specific person or organization, then if the deceased has such relatives, according to the law, shared ownership of the inheritance will also arise.

Also, the unborn child . The property is divided after his birth, he is entitled to his share.

Common shared ownership appears if the object of the inheritance is an indivisible thing (Article 133 of the Civil Code), and does not arise if the testator has assigned ownership of certain and divisible things to different persons.

The procedure for registering shared ownership as an inheritance according to the law

Inheritance of common property by law is carried out in several stages:

1. After the death of the testator, the heirs receive a death certificate from the registry office.
2. Applicants for property contact a notary at the place of residence of the testator with an application for opening an inheritance, identification documents and a death certificate.
3. The notary gives applicants a list of documents that need to be prepared.
4. After 6 months, interested parties submit the necessary list of documents. After studying them, the notary determines the shares in the inheritance mass and provides the heirs with certificates of the right to inheritance.
5. If the received shared property is subject to state registration, the new owners apply to the registration authorities.

Procedure for registering shared ownership

Registration of a share of an apartment in ownership after the death of the testator is possible after the opening of the inheritance. To contact a notary, 6 months are allocated from the day he died (was recognized as such). The timing and other aspects of accepting an inheritance are considered by the Civil Code of the Russian Federation (Article 1154).

To contact a notary and register a share in the ownership of an apartment, you need to have the following documents:

• death certificate of the testator;
• will, if any;
• an extract from the testator’s last place of residence;
• title documentation;
• An extract from the register of property rights may be required.

The opportunity for heirs to receive a certificate of inheritance rights occurs when six months have passed from the date of its opening. This period is necessary to ensure that each successor has time to declare his rights. Changing the deadlines is possible if:

• the court decided to suspend the issuance of the document;
• there is a conceived but not yet born successor;
• there are no other heirs.

Reference! The document can be issued to each successor individually or one copy for all, and apply to all property or its shares. It is necessary to pay a notary fee. A fee will also need to be paid to register the certificate with Rosreestr.

The procedure for registering common property as an inheritance under a will

If there is a will, inheritance of common shared property is carried out in several stages:

1. After the death of the testator, the heirs receive a death certificate from the registry office.
2. Applicants contact the notary who drew up the will. If it is not known whether it was written, you need to contact a notary at the place of residence of the testator.
3. If the notary did not draw up a will, he will check the fact of registration of the document in the database and provide the address to potential heirs.
4. After receiving the death certificate, the notary who created the will announces the date when it will be opened. The event should take place within the next 15 days.
5. On the announced day, the heirs present their identity cards to the notary, who, in their presence, opens the envelope with the will and reads out the will of the deceased.
6. The notary informs the heirs what documents need to be prepared.
7. After 6 months, the heirs come to the notary with a package of documents and receive a certificate of right to inheritance.
8. If inherited property is subject to state registration, the new owners apply to the registration authorities.

Determining the size of shares

The size of the share depends on several factors:

• features of inheritance;
• other property transmitted by inheritance;
• status of obligatory heir;
• right of representation (inheritance in place of a deceased successor).

By default, all heirs have equal shares. This option is ideal, but not always possible.

By agreement

Housing inherited by several persons, which is considered common shared property, can be divided peacefully. It is carried out by completing a civil transaction. This option is completely legal.

The agreement allows for the division of property by the heirs into equal or unequal parts. This option is legal when each successor agrees with the decision. It is important that the interests of incapacitated or under 18 relatives be respected.

Heirs' property rights must be registered. The basis is an agreement. Its conclusion is possible even after receiving a certificate of inheritance. If information from these sources differs, then when drawing up a certificate of ownership, the fundamental document for Rosreestr employees is the agreement.

By court

If the successors were unable to come to an amicable agreement or missed the deadline for contacting a notary, then the parts of the inherited real estate must be determined in court. You need to contact the district authority at the location of the disputed housing.

In fact, the housing is not divided, therefore significant differences in the size of the shares are possible. According to the Civil Code of the Russian Federation (Article 1168), if the inheritance includes other property, then the entire apartment (house) can be received by one successor. The rest will be content with those other possessions. This option is ensured by the right of advantage, which arises if:

• the successor and testator had the right to common property, and part of it is included in the estate;
• the inherited property was constantly used by the heir;
• the successor lived in the inherited real estate, he does not own any other housing, and other heirs are not the owners of the inherited apartment (house).

The decision made by the court is registered in the Rosreestr for the region. It becomes the fundamental document and a replacement for the certificate of inheritance.

Attention! The court may rule that a previously issued certificate becomes invalid (cancelled). Then, in return, the issuance of a document is required, which will reflect the distribution of shares established by the court.

Shared ownership of an apartment or house by inheritance

The procedure for establishing and disposing of shared ownership of residential real estate is regulated by Chapter. 16 of the Civil Code of the Russian Federation.

