Pravozhil.com > Real estate registration > Re-registration of an apartment after the death of the owner, taking into account the nuances
Real estate subject to inheritance after the death of its owner sometimes becomes the cause of disputes between loved ones
How an apartment is re-registered after the death of the owner is a pressing question, because inheritance often becomes a stumbling block between the closest relatives. Especially when it comes to housing.
Finding themselves in a difficult moral state after the death of a loved one, the heirs must understand the legal nuances when registering an inheritance.
Let's consider a situation where the testator did not leave a will. The reasons for this may vary.
And then the re-registration of the apartment after the death of the owner occurs according to the law.
Re-registration of an apartment after the death of the owner without a will
If there was no will in principle, the apartment is inherited “in order of priority.”
If, according to the will, it is transferred to a non-relative, then even a close relative living in the premises will not be able to transfer it to himself. Some cases are considered in court.
The non-willed property of a deceased citizen, along with other valuables, is transferred to close relatives. This procedure is called inheritance by law.
The process of rules for the transfer of inherited property is regulated by the Civil Code, where chapters 61-65 define the procedure for inheritance rules and powers.
Chapter 63 stipulates the conditions of inheritance by law.
Preference goes to close relatives:
- parents and children;
- spouses;
- grandchildren inherit by right of representation.
Of these, additional benefits are obtained:
- in shares by right of joint ownership;
- living with the deceased and registered in the apartment.
After the death of the owner, a group of applicants from among the persons of the first priority approaches the notary with supporting documentation. The notary opens the inheritance. From the moment of opening, you need to wait 6 months, when it is permissible to present claims from interested parties (see Obligatory share in the inheritance).
After six months, the notary draws up an inheritance estate for the total number of heirs.
The legal norms are explained to them and they are offered, by mutual agreement, to distribute the inheritance into equal shares.
The apartment is often left to the spouse, since it is considered jointly acquired property. Then the remaining participants in the first stage receive other property or money of the deceased. But here, too, the issue of joint ownership is taken into account.
The heir who received the apartment receives a certificate of inheritance, with which he goes to Rosreestr to receive a “Certificate of Ownership”. If relatives are unable to resolve the issue by agreement of the parties, they go to court.
A citizen who has received premises by a court decision goes to Rosreestr with an extract from the court decision and registers ownership.
If there are no heirs in the first line, claims arise from persons who inherit by law in the second or further stages.
If there is a will
If the owner of the property has drawn up a will in advance, then in the event of death, all rights are transferred to the person specified in it. It can be any relative or stranger. But the successor under the will does not always receive the entire share of the inheritance.
There is a certain category of people to whom the law obliges them to give away a certain part of their property. This group includes:
- children under 14 years of age;
- children of the testator who have not reached the age of majority;
- adult incapacitated children of the owner;
- the incapacitated spouse of the testator;
- incompetent parents of the deceased.
Representatives of this group of people are entitled to half of the portion of the property that would have belonged to them without a will (the so-called obligatory share).
Re-registration of an apartment to a close relative
Without a legal procedure that mediates the transfer of rights to a close relative, re-registration of housing is not advisable. For this purpose, specific property transactions, such as donations, are provided.
If the apartment has been owned for more than 3 years, it is permissible to draw up a purchase and sale agreement. If the property was owned for less than the specified period, the owner will have to pay personal income tax (see Sale of an apartment owned for less than three years).
The deed of gift is drawn up in a notary's office. Usually - according to a standard sample, on a form with protective watermarks. When confirming a close relationship, persons are exempt from the tax deduction, which for others is 13% of the value of the property (see Payment of tax upon receipt of an inheritance and registration of a deed of gift).
In addition, relatives are provided with a discount on the services of drawing up a standard contract.
Confirmation is on a documentary basis. The moment when the parties are related is negotiated with a notary before drawing up a deed of gift (see How to draw up a deed of gift for an apartment).
