Inheritance of real estate by law and by will, the procedure for registering real estate as property by inheritance

After the death of citizens, property remains: movable and immovable. And if the personal belongings of the deceased are almost of little value, real estate attracts many heirs. Indeed, who doesn’t want to become the owner of a separate apartment or inherit a plot of land?

The law defines a strict procedure for inheriting real estate. The property cannot be received by strangers - according to the law, it is distributed among close relatives, but there are exceptions in the form of a will. Let's look at how to inherit real estate correctly, where to go, what to prepare and how much will it cost? The information in our article will be useful not only to heirs, but also to property owners.

Inheritance of real estate by law

The most common situation is the inheritance of real estate by law. In this case, potential owners become immediate relatives (children, parents, spouse) or distant ones, if there are no relatives. In the most extreme case, the property becomes escheated and transferred to government agencies.

Order of succession

In total, there are 7 lines of inheritance (Articles 1142-1145 of the Civil Code of the Russian Federation), to which you can add an eighth line - the state. First of all, real estate is received by:

Parents of the deceased.
Children.
Spouse.

The inheritance is divided between them in equal parts, with the exception of the situation with the wife/husband, who receives 50% of the jointly acquired property. Heirs of subsequent queues do not receive anything as long as at least one heir of the previous queue is alive.

Example : A house purchased during marriage was registered in the name of the deceased spouse Ivan. 50% of it automatically goes to his wife Maria. The remaining part is divided into equal shares between all heirs: spouse, son and two parents (4 parts). Maria receives 50%+12.5%=62.5% of the house. The child receives 12.5% and each parent receives 12.5%. If Ivan had no one but Maria, she would have received everything, even if there were brothers, sisters or other heirs of subsequent turns.

The second line of inheritance includes:

Brothers/sisters.
Grandfathers/grandmothers.

The third line includes aunt and uncle. In practice, inheritance of subsequent lines of relatives is extremely rare. These include:

Great-grandparents.
Children of nieces and nephews, brothers/sisters of grandparents.
Children of cousins, grandchildren, grandparents, sisters and brothers,
Stepmother, stepfather, stepdaughter, stepson.

Unworthy heirs

Real estate (like any other inherited property) cannot be received by heirs recognized as unworthy (Article 1117 of the Civil Code of the Russian Federation). Only a court can declare someone unworthy if they provide compelling evidence. As a rule, such persons include those who do not fulfill their duties towards the testator, as well as those who committed deliberate illegal actions in order to obtain property in their ownership.

Example : The testator Ivan has a house. It was to go to the son and daughter in equal parts. The son, in order to take possession of all the property and not give his sister anything, commits illegal actions (for example, forges a will). The sister finds evidence of his fraud and files a lawsuit. As a result, her brother is deprived of all rights to the property and the house is transferred in full to his sister.

Inheritance of real estate by will

Unlike inheritance by law, the situation with wills can be more complicated due to the fact that the property is not transferred to relatives or not only to them. The testator can leave everything to only one of the children or even to a third party. He can also bequeath only part of the property (for example, 10% of a house), and divide the rest according to the law. In addition, there may be multiple wills. They will work simultaneously, provided they do not contradict each other.

Example : The deceased Ivan has a house and a dacha. He made a will for the house, in which he indicated his son as the heir, ignoring his adult daughter. However, not a word is said about the dacha in this document. As a result, the house goes to the son entirely, and the dacha is divided into equal shares between the son and daughter.

Closed will

There is such a thing as a closed will. In this case, only the testator himself knows what is written in the document. Even the notary who certifies this document has no idea what it is about, what property appears in the will, and what shares it is divided into. The sealed envelope is opened only after the death of the testator in the presence of all persons previously indicated to the notary.

When drawing up closed wills, testators often make many mistakes. They can be used in court to invalidate a document. The notary cannot help in this case, since he is not familiar with the contents. Before drawing up a document, it is recommended to consult with specialists.