The owners' shares in an apartment or house can be determined:

• In percentage terms. For example, a mother owns 70% of an apartment, and a daughter owns 30%.
• Isolated in kind. For example, in the form of a separate room or an extension to the house.

Isolation in nature is rare, because requires compliance with a number of conditions: separate entrance, separate bathroom. It is difficult to meet such requirements in apartments. More often, natural discharge occurs in private homes.

The allocation of shares as a percentage presupposes that co-shareholders agree on the rules for the use of common property. For example, they assign each person one room in a three-room apartment and discuss rules for cleaning common areas.

When inheriting an allocated share, the heir uses his residential premises at his own discretion and does not claim to use other shares.

When receiving a share that has not been allocated in kind, the heir must negotiate with the other owners the rules for using the housing. If this fails, you can go to court to resolve the issues that have arisen.

Registration costs and taxes

Citizens are exempt from paying personal income tax upon inheritance. Currently, they only have to spend money on state fees. Plus, certain expenses may be needed to pay for the services of an appraiser, lawyer and registration authority.

The amount of the state duty when issuing a certificate from a notary is calculated on the basis of Article 333.24 of the Tax Code of the Russian Federation:

• Close relatives (children, parents, spouses) are charged 0.3% of the value of the inherited property. The maximum fee cannot exceed 100 thousand rubles.
• For other categories, 0.6% of the total value of the inherited property is charged. The maximum duty amount does not exceed 1 million rubles.

If there are several heirs of common property, the total amount of the fee is divided between them depending on the size of the received share.

If the heir is a minor child, the state fee for him is paid by his legal representative.

For calculations, the market value of the property or cadastral value is used.

The procedure for registering common property received by inheritance

If real estate is the shared property received as an inheritance, the change of owner must be registered with Rosreestr. Without this, it will not be possible to carry out legal transactions with the property.

The procedure for registering common property after inheritance is carried out in several stages:

1. A citizen receives a certificate of inheritance from a notary.
2. The new owner pays the state fee (200 rubles are charged for registering a share in the common property in accordance with Article 333.33 of the Tax Code of the Russian Federation).
3. The heir applies to Rosreestr with an application to register ownership of a share in residential real estate and submits a passport, a notary certificate and a receipt for payment of the state duty. It’s easier to submit an application through the MFC (My Documents).
4. The verification period ranges from 7 to 14 days. After this period, a certificate of ownership of the property is issued.

NTVP "Kedr - Consultant"

LLC "NTVP "Kedr - Consultant" » Services » Legal consultations » Housing: purchase and sale, maintenance, payment » Issues of inheriting a share in an apartment, despite the fact that not all heirs accepted the inheritance

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In 1998, the applicant’s mother died, from whom she left an inheritance - a share in a two-room apartment, in which the applicant’s father (the deceased’s husband) still lives. My father pays the utility bills in full and has renovated the apartment. However, he did not accept the inheritance on time.

The applicant asks what the father should do if he decides to sell, exchange or donate the apartment in the future, how to register the right to inheritance.

Lawyer's answer.

During the consultation, the following circumstances of the case and documents were clarified. At the time of the death of the testator, the applicant’s mother and father were registered in the apartment; at the time of the mother’s death, the apartment was in shared ownership, with the father and mother having ½ shares each, which is confirmed by relevant documents. The applicant has a brother who also lives in Izhevsk; there are no other first-degree heirs. The marriage of the applicant's parents was registered in 1957 and was not dissolved.

Description of legal qualifications

In accordance with paragraph 1.2 of Art. 1141 of the Civil Code of the Russian Federation, heirs by law are called upon to inherit in the order of priority provided for in Articles 1142-1145 and 1148 of this Code.

According to paragraph 1 of Art. 1142 of the Civil Code of the Russian Federation, the heirs of the first priority according to the law are the children, spouse and parents of the testator.

Heirs of the same line inherit in equal shares, with the exception of heirs inheriting by right of representation (Article 1146).

In accordance with Art. 1150 of the Civil Code of the Russian Federation, the right of inheritance belonging to the surviving spouse of the testator by virtue of a will or law does not detract from his right to part of the property acquired during the marriage with the testator and which is their joint property. The share of the deceased spouse in this property, determined in accordance with Article 256 of this Code, is included in the inheritance and passes to the heirs in accordance with the rules established by this Code.

In accordance with clause 1, 3-4 art. 1152 of the Civil Code of the Russian Federation, in order to acquire an inheritance, the heir must accept it.

Acceptance of an inheritance by one or more heirs does not mean acceptance of the inheritance by the remaining heirs.