A gift agreement is a one-sided transaction, but both parties must be present when it is drawn up. The donor writes a statement on the basis of which documentation for the transaction is drawn up. By signing both copies of the deed of gift, the parties transfer the object in the prescribed manner.
It is permissible to draw up papers for the transfer of an object in a legal consultation or real estate company. The parties can carry out the procedure independently, drawing up copies in free form, but taking into account the rules of drafting and legally correct language that does not allow interpretation.
Having received a package of documentation from the donor, the new owner registers the apartment in Rosreestr, based on the drawn up deed of gift.
Other citizens prefer to draw up a bill of sale. For the most part, it is of a purely formal nature, becoming an integral part of the process of re-registration of living space for children (other close relatives). The state does not restrict such transactions for relatives, but cancels the property return due to the buyer of real estate in their direction.
If relatives transferred the property through a deed of sale, this agreement will become the basis for obtaining a “Certificate of Ownership”.
Drawing up a property transaction agreement is required to form a legal basis. If the transfer of the object is carried out by re-registration at the request of the owner, a precedent will arise of the absence of a title document.
This allows for legal consequences in the form of difficulties in further property transactions with the object. It is likely that you will have to go to court to reinforce the legal grounds.
What to do after receiving a certificate of inheritance
After the official entry into inheritance, the successor is recommended to immediately register. This is also important for those who plan to sell the acquired property in the near future.
If the owner actually owned the property for more than 3 years, but went through registration procedures recently, then after the sale he will have to pay income tax .
The registration procedure does not involve serious time or financial costs. The main thing that is required from the heir is care and legally correctly collected documentation.
Useful materials: How to enter into an inheritance according to the law of the Civil Code of the Russian Federation after death: deadlines, entry procedure, state duty, tax in 2021
Re-registration of an apartment for a wife
The following property transactions are allowed in relation to spouses:
- deed of gift;
- purchase and sale;
- will.
Based on the drawing up of a will or agreements, property will pass from one spouse to the other.
Additionally, there is an expedient option for transferring property between married citizens - a marriage contract.
When drawing it up, it is permissible to make other adjustments to family life.
In this case, the husband or wife transferring ownership of the property chooses the following options:
- Transfer the property from the moment the contract is signed.
- Make arrangements in the event of divorce or death of the owner of the property in favor of the spouse.
If there is a marriage contract, the provisions of the Civil Law in relation to the persons who drew up such an agreement are canceled. The contract limits the claim to living space even to children.
If it is available, no one other than the spouse has the right to claim to move into the premises without the consent of the owner.
Mortgage - let's sort it out slowly
Taking out a mortgage loan requires a long repayment period, which is an advantage for potential borrowers.
After all, you will have to part with not such a large amount of money every month. What will the family budget not suffer from?
But with such a long-term period, there is a possibility of unfavorable circumstances and, as one option, the death of the borrower.
In the latter case, co-borrowers and the banking organization itself will face difficulties.
If there is an issued insurance policy that provides for insured events such as disability or death, the bank has an obligation.
He closes the credit line and undertakes not to make any claims. If the deceased does not acquire heirs, then the property becomes the property of the state.
Or existing heirs register it in their name. It must be remembered that death caused by certain chronic diseases is not a valid reason for obtaining payments from insurers.
If the apartment is under mortgage and its owner, i.e. the borrower has died, then problems will arise for both the bank that provided the loan and the co-borrowers.
Documents for re-registration of an apartment
Participation in a property transaction involves the provision of several types of documentation:
- Passports of the parties and documentation confirming relationship. These are birth certificates and marriage certificates, if the surname of the participant in the transaction changed during marriage (otherwise).
- Notarized permission from the spouse or other co-owners (if any).
- Title documentation for the premises. These are purchase and sale agreements, a warrant, a certificate of inheritance, a marriage contract, an extract from a court decision (and others), establishing the right of a person to participate in a property transaction with a given object.
- Documentation certifying the type of right to the object. This is the “Certificate of Ownership”.
- Cadastral and technical documentation - cadastral passport, certificate of inventory and technical plan of the apartment from the BTI.
