What to do if the deadline for renunciation of inheritance has been missed

When such a situation arises in life, when the time has come to enter into inheritance rights, each person has the right to decide for himself whether he wants to accept the inheritance or wants to refuse it. But before you make this or that decision, you need to know a few important rules.

Firstly, such a decision must be made before the moment when it is necessary to draw up documents for the inheritance.
Secondly, you can refuse or accept an inheritance only in full, and not in parts.
Thirdly, if a person refuses an inheritance, then he will no longer be able to change his decision.

Refusal to accept inheritance

Before making a decision, a person first weighs all the nuances that speak for and against accepting the inheritance. Such nuances may be personal relationships with the testator or with other heirs, or the presence of debts, which, as is known, are also inherited. The decision made by the heir is called a unilateral transaction.

In order to accept an inheritance, as well as in order to refuse it, the law provides for a certain period, and it is equal to six months.

This period begins to count from the moment of death of the person whose property is inherited, regardless of the presence of a will, or from the moment the person is declared dead by a court decision.

You can write a refusal to inherit property both before entering into inheritance and after. For this purpose, a special application is drawn up, which must be notarized. In addition, you must confirm your signature. Such a statement must indicate the details of the person refusing the inheritance and the details of the person whose property he refuses to accept. If the refusal occurs in favor of specific persons or one person, then their details are indicated. There is no need to indicate the motivation for such actions.

A correctly drawn up application for renunciation of inheritance is submitted to the responsible notary, who draws it up and registers it in a special journal. From the moment the application is registered, the refusal comes into force.

There are situations when the heir does not refuse the inheritance, but does not assume the rights of the heir. If the deadline for renunciation of inheritance is missed, the refusal is issued automatically. But there is one significant difference between a formalized and unformed refusal of inheritance. It is no longer possible to challenge a registered refusal of inheritance, but if the refusal is issued automatically, you can file an application in court and challenge your rights at any time.

Peculiarities

Refusal to inherit does not depend on the will of other persons and can occur regardless of their wishes. It lies in the reluctance of the heirs to enter into ownership rights in relation to the property of the testator.

Refusal of inheritance has the following distinctive features:

it is drawn up in the form of a statement , which is submitted to the notary;
it must be drawn up within the period established for accepting the inheritance;
an application for refusal of inheritance can be submitted even after the heir has begun to use the property;
refusal cannot imply special conditions: for example, the transfer to the heir of other property, instead of which he refused;
in some cases, it is necessary to obtain permission from the guardianship authorities to issue a refusal.

Finally, the waiver is irrevocable and does not have retroactive effect.

Refusal of inheritance can have two variations:

Indicating the circle of persons who will receive the property of the refusenik.
Without specifying the citizens to whom the inheritance will go.

After signing the disclaimer, the heir loses his rights to the property, he is released from debt obligations (if any were inherited), and the property is distributed among other heirs.

According to paragraph 3 of Art. 1157 of the Civil Code of the Russian Federation, refusal of inheritance has no retroactive effect and cannot be subsequently revoked. Therefore, it is worth carefully weighing all the consequences of such a decision in advance.

Also, the heir will not be able to participate in the redistribution of inherited property in the future.

Refusal of inheritance after its acceptance

So, you can refuse an inheritance before the inheritance is accepted, and after consent has been given to accept the inheritance, but for some reason the heir has changed his mind. However, there are several conditions that must be met:

An application for refusal to enter into inheritance rights must be properly formalized.
The registration procedure must be followed.
The deadline for drawing up an application for refusal of inheritance is not extended, and the heir must have time to complete everything within six months. For example, if an inheritance case was opened, and an application for the right to enter into an inheritance was submitted three months later, then there is only three months left to think about whether to refuse the inheritance or not. These deadlines must be met.

Refusal of inheritance in case of its actual acceptance

The actual acceptance of the inheritance is considered to be the fulfillment of the obligations of the heir, even if he did not submit an application for inheritance. These actions include:

Maintaining the safety of inherited property;
Availability of expenses associated with the maintenance of inherited property;
Payment of debts of a person whose property is inherited.