An accepted inheritance is recognized as belonging to the heir from the date of opening of the inheritance, regardless of the time of its actual acceptance, as well as regardless of the moment of state registration of the heir's right to the inherited property, when such a right is subject to state registration.

The heir can accept the inheritance in one of the following two ways:

— submit to the notary at the place of opening of the inheritance an application for the issuance of a certificate of the right to inheritance (clause 1 of Article 1153 of the Civil Code of the Russian Federation);

- take actions indicating the actual acceptance of the inheritance (clause 2 of Article 1153 of the Civil Code of the Russian Federation).

In accordance with paragraph 2 of Art. 1153 of the Civil Code of the Russian Federation, it is recognized, until otherwise proven, that the heir accepted the inheritance if he performed actions indicating the actual acceptance of the inheritance, in particular if the heir:

- took possession or management of inherited property;

- took measures to preserve the inherited property, protect it from encroachments or claims of third parties;

- made at his own expense expenses for the maintenance of the inherited property;

- paid the testator’s debts at his own expense or received funds due to the testator from third parties.

The applicant's father, who lived together with the deceased and continues to live at the same address after the death of his wife, will be recognized as having accepted the inheritance in the second way . He bears the costs of maintaining the apartment and has been paying current utility bills at his own expense all this time. Made the necessary repairs in the apartment. The applicant herself and her brother did not actually take possession of the property, and also did not submit an application to the notary to accept the inheritance within the period specified by law.

Actions are considered actual acceptance of the inheritance if they indicate that the heir has expressed a desire to accept the inheritance. The applicant's father, registered jointly with the deceased, is considered to have actually accepted the inheritance. There is no need to prove this fact in court.

However, documentary evidence of the actual acceptance of the inheritance can be provided by certificates from various authorities: receipts for payment of credit debt, agreements with individuals and legal entities on leasing premises, carrying out repairs or installing an alarm system in an apartment or house. The heir can provide other documents that confirm the actual acceptance of the inheritance. At the same time, the documents provided as evidence must indicate that the actions for the actual acceptance of the inheritance were completed within the period allotted by law for accepting the inheritance (6 months from the date of death of the testator).

According to paragraph 1 of Art. 1155 of the Civil Code of the Russian Federation, upon the application of an heir who missed the deadline established for accepting the inheritance (Article 1154), the court may restore this deadline and recognize the heir as accepting the inheritance if the heir did not know and should not have known about the opening of the inheritance or missed this deadline for other valid reasons and provided that the heir who missed the deadline established for accepting the inheritance went to court within six months after the reasons for missing this deadline ceased.

It should also be noted that the inheritance can be accepted by the heir after the expiration of the period established for its acceptance, without going to court, subject to the written consent of all other heirs who accepted the inheritance (clause 2 of Article 1155 of the Civil Code of the Russian Federation).

In addition, in accordance with paragraphs 34, 35 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of May 29, 2012 No. 9 “On judicial practice in inheritance cases,” the heir who accepted the inheritance, regardless of the time and method of its acceptance, is considered the owner of the inherited property, bearer of property rights and obligations from the date of opening of the inheritance, regardless of the fact of state registration of rights to inherited property and its moment (if such registration is provided for by law).

Acceptance by an heir by law of any untested property from the inheritance or part thereof (apartment, car, shares, household items, etc.), and by an heir by will - of any property bequeathed to him (or part thereof) means acceptance everything due to the heir on the appropriate basis of the inheritance, whatever it consists of and wherever it is located, including that which will be discovered after acceptance of the inheritance.

The decision and its reasoning

In this situation, the heir (the applicant's father) used the living quarters, household furnishings and other things that belonged to the testator. After the opening of the inheritance, such an heir continues to own and use the specified property, which has acquired the properties of hereditary and intended for succession by this and other heirs. If such behavior of the heir is due to a new legal orientation aimed at appropriating the inherited property, it has all the necessary signs of accepting the inheritance.

The testator's children missed the deadline for accepting the inheritance and do not claim the inheritance, but can be included in the list of heirs and the deceased's share will be redistributed between them at the will of the surviving spouse. To do this, you need the joint presence of the spouse and children at the notary with passports and the necessary documents.

In accordance with clauses 117, 118 of the Order of the Ministry of Justice of Russia dated 04/16/2014 N 78 “On approval of the Rules of notarial office work” (together with the “Rules of notarial office work”, approved by the decision of the Board of the FNP of 12/17/2012, by order of the Ministry of Justice of Russia of 04/16/2014 N 78) (Registered with the Ministry of Justice of Russia on April 23, 2014 N 32095) the basis for starting inheritance proceedings is the receipt by the notary of the first document indicating the opening of an inheritance (application for acceptance of an inheritance, issuance of a certificate of the right to inheritance, renunciation of an inheritance, on taking measures to protect inherited property, on managing inherited property, on issuing a resolution on the payment of funds for a decent funeral of the testator, on issuing a certificate of ownership of the surviving spouse for a share in the common property of the spouses, on consent to be the executor of the will, on issuing a certificate, certifying the powers of the executor of the will, etc.)