- Documentation from the housing department - certificates of absence of rent arrears, extract from the apartment register.
- Certificates of absence of encumbrances and pledges on the alienated object.
As you can see, the legal support of the transaction does not provide for the cancellation of the provision of the required papers or a reduction in their volume, even in the case of the sale of real estate to a close relative.
Re-registration of an apartment with a mortgage
An unpaid mortgage loan does not become an obstacle to prohibiting a property transaction. Including to a close relative. The main thing here is the agreement with the bank.
If only the right to an apartment is alienated, and the balance of the debt remains with the payer, the contract must be re-signed with the bank employees. In any case, the owner's ownership will come into force only after the loan obligations have been repaid.
If the property is re-registered together with an outstanding loan, the right to the apartment is transferred, with the transfer of the encumbrance to the new owner. The mortgage is reissued according to an algorithm established by investors.
The procedure will require an application to the bank, providing detailed information about the participant in the transaction.
The deal will take place subject to the bank's approval of the buyer. He is interested in the only criterion - solvency. After receiving the bank's consent to the transaction, the object can be transferred in a way chosen at the discretion of the parties.
If the borrower pays off debt obligations ahead of schedule, the property is transferred without encumbrances, without obtaining permission from investors (see Sale of an apartment with a mortgage).
The importance of apartment privatization for heirs
The significance of privatization lies in the fact that after its implementation, the apartment from the order of the state passes into the possession of the person who rented the apartment. The privatization procedure must be completed, otherwise the owner's right of ownership will not be recognized, and his heirs will not be able to inherit the apartment.
The privatization procedure ends at the moment when an agreement on privatization is concluded between the employer and the authorized state body. Only after this the employer is recognized as the full owner.
If the procedure was started, but the person did not have time to complete it and died, then the issue of further registration of the apartment for privatization is decided in court. Also, the successors of a deceased person who lived with him in this apartment can carry out privatization for themselves if they are officially registered there.
Without privatization, apartments continue to remain the property of the state or municipal body. So neither the notary nor the court will formalize the right of inheritance for such an apartment.
Features and nuances
Beyond the scope of these actions is the transfer to a close relative of social non-privatized housing, which is used on the basis of a social rental agreement concluded with the administration of the locality. Such housing is transferred only with the permission of the head of administration.
The owner needs to go to the local executive committee and write an application with a request to re-register social rent in the name of a relative. The application indicates the passport details and degree of relationship of the citizen claiming to be the copyright holder.
The decision is made by the administrative commission. After its acceptance, the applicant is notified that an extract from the decision is ready, which is prepared within 3 days. Here they will issue a permit with which citizens need to go to the administration to conclude a new rental agreement and terminate the old one. The procedure is subject to inclusion in cadastral records.
It is most advisable to use an additional agreement to the main social tenancy agreement when drawing up an assignment agreement.
It consists in the assignment of the rights of one person in favor of another, who, thus, acquires a legal basis for the disposal of housing. Sometimes regional municipalities prefer these types of transfer of rights.
If a deed of gift is drawn up in favor of a minor child or a person under the age of 18, the following types of re-registration are permissible:
- The deed of gift is drawn up in favor of the incompetent owner with a deferment until the age of majority. A person under the age of 18 (14) is represented by his legal representatives.
- A will allows for the execution of a testamentary refusal when a person who does not have the right to dispose of the housing remains in the apartment transferred to the heir. In his favor, guarantees are provided for the use of the premises throughout his life. Such settlement is considered to be a burden on the owner.
When transferring an object, in this case it is necessary to preserve the rights of the person living on the basis of a testamentary refusal. If the transfer is made to a close relative, the terms of the testamentary refusal may be transferred along with the real estate.
When children under 18 years of age are registered in the re-registered territory and will remain in the living space after the transfer of rights, it is advisable to obtain a certificate from the department of guardianship and trusteeship authorities stating that their constitutional interests have not been violated.
In this case, it is permissible to do without their discharge.