Refusal of such inheritance is carried out according to slightly different rules, and they are worth dwelling on separately.

In this case, the period is set the same as in other cases, the same, six months. However, in this case, it is possible to restore the deadline that was missed so that a refusal can be issued.
It is necessary to submit an application to the court, which will indicate sufficiently valid reasons that did not allow the heir to complete the entire necessary procedure earlier. Moreover, it will be necessary to prove in court that, due to the above reasons, the heir really did not have such an opportunity.
The heir himself or people who are interested in this can challenge the acceptance of the inheritance.

Consequences of refusing an inheritance

Entry into inheritance rights is carried out within six months and is confirmed by a special document.

If the heir has written a statement renouncing the inheritance and registered it with a notary, then it is impossible to reverse the matter. After refusing to inherit property, the heir has no right to any part of the inheritance. The waiver only applies to the entire property.

To resolve your issue and receive free legal advice, contact inheritance lawyer Igor Vitalievich Goloveshkin by phone +7 (495) 241-12-69 and all your questions will be resolved as quickly as possible.

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1. Acceptance of an inheritance is a right, not an obligation of the heir. In this regard, the heir by law or by will, within a six-month period for accepting the inheritance, has the right to refuse the inheritance in favor of other persons from among the heirs by law or by will, or may refuse the inheritance without indicating the persons in whose favor he refuses the inheritance.

A general rule has been established according to which, when inheriting escheated property, refusal of inheritance is not allowed. However, it should be borne in mind that the state can refuse inheritance under a will if it is named as an heir in the will.

It is necessary to distinguish between refusal of a claim when considering a controversial inheritance case and refusal of inheritance. So, after A.’s death, the property left as hereditary property was a house located in the Moscow region, copyright and bank deposits. A dispute arose between the heirs regarding the division of home ownership. Moreover, several heirs constantly lived in the disputed household and considered it their property, while others lived in Moscow. The heirs who lived in Moscow filed a claim for ownership of the home, but subsequently abandoned the claim, declaring that they did not claim the inheritance, and the home was divided among the remaining heirs. Soon all the heirs turned to the notary's office with a request to issue them a certificate of the right to inheritance in the form of bank deposits and copyright. The notary issued such a certificate to them, since there was no formal refusal of the inheritance.

Being a unilateral transaction, refusal of inheritance can be declared invalid on the general grounds for recognizing a transaction as invalid. The most common are claims to invalidate a refusal of inheritance due to the fact that it was committed:

1) a person who is not capable of realizing the meaning of his actions or managing them at the time of refusal of inheritance;

2) under the influence of delusion;

3) under the influence of deception, violence, threat, malicious agreement between representatives of the parties or a combination of difficult circumstances;

4) due to the fact that the refusal was of a feigned nature (the refusal was used to cover up a transaction for the purchase and sale of inherited property).

So, for example, a refusal of an inheritance can be made in favor of a person whom the person refusing considered the heir. However, as a result, it turned out that he was not one. Such a refusal may be invalidated as made under the influence of a mistake (mistake of fact). If an error was made in the composition of the inheritance, the amount of debts encumbering the inheritance, then such an error cannot serve as a basis for invalidating the refusal.

In practice, there was a case when one of the heirs forced the other to renounce his part of the inheritance, threatening otherwise to divulge the latter’s family secret.

2. Paragraph 2 of the commented article establishes a general rule according to which the heir has the right to refuse the inheritance within the period established for accepting the inheritance, including in the case when he has already accepted the inheritance by all means permitted by law. Moreover, even if the heir has already accepted the inheritance, having actually taken possession or management of the inherited property, the court may, upon the application of this heir, recognize him as having renounced the inheritance even after the expiration of the established period, if it finds the reasons for his omission to be valid.