Documents related to the inheritance matter can be presented to the notary, either in person or by mail.

The applicant was explained that the husband of the deceased must contact a notary (in accordance with the area of ​​residence and the first letter of the surname of the deceased) with a death certificate (original and copy) and a certificate of the last place of residence of the deceased from the house management, and fill out an application. The time limit for applying for a certificate of inheritance is not limited by law.

In the future, the inheritance case will be formalized and it will be necessary to submit other documents to the notary:

- documents evidencing a family relationship that classifies you as a first-degree heir (marriage certificate, birth certificates of children).

— title documents for the apartment (in this case, an ownership agreement and a passport for the apartment);

— certificates from the Bureau of Technical Inventory regarding the valuation of the apartment on the day of the testator’s death; about the owners of the apartment; about the absence of arrests;

- an extract from the house register for the apartment in which the testator lived;

— obtain a copy of the financial personal account for the apartment in which the testator lived from the management company;

— cadastral passport;

- applicant’s passport.

Elena Andreevna Simakova, lawyer at Kama Management Company LLC,

Consultation given in November 2014.

Sale of a house or apartment in shared ownership by inheritance

A share in residential real estate can be sold by the owner, but only in compliance with the legal norms set out in Art. 250 Civil Code of the Russian Federation.

The procedure is carried out in several stages:

1. The owner of the share notifies other shareholders in writing of his intention to sell his part of the inherited real estate and offers to buy it back.
2. The owners are given 1 month to make a decision.
3. If the owners of other shares did not notify of the decision or refused to redeem the share in the real estate, its owner puts his property up for auction and alienates it through a purchase and sale transaction.

In such transactions, it is important to take into account that you can sell your share to third parties at a price no lower than that which was offered to other shareholders. If it turns out that the share was sold cheaper than what other owners were offered to buy, such a transaction can be easily challenged in court.

Refusal of share in inheritance

The heir is not obliged to accept the inheritance if he believes that it is unprofitable for him. For example, due to the debts of the testator. In this case, he has the right to refuse his share of the common property (Article 1157 of the Civil Code of the Russian Federation).

Refusal of inheritance can be carried out in three ways:

• By submitting an application to a notary who has an open case. A citizen may refuse in favor of a specific heir from any queue or without declaring one.
• By failing to submit an application for acceptance after the opening of the inheritance. In this case, his share of the property will be distributed among the other heirs in equal shares.
• With the help of the court, if the decision to refuse was made by the heir after receiving a certificate of the right to inheritance.

You can only renounce your entire share of the inheritance. You cannot write a refusal on part of the inherited property and accept the rest.

Determination of shares of heirs

The co-owner of the property has the right to demand his part of the inheritance, which he can use in his own way, or carry out joint management on an equal basis with others (Articles 246, 252 of the Civil Code). Initially, the shares of the owners are assumed to be equal (Article 245 of the Civil Code), unless otherwise specified in the law, appointed by the court or determined by agreement between the heirs.

According to the law, all recipients of the inheritance (including unborn children and dependents of the eighth stage) can automatically count on an equal share on a par with other applicants (Articles 245, 1141, 1142-1148 of the Civil Code).

According to a will that does not stipulate shared distribution, property is divided between specified persons in equal parts (Article 1122 of the Civil Code). If for some reason the testator did not indicate in the document young children or disabled dependents who are close relatives, they still have the right to a mandatory share in the amount of at least 1/2 of what they are entitled to by law (Article 1149 of the Civil Code).

The distribution of shares can be carried out by agreement (Articles 252, 1165 of the Civil Code) and actually differ from what is required by law. The agreement should not infringe on the interests of minors and disabled persons (Articles 37, 1166, 1167 of the Civil Code).

There may be an increase in shares of the common property specified in the agreement if one of the owners effectively invested in development and improvement (Article 245 of the Civil Code).

Some of the heirs will have an advantage in acquiring the right to an indivisible thing, which can be claimed within three years after the opening of the will (Articles 1167, 1168 of the Civil Code).

Nuances

The procedure for obtaining an inheritance of shared property has many features that may not arise during the process. Or significantly complicate the life of the heirs.

• 1st nuance : The notary is not obliged to notify applicants about the opening of an inheritance. He can do this if he is conducting an inheritance case and the testator has informed him in advance of the coordinates of the future heir.
• 2nd nuance : If the heir accepts the inheritance, he automatically becomes liable for the debts of the testator. It is impossible to accept the hereditary mass selectively.