Will without a notary

In some cases, it is possible to draw up a will without a notary. As a rule, this happens in cases where the testator may simply not live to visit the notary (serious illness, combat, life-threatening situation) or when getting to the notary in the near future will be problematic (long-term expedition far from civilization, sea voyage ). In all of the above cases, leaders can certify a will: the chief physician, the captain of the ship, the head of the expedition, the commander of a military unit. Moreover, if there is no one nearby who has the right to certify such a document, witnesses can do this, but in the latter case, immediately after the situation normalizes, provided that the testator has survived, it is necessary to confirm the document with a notary.

When certifying these types of wills, the presence of a witness is required. He puts his signature on the document.

The procedure for registering real estate as property by inheritance

The process of registering real estate by inheritance is not particularly complicated, but everything needs to be done correctly and one by one.

Procedure

Prepare a report on the valuation of inherited real estate.
Prepare and submit documents to a notary to open a case and obtain a certificate. Pay the state fee.
Obtain a certificate from a notary.
Prepare documents for re-registration of real estate in your name in Rosreestr.
Submit an application and documentation to Rosreestr, pay the state fee.
Obtain a new certificate of title.

Since 2006, the inheritance tax has been abolished. Now you only need to pay the state fee. However, in most cases, when selling real estate inherited, taxes still need to be paid. See below for more details.

Property valuation

When submitting documents, the notary is required to additionally provide a report on the valuation of real estate received by inheritance. This document can only be drawn up by licensed appraisal companies.

How to make an application

Each heir is required to provide the notary with a prepared application for entry into inheritance to obtain a certificate of inheritance. It should contain the following elements:

The name of the notary office to which you apply to open an inheritance case.
Heir details.
Title of the document.
Information about the death of the testator/testator.
Confirmation of the fact of inheritance from the heir.
Date and signature.

Statements under the law and under a will are practically no different from each other. The text of the application indicates the basis on which the heir enters into the inheritance. In one case it will be the phrase “by law”, in the other “based on a will”.

Required documents

To open an inheritance case, the notary is provided with the following package of documents:

Documents confirming the relationship with the deceased (marriage or birth certificate).
Will (if any).
Death certificate of the testator/testator.
Heir's passport.
Certificate from the last place of residence of the deceased (issued at the Housing Office). It is required in order to confirm the territorial connection of the opening of an inheritance case to this particular notary.

If inheritance occurs under a will, it must first be certified by the notary who initially accepted it. He must put a note on the will that no changes have been made to the text.

After receiving a certificate from a notary, to Rosreestr, in order to re-register ownership of real estate, you must provide the following documents:

Certificate of state registration, purchase-sale or donation agreement.
Extract from the BTI, registration certificate.
Cadastral passport (if you have one).
Certificate from a notary.
Documents confirming the identity of the new owner.
Power of attorney and documents of the representative (if work is carried out through him).

Additionally, certificates of no debt for utilities, family composition, or permission for redevelopment (if any) may be required.

Expenses

If there is a closed will, the first thing you will have to pay for is opening the envelope. Such a service costs 300 rubles according to subparagraph 14, paragraph 1 of Art. 333.24 Tax Code of the Russian Federation. The following costs are used to pay for the services of the appraisal company. On average, determining the value of real estate will cost 2-3 thousand rubles, depending on the region of residence, the type of property, and the presence or absence of access to it.

When submitting an application, the notary will have to pay a state fee (subclause 1, clause 1 of Article 333.24 of the Tax Code of the Russian Federation) in the amount of 0.3% (but not more than 100 thousand) of the estimated value of the property (for close relatives of the first or second line of inheritance) or 0. 6%, but not more than 1 million rubles for all others.

If there are several heirs, each of them pays the state duty separately, depending on the share of property received by law or by will.

Further costs relate to the procedure for re-registration of real estate ownership. As of 2021, it costs 2,000 rubles.