In this case, it is necessary to take into account that an heir who disposes of part of the inherited property in connection with the actual taking into possession of it, and then refuses the inheritance, thereby puts the testator's creditors at a disadvantage and limits the possibility of satisfying their claims. He himself, having refused the inheritance, is removed from the number of heirs who are liable for the debts of the testator. In addition, refusal of an inheritance after its acceptance by performing actual actions can cause all kinds of abuses (for example, appropriation of the most valuable things), which will cause damage to other heirs who later came into actual possession of the inherited property or who submitted an application to a notary office (notary) about accepting an inheritance.

The solution to this problem is of particular importance in cases where the heir lives together with the testator and, by virtue of this fact, automatically enters into the inheritance. Thus, such an heir would not have the opportunity to refuse the inheritance at all.

According to paragraph 43 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”, after the expiration of what is specified in paragraph. 1 item 2 art. 1157 of the Civil Code of the Russian Federation, only the heir who has committed actions indicating the actual acceptance of the inheritance can be recognized as having renounced the inheritance, provided that the court recognizes valid reasons for missing the deadline for renunciation of the inheritance.

3. Refusal of inheritance is unconditional, and in accordance with paragraph 3 of the commented article, renunciation of inheritance cannot subsequently be changed or taken back. Thus, having submitted an application to the notary to refuse to accept the inheritance, the heir subsequently has no right to claim the inheritance. And, conversely, refusal of inheritance is not allowed if the heir has submitted an application to the notary to accept the inheritance or to issue a certificate of the right to inheritance.

It is also not allowed to replace one application for renunciation of inheritance with another. It is believed that the heir can exercise his subjective right to refuse only once. Only a court can recognize such a refusal as invalid on the grounds provided for by law.

Sometimes the question arises as to whether it is possible for the heir to change the refusal he made within a six-month period in order to supplement the unconditional refusal of the inheritance with an indication in whose favor it was made, or to replace the previously appointed heir with another. However, paragraph 3 of the commented article clearly states that a previously made refusal cannot subsequently be changed.

One should take into account the explanation of the Plenum of the RF Armed Forces dated May 29, 2012 No. 9 “On judicial practice in inheritance cases”, in accordance with paragraph 46 of which:

a) an heir who has the right to an obligatory share in the inheritance, when exercising it, cannot refuse to inherit according to the law the untested part of the property (clause 2 of Article 1149 of the Civil Code);

b) an heir called to inherit on any grounds, having accepted it, has the right to refuse the inheritance (or not to accept the inheritance) due to him as a result of the refusal of the inheritance in his favor by another heir;

c) an heir who accepts an inheritance by law does not have the right to refuse the inheritance that passes to him upon the unconditional refusal of the inheritance of another heir;

d) if an heir by law refuses a directed refusal in his favor to another heir, this share passes to all heirs by law called to inherit (including the heir who refused the directed refusal), in proportion to their inheritance shares.

4. Refusal of inheritance is a unilateral transaction and, accordingly, can only be made by a legally capable person. Persons with limited legal capacity and partial legal capacity may renounce inheritance only with the consent of their trustees. As for completely incapacitated citizens, only their guardians can refuse an inheritance for them with the consent of the guardianship and trusteeship authorities.

In accordance with Art. 21 of the Federal Law of April 24, 2008 N 48-FZ “On guardianship and trusteeship”, the guardian without the prior permission of the guardianship and trusteeship authority does not have the right to carry out, and the trustee does not have the right to give consent to, transactions for the rental of the ward’s property for rent, lease, gratuitous use or as collateral, alienation of the ward’s property (including exchange or gift), execution of transactions entailing the renunciation of the rights belonging to the ward, division of his property or allocation of shares from it, and the execution of any other transactions entailing reduction in the value of the ward's property. Since the refusal of the ward's inheritance is a unilateral transaction entailing termination of the right of inheritance, it requires coordination with the guardianship and trusteeship authorities.

What happens if you don’t have time to register within six months?

In this situation, if the waiver certificate has not been issued, the basic rule enshrined in the Civil Code allows the notary to transfer the rights to a share in the inheritance to the remaining beneficiaries. At the same time, if a citizen did not intend to renounce his part, but for some reason did not meet the period allotted by law, such a decision would be an infringement of his right.

