How to bequeath an apartment and draw up a will correctly

What is a will

A will is a written document:

• drawn up by the testator in case of death;
• determining the composition of the heirs;
• establishing a list of property that is subject to inheritance;
• determining the shares of recipients (at the request of the owner).

Important! A will is a one-sided transaction. The consent of other persons when drawing up the document is not required.

The order is not valid during the life of the testator. He can repeatedly change or cancel the administrative document. However, after the death of a citizen, the will is not subject to adjustments.

It can only be declared invalid by a court decision. For example, if a document violates the rights of other persons or is drawn up by an incapacitated citizen.

After the death of the testator, the order regulates property relations between the heirs. The object of regulation is the property of a deceased person.

Advantages and disadvantages

The most important main advantage of a will is the ability to transfer property to a minor child, bypassing other applicants.
There are other “bonuses”:

1. Notary services for drawing up a will will cost less than a deed of gift or inheritance agreement.
2. The child will not have to pay a state fee when entering into an inheritance - he is exempt from it (Article 333.38 of the Tax Code of the Russian Federation).
3. A child will be able to independently manage property only after reaching adulthood. Until this time, all real estate transactions are carried out through guardianship. The chances that the apartment will be sold and the money from the sale will simply be wasted are extremely low.
4. If you have debts, the bank will not take the property from a minor child. At least until you turn 18.

be careful

The legal representative of the child will still contact a notary to draw up documents for the inheritance. If he misses the deadline for entering into an inheritance, restoring it will be problematic, and your son or daughter may be left without property.

There are other disadvantages:

1. Someone may try to challenge the will. For example, people who are entitled to a mandatory share in the inheritance. But it is very difficult to cancel it even through the courts.
2. A child may fall under the influence of dishonest relatives, and after 18 years of age, transfer property to them. It is better to immediately explain to him that the apartment or house is not worth selling. Even if you have several properties, he can live in one, and rent out the rest under a rental agreement.
3. Having a will does not guarantee that the person with whom the child is left will act honestly. Legally, the property will belong to your daughter or son, but the legal representative will actually manage it: for example, rent it out to tenants. And there are no guarantees that the rent money will be spent on the child, although by law it can only be spent on him.

In addition, ownership of the property passes to the heir only six months after the death of the testator. Until this time, no real estate transactions can be carried out at all. The child will be able to live in the apartment, but selling it, if a large sum is urgently needed, will only be possible after a certificate of inheritance.

How to bequeath an apartment and draw up a will correctly

What documents are needed to register a will with a notary?

Where can I register a will for an apartment?

To draw up a will, the testator needs to contact any notary in the Russian Federation . In Russia, wills are subject to notarization.

The notary is obliged:

• establish the identity of the testator;
• check his capacity;
• clarify rights/responsibilities;
• provide assistance in drawing up administrative documents.

Important! Also, the duties of a notary include the calculation and withholding of state fees for performing a notarial act.

If such a possibility is absent, then it will be necessary to proceed from the life circumstances in which the person finds himself. If the testator finds himself in an emergency situation, the law allows him to draw up an ordinary written document. The order is signed by the testator. Witnesses must also sign it.

Expert opinion

Stanislav Evseev

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

The term implies the presence of a real threat to the life of a citizen - a criminal attack, a natural disaster, a catastrophe. However, such a document must be notarized within a month, for example, if the person did not die. Otherwise, the order will lose its significance.

If a citizen dies from emergency circumstances after the document is executed, the heirs may receive a share under the will solely by a court decision. To do this, legal successors must apply to the court to declare the situation an emergency. The claim must be filed within 6 months after the death of the testator.

Example. Citizen L. visited his summer cottage in winter. Sometimes he lived for weeks in a country house. Family members knew about this and were not worried. He was attacked by unidentified citizens and beaten. The neighbors drove the criminals away. However, the ambulance could not get to the site. Therefore, citizen L. wrote a will. The neighbors assured him. A few hours later he died. The son had to go to court to recognize the situation of issuing the order as an emergency. The claim was granted.