Example : After the death of the testator, real estate worth 3 million rubles was left (valuation was made by a licensed company on the date of death of the testator). The will states that this property is divided into 2 equal shares between the testator's brother and sister. First, they will together pay 3 thousand for the appraisal, and if the will was closed, then also for opening the envelope. Further, when submitting an application, each of them is required to pay a state fee in the amount of 0.3% of their share. In this case, from 1.5 million rubles. In total, everyone pays 4.5 thousand rubles. After receiving a certificate from a notary, they re-register ownership, paying an additional 2 thousand rubles for two. The total costs for both heirs will be 300+3000+4500+4500+2000=14,300 rubles. The expenses of each of the heirs are 14300/2=7150 rubles.

Deadlines

The first thing you need to wait for is the assessment report. In rare cases, it is about 7 days. More often it takes 2-3 days, and sometimes 1 day. Now you need to submit the documents to the notary. The law allows exactly six months for this from the date of death of the testator/testator. The countdown begins from the day following the date indicated on the death certificate or the entry into force of a court decision declaring a person dead.

The six-month period ends on the same date the report began, exactly 6 months later. Please note that if there is no such date in the end month, the last day of the previous month is considered. And if the end date falls on a holiday or weekend, it is moved to the next business day.

Example : Ivan died on September 28. Six months begin to count from September 29. The end date falls on February 29, but this is not a leap year and there is no such date in February. The transfer is being made to February 28th. Let's assume that the 28th is Sunday. As a result, the date is again shifted to the next working day - March 1.

In exceptional cases, when there is only one heir and no others are expected, even theoretically, the notary can issue a certificate earlier than six months.

Registration of real estate in Rosreestr is carried out within 5-12 working days from the date of submission of all the required documents and payment of the state fee.

Which notary should I submit the application and documents to?

Article 1153 of the Civil Code of the Russian Federation states that an inheritance case is opened by a notary at the place of residence of the deceased. There is no strict territorial division. Any notary working within the locality in which the deceased lived will do.

If it is not possible to submit an application and document in person, they can be sent by letter or transmitted with the help of a representative. In the latter case, the power of attorney must contain clauses allowing such actions.

What can you do with real estate?

After registration of property rights, a person becomes the full owner of the testator's property. Now you can make any transactions with real estate that are not prohibited by law.

How can you dispose of inherited property:

sell (purchase agreement);
rent out (agreement for renting a residential premises or renting a land plot);
donate (donation agreement for any person);
bequeath to heirs;
exchange (exchange agreement);
pledge (an agreement with a bank to pledge an apartment).

If there are several co-owners (heirs), alienation of property occurs only with their consent. If one of the owners is against the sale of property, the remaining co-owners can offer him to buy out their parts, and vice versa - the pre-emptive right to purchase (Article 250 of the Civil Code of the Russian Federation). Such actions are carried out in writing. The offer must contain the value of the share of the property and the terms of sale.

The owner is given 30 days to make a decision on the redemption of shares . If the bidder fails to act, the co-owners can sell their parts to third parties. If a written refusal was received earlier, then the co-owners can draw up a purchase and sale agreement without waiting for the expiration of the month. Such transactions require notarization.

Is the sale of real estate subject to tax? If the heir registered ownership less than three years ago, then he must pay personal income tax. If the property is owned for more than three years, then the tax is not withheld (Article 217.1 of the Tax Code of the Russian Federation).

Read more about this in the article “Tax on the sale of an apartment received by inheritance.”

Inheritance of real estate occurs in accordance with the general procedure. Applicants need to contact a notary, submit an application, and pay a state fee. Registration of rights occurs after receipt of the certificate. The basis for succession is relationship with the testator or the terms of the will. Possible problems are the lack of documents for the property, missed deadlines, or a dispute between the heirs. Such issues are resolved in court. In order not to violate the procedure, collect all the documents and competent evidence - contact the lawyers of our portal for help. Having received a preliminary consultation, you will be able to assess your strengths, outline an action plan and a list of tasks. Lawyers will help you understand your case from a professional point of view. Leave a request in the online form or call the hotline!