If there is confirmed information, a citizen can defend his rights through the courts.

He needs to show that he really did not know or did not receive information about the inheritance opened, including in his name, or that he did not have a real opportunity to take part in the division of the inheritance in a timely manner. Circumstances thus confirmed before the court will oblige the notary and other heirs to review the property shares.

This, for example, applies to real estate, even if it has already been registered as the property of another beneficiary. But there may also be the opposite situation, which arises if the inherited property is burdened with any “toxic” circumstances. Let's not forget that inheritance is not only a legal-forming procedure.

It also imposes duties on those receiving it to take good care of and care for the property. It is fully transmitted. That is, it is impossible to partially obtain inheritance rights while renouncing the obligations associated with a thing or real estate, regardless of whether the housing was privatized or non-privatized.

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How to refuse a will in favor of other persons or a relative after death

When writing a refusal in favor of another heir, it is worth considering several important rules:

It is not allowed to be written on the obligatory share in the inheritance by law (if the heir wants to renounce the obligatory share in the inheritance, he can do this only without indicating a specific list of persons).
It is not allowed to specify in the application for refusal the conditions for signing the refusal: for example, a requirement to provide other property in place of the one that was refused.
It is not allowed to formalize a waiver of the obligatory share and property that was not taken into account in the will (according to Article 1158 of the Civil Code of the Russian Federation).

If the inheritance is distributed according to a will, then the refusal can only be issued in favor of another person specified in the will. According to paragraph 1 of Art. 1158 of the Civil Code, the heir does not have the right to refuse the inheritance in favor of any person chosen by him arbitrarily.

But if from among the persons included in the circle of heirs he was unable to select an applicant, then he can write a refusal without indicating the person to whom his share will go. In this case, when distributing property that belonged to the refusenik, the rules specified in Art. 1161 of the Civil Code of the Russian Federation.

When inheriting according to testamentary principles, the share of the refusenik is distributed among the persons specified in the will. Moreover, the size of their shares and the procedure for dividing property can be established in the “last will” of the testator.

If the testator was not sure that his heir would live to see the acceptance of the inheritance and receive it, then he could register a spare person (“sub-heir”) in the will. In this case, all abandoned property is transferred to the sub-heir.

The heir, who was the only person named in the will, does not have the right to refuse in favor of a certain person.

How to protect an inheritance from foreclosure

The only way to protect your inheritance after bankruptcy is to wait until the procedure is completed. You have 6 months to accept the inheritance. This period is counted from the date of opening of the inheritance (as a rule, it coincides with the day of death of the testator).

Additionally, you need to take into account that it will be possible to enter into an inheritance after bankruptcy if several conditions are met:

None of the participants in the proceedings know that you receive an inheritance during the bankruptcy process: neither the financial manager, nor the creditors . The fact is that collectors are interested in obtaining satisfaction of debts, and the manager receives a remuneration, the amount of which depends on the property sold by him;
There is no property in the estate that needs to be registered . Such property includes real estate (apartment, private house, land) or vehicles and much more. The fact of registration assumes that the manager or creditors will know about the receipt of the property;
You will not go to court to restore missed deadlines for entering into an inheritance . If you did not manage to accept the property being inherited within 6 months, then you can try to reach an agreement with other heirs, but do not go to court.

Exclusively for residents of St. Petersburg and the Leningrad region of St. Petersburg and Leningrad Region

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Is it necessary to inherit?

All controversial issues of inheritance cases will be resolved in the Russian Federation on the basis of three fundamental, codified acts:

Civil Code, in the part devoted to inheritance rights;
Tax Code. Its provisions, in our situation, regulate the financial side - the tax burden, issues of valuation and duties;
of the Civil Procedure Code, in the event that the case of an open inheritance goes to the judicial stage.