What to do if a person cannot contact a notary? The legislator has provided for a number of situations when a will can be certified by other persons.

List of persons who have the right to certify an order

The order is signed in the presence of the above persons. Later, the document is sent to the testator’s registered address or to a notary.

Should the mandatory share be taken into account?

This is allowed, but not considered mandatory. If this is not done, the obligatory heirs will still receive their due share of the inheritance, even if it is part of the apartment. But if you foresee the situation, in order to avoid disputes between successors, indicate them in the will. But if over time more people appear who fall under this category, they will be called to inherit after the opening of the inheritance case.

List of compulsory heirs

Such applicants fall into three main categories:

1. Minor children . Previously, legitimate children were taken into account. Now even an illegitimate child has the right to apply for an apartment. The same applies to adopted persons.
2. Disabled parents . The reason is poor health, documented, or advanced age.
3. Dependents . These are disabled people who are dependent and provide financial support to the testator during his last year of life. Living in an apartment is not necessary.

Any person from the group of these persons will receive their share, even if the inheritance is an apartment that is indivisible in kind. You just need to declare your rights by writing a statement to a notary.

How is the inheritance share divided taking into account this category of persons?

The sequence of property distribution is as follows:

1. From the amount allocated without a will, a mandatory share is allocated.
2. If it is not enough, the deficiency is compensated by part of the apartment provided by the will.
3. The remainder of the bequest is transferred to the designated successors.
4. Property not specified in the will is distributed in equal parts among the first-priority heirs from among the relatives.

In any case, persons in need of social protection from among the beneficiaries of inheritance will receive their due share.

Is it possible to register a will in the MFC (“My Documents”)?

No. The multifunctional center is not authorized by the legislator to certify such documents . The Civil Code does not provide for the possibility of mediation when registering an inheritance. A person must visit a notary or contact another authorized person.

However, when registering ownership of an apartment, a citizen must submit documents to Rosreestr. Only after proper registration is he granted ownership of the object.

One of the options for submitting an application is to contact the MFC. However, only real estate can be registered through the center. Other types of property (car, securities) are subject to registration with the relevant organizations (traffic police, joint stock company).

Is it possible to make a will at home?

Yes. The law does not prohibit calling a notary to your home . Especially if a person is sick and finds it difficult to move independently.

Identification and verification of his legal capacity takes place at the place of residence. All necessary data is entered into the register of inheritance cases (Order of the Ministry of Justice dated April 16, 2014 No. 78).

The only difference is the cost of notary services. The amount increases by 1.5 times the base rate (Article 333.25 of the Tax Code of the Russian Federation).

Registration fee

By law, the execution of a will provides for only one item of expense - payment of a fee for the implementation of notary services. Citizens making a testamentary disposition in a financial institution or expressing their last will under life-threatening circumstances are not affected by this obligation.

And for certification of inheritance transactions of open or closed form, the compiler will have to pay the amount established by clause 13 of Art. 333.24. Tax Code of the Russian Federation, in the amount of 100 rubles.

How to write a will for an apartment correctly

When drawing up an administrative document, you need to take into account the legal requirements:

1. Will form . The document is drawn up exclusively in writing. Oral transactions regarding inheritance are considered invalid.
2. Notarization of a document . Moreover, 1 sample remains with the notary, and 2 is given to the testator.
3. Purposefulness and clarity of the will of the testator . When reading the document, it should be clear that the citizen is transferring property to beneficiaries in the event of his death.

The administrative document must contain:

• place, date of compilation;
• Title of the document;
• citizen registration address;
• passport details (series, number, date of issue);
• information about the testator;
• the essence of the order;
• list of property to be signed off (location);
• list of applicants (full name, registration addresses);
• designation of the shares of property that are due to the heirs;
• document number (for notary forms);
• link to familiarize yourself with the text of the document;
• proof of payment of state duty;
• signature of the testator, transcript of his surname.

The contents of the will depend on the preferences of the testator, the volume of the inheritance, and the number of claimants to the property.