Mandatory share in real estate

Minor children and disabled relatives have the right to a mandatory share in the inheritance. This also applies to real estate. Moreover, even if there is a will, such persons cannot be deprived of their entire share. Maximum – reduce by 50%. And if the will does not include a disabled or minor person who is obliged to receive his part of the inheritance, this is a reason to invalidate the document.

Marriage contract

According to the law, spouses receive 50% of jointly acquired property. However, if a prenuptial agreement has been concluded, it takes precedence over the law. In such a situation, inheritance occurs in the manner specified in the contract.

Example : When Ivan and Marina got married, they entered into a prenuptial agreement, according to which the jointly acquired property belongs 100% to Marina. After Ivan’s death, only his property that existed before the marriage is inherited. Everything else is Marina’s property anyway.

Methods of inheriting real estate

The property passes into the hands of the heirs only after the death of the owner.

Acceptance of inheritance occurs in two ways:

by law (without a will);
by will.

Both options for accepting an inheritance have both pros and cons. A testamentary disposition allows the testator to partially control the situation. For example, if a relative has acted unlawfully towards family members (property) or suffers from alcohol/drug addiction, he can be disinherited. Everything related to accepting an inheritance by law is a little more complicated. Let's consider both ways of entering into inheritance rights.

We recommend that you familiarize yourself with how “Inheritance by law and by will” is carried out.

Sale of inherited real estate

If you need to sell property received as an inheritance, you will have to pay a tax of 13% of the transaction value. Exceptions are made only for close relatives. To avoid paying tax, you must own real estate for at least 5 years. Only after this can you sell it without additional costs.

When inheriting real estate, there are many factors that a non-specialist cannot notice and take into account. We recommend that you first speak with experienced lawyers at our free consultation. If necessary, we are ready to take on all the problems with registration and preparation of documentation.

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Lawyer's answers to private questions

Can a parent bequeath property to one child if there are several of them?

The owner of property can dispose of it at his own discretion, including bequeathing it to any recipient. But he cannot disinherit a child if he is under 18 years old, has a disability, or has reached retirement age.

My younger sister abuses alcohol. During her lifetime, her mother treated her several times. Before her death, my mother drew up a will and established a testamentary disclaimer: I will receive the apartment only if my sister lives in it for life. Can I receive an inheritance and not fulfill the condition?

As a first-priority heir, you may not accept the inheritance under the will. All the same, you and your sister will receive your mother’s apartment for ½ share. If you register an inheritance according to the law, then you are not obliged to fulfill the mother’s condition.

My father lived in a municipal apartment. He wanted to privatize the apartment, but did not have time to collect the documents. He died 2 months ago. Can I inherit an apartment if he lived alone and the contract was also signed in his name?

No. Only family members who lived with the deceased can obtain rights to a municipal apartment.

My mother had a dacha, an apartment and a house. All property was inherited from her parents. She died 4 months ago. How will the property be divided if there is no will, but the application for inheritance was written by 3 children and a husband?

Each heir has the right to a ¼ share in the dacha, apartment and house. But in this way it will be difficult to use the property. Therefore, it is better for the heirs to agree on another division option. For example, one heir gets a house, the second gets a dacha, the third gets an apartment, and the fourth gets monetary compensation.

My husband died a month ago. We bought an apartment during our marriage. We have 2 daughters together from our marriage. But the husband also has a son from his partner. He officially recognized him and paid alimony. How will the apartment be divided if there is no will?

An apartment purchased during marriage is joint property. Therefore, you need to contact a notary to allocate ½ part as a marital share. The husband's 1/2 share will be included in the inheritance property. You, the daughters and son of the deceased will each receive a 1/8 share in the apartment as an inheritance. Since 1/8 share is an insignificant share, you can go to court to replace the share in the apartment with monetary compensation.