Since inheritance, whether by law or through a will, is a civil law transaction of a unilateral nature, the Civil Code speaks of the right of the person acting as a successor to receive the inheritance of property or a share in it, as may be stated in the document of the testator.

If doubts arise regarding succession, namely whether it is possible not to enter into an inheritance, the legislation emphasizes that a citizen has no obligation to assume this status.

Despite the notification nature of the procedure and the absence of a legislative need to certify in writing one’s intention to renounce property, in many cases the inaction of a potential heir can then be interpreted not in his favor - whether it is his intention to enter into or renounce the inheritance.

It is necessary to dwell on several exceptions established by law, in which a person recognized as an heir does not have the right to refuse property, namely:

in the case when the inheritance is divided by law and the recipient is entitled to a mandatory share;
if the specified heir under the will is the only one;
when a person has a child/children under 18 years of age;
the guardianship authority or person acts on behalf of the minor heir.

In these cases, when opening a case on the inheritance mass, the notary body is obliged to notify, and the heir to accept, his/her share of the inheritance.

If these circumstances are not present in the case, then after the notary registers the fact of the death of the testator, describes the inherited estate and does everything possible to notify all relatives and other heirs, one or more beneficiaries who have received information about this may refuse to enter into inheritance in accordance with the established procedure.

This can be done both, of course, and with the transfer of one’s inheritance share in favor of other persons.

At the same time, the law prohibits transferring the share to a person who is not an heir. The official waiver procedure also takes place through a notary. After the notification is received, a citizen who does not want to become a successor must arrive or submit his written application to the relevant notary body that opened the inheritance case.

However, if the estate is not encumbered, then it is possible to issue a refusal even after the expiration of the deadline - this is not as critical as in cases where a citizen wants to receive his share, but missed the deadline.

In these situations, the notary may well assist the requester, and he will have to go to court to argue the right to extend the notice period. For example, if he had justifiable serious circumstances that prevented him from filing the application on time.

The law sets aside a 6-month period for official refusal of succession, from the moment of death of the testator.

When refusal is not allowed

The legislator limits the rights of certain categories of citizens.

You cannot refuse property in favor of other applicants:

to heirs under a will, if all property is assigned to a specific person;
citizens who are entitled to a mandatory portion;
persons who are designated by the testator as additional heirs. For example, in the event of the death of the main applicant or loss of property rights.

There is also no provision for a waiver with reservations or conditions. If after the death of a person no claimants to the property have been identified, then it is considered escheat and goes to the state. The state's refusal of inheritance is also not provided for.

Refusal of a minor heir

To refuse an inheritance, you must have full legal capacity. By law, it begins at the age of 18.

The interests of minor citizens are represented by their parents or guardians. To participate in transactions related to the abandonment of the inherited property of minor citizens, guardianship authorities are involved (Article 1157 of the Civil Code of the Russian Federation).

Legal representatives need to prepare:

Declaration of waiver on behalf of the parent/guardian. A similar document is drawn up by a child if he is over 14 years old.
Passport of the legal representative and the child, if he has reached the age of 14.
Death certificate.
Certificate of the last place of registration of the deceased person.
Papers confirming the child's rights to inheritance.
Documents about the existence of a family relationship with the deceased person.

Important! The child's legal representatives must justify the reason for the refusal. It is advisable to provide additional papers (mortgage agreement, promissory note).

If there are legal grounds for refusal, the guardianship authority makes an appropriate decision. After which the legal representatives must contact a notary for further paperwork.

If the decision of the guardianship authorities is negative, then the parents/guardians will have to accept the inheritance in the interests of the minor child.

Is it possible and how to refuse an inheritance before death during the life of the testator?

Cancellation is permitted only after the death of an individual. Moreover, it does not matter what exactly underlies the right of inheritance - a will or a law.

During life, the will has no legal force. For example, if there is a will, the owner of the property can safely sell it. Therefore, you can refuse the inheritance after the will has become valid.

As for refusing an inheritance, if there is no will, the same principle applies here. The testator's relatives (husband/wife, children/parents) cannot claim the property until his death.

What happens if an individual inherits an apartment?

If a citizen who admits his financial insolvency receives real estate as an inheritance, then further developments will depend only on whether he already owns an apartment. Let's consider both situations to understand all the features.

Option 1. The bankrupt receives an inheritance, but does not have his own home.

In this case, the apartment or house being inherited remains with the debtor. Real estate automatically falls “under protection” in accordance with Art. 446 of the Code of Civil Procedure of the Russian Federation, which states that the only housing cannot be sold.

If the bankrupt did not have housing, then upon receiving an inheritance it becomes the property of the citizen and then it will be impossible to collect it: creditors will not be able to claim an apartment, a private house with a land plot or a share in them.

Option 2. The debtor owns an apartment and receives an inheritance.

In this case, you cannot count on receiving real estate transferred by inheritance. An individual already has housing “protected” under Art. 446 Code of Civil Procedure of the Russian Federation. Don't forget that there can only be one.

As a result, the real estate that was inherited is valued and sold at auction. The proceeds are used for settlements with creditors in order of priority. If there are free funds left after repaying the debts, they are transferred to the bankrupt.

The essence of partial refusal

The law provides only for the possibility of complete renunciation of all property of the testator.

You cannot refuse a car that is being inherited, but you cannot inherit an apartment. It is also not allowed to refuse to inherit the debt obligations of the deceased simultaneously with the registration of his property by inheritance.

For example, the testator left behind a car and a loan in the amount of 100 thousand rubles. In order to inherit the car, the heirs must assume the obligations on the loan.

At the same time, paragraph 3 of Art. 1158 of the Civil Code provides for one exception, which allows for the possibility of partial refusal of inheritance. These are cases when the heir receives an inheritance simultaneously for several reasons.

For example, by will and by law, by way of hereditary transmission and as a result of the opening of an inheritance. In this case, he has the right to refuse the inheritance on one of the specified grounds or simultaneously on all of them. For example, you can refuse a house that is legally due to you as a first-priority heir and accept an apartment according to the will.

This situation occurs quite often if not all of the testator’s property is specified in the will.

For example, a father left an apartment and a car to his son in his will. He also had a small deposit in the bank in the amount of 300 thousand rubles. and a loan was issued for 450 thousand rubles. They were not indicated in the will, but according to the law, they must go to the son as the heir of the first priority. It is more profitable for the son to formalize the refusal of inheritance according to the law, since the debts exceeded the amount of the contribution.

Refusal of part of the inheritance is carried out on a general basis. To do this, an application is written addressed to the notary, indicating the basis for the inheritance, which the person refuses. Here you can also indicate a specific person to whom his share will be transferred.

Consequences

The main consequence is the loss of the right to inheritance. The abandoned property is divided in equal parts among the remaining applicants.

But, if the refusal was targeted, then the property goes to a specific person. Let's consider several life situations.

Example. Upon the death of the testator, the inheritance was opened. Its composition is a house in a village. The claimants to the inheritance are a spouse and two children. Each was entitled to 1/3 of the property. However, the eldest son lived separately from his mother. The young man abandoned the property by default. The widow and youngest son claimed their rights. The property was divided equally between them. The heirs each received ½ of the house.

As you can see, the inaction of the heir led to an even redistribution of shares between the remaining contenders.

Example. After the death of the copyright holder, the inheritance opened. The object of inheritance was a house in the village. The claimants to the property are a wife and two sons. Each was entitled to 1/3 of the housing. The eldest son decided to renounce the inheritance in favor of his mother. He lived in another city, so he sent the application by mail. The testator's wife and youngest son asserted their rights. The identified property was divided among the heirs. The widow got 2/3 of the house, the son - 1/3.

A targeted refusal of inheritance leads to an increase in the share of a specific legal successor under the law/will.

If there is an order, the consequences of refusal may be different. For example, if a sub-heir is specified in the order, then the property goes to him.

If a loan was issued to the testator, then the obligations under it pass to the legal successors.

Creditors have the right to make claims against the heirs within three years.