Procedure for registering a will for an apartment

To register a will, the testator can contact any notary office. By that time, the beneficiary should already be determined.

While the notary is preparing the papers, you will need to pay a state fee. After which the notary will read the text of the document to the testator. The completed will is signed, and the second copy is given to the citizen.

Algorithm of actions of the testator:

1. Determine the list of property and composition of heirs.
2. Contact a notary office.
3. Provide the text of the document or use a notary’s sample as a basis.
4. Pay the state fee.
5. Study the text of the will.
6. Sign and pick up the administrative document.
7. Transfer the order to a potential heir.

The last point is at the discretion of the testator. However, if the heir does not find out about the existence of a will, then he may never assume his rights if the testator suddenly dies. Therefore, you need to at least inform the person about its presence.

Example. Citizen N. issued an order for his nephew. However, he did not provide the young man with information about the document. After the death of the testator, his children found a declaration of will in his documents. To avoid being disinherited, they decided to keep silent and threw him out. The nephew did not find out about the existence of a will and was unable to inherit.

What is the price

Costs for registering a will in 2021:

1. Registration. For certification of an administrative document by a notary, the testator must pay 100 rubles. For each new document, the state duty is charged again. Payment of the fee is carried out in any bank in the Russian Federation or directly from a notary.
2. Payment for notary services. The cost of services depends on the region of treatment. You can find out more about the tariffs on the website of the Federal Notary Chamber. On average across the country, in 2021, the cost of a will is 2,500 rubles. However, the tariff varies in individual regions. For example, in Dagestan, an administrative document costs 900 rubles, and in the Altai Territory - 3,300 rubles.
3. Registration outside the notary's office . If the notary leaves the office, the price will rise 1.5 times.

Deadlines

Typically, a will is drawn up and registered on the day the testator applies to the notary's office. If a citizen has a large list of property that needs to be signed between several heirs, then the notary may offer to come the next day. For example, if there is little time left until the end of the working day or there is a heavy workload.

But, if the testator has problems with the documents or difficulties with the description of the property, and does not have the title papers with him, then the procedure for registering the will may be postponed.

Documentation

What is needed to draw up a will for an apartment? When making a will you usually need:

• testator's passport;
• a list of claimants for his property;
• title papers (to avoid typing errors or typos);
• medical documents on sanity (if a will is drawn up by an elderly citizen, the notary may require a certificate from a psychiatrist).

Such a measure is an additional protection against recognition of the order as invalid, for example, due to the inability of the testator to realize the consequences of his actions when drawing up the document.

Testamentary refusal

An administrative document with a condition is practically no different from an ordinary will. However, it contains a clause regarding the fulfillment by the heir of the testator’s last instructions (Article 1137 of the Civil Code of the Russian Federation).

A will may contain:

• requirement for the right to use premises in an inherited apartment;
• requirement to transfer some things or part of the value of property to another person;
• accept the testator's animals for maintenance.

Restriction of freedom of expression

When drawing up a will, the testator must take into account the interests of citizens who are entitled to an obligatory part of the property. This includes disabled persons (parents, spouse, dependents) and minor children of the testator.

A will cannot exclude the above-mentioned citizens from inheritance. Therefore, if at the time of death the notary identifies such persons, then, regardless of the contents of the order, they can claim part of the assets of the deceased person.

Deadlines for issuance to the testator

The will will be issued immediately. But there is an exception. There are two types of wills:

1. Open . Published in two copies, one of which is given to the author.
2. Closed . One copy. It is sealed in an envelope and sent to the archive.

In both cases, everyone present during writing, including notary employees and witnesses, must keep the secret. What type of will to choose is the decision of the citizen. But in case of disclosure, the testator has the right to demand financial compensation through the court.

Transferring a document to an heir: who decides?

The testator has the right to decide this issue himself, but the secret expression of will is not transmitted. This step eliminates the need for the successor to query the notary's unified database to find out where the will is stored. But if relatives don’t know, there is no risk that a scandal will arise and you will have to waste your nerves and health. The heir is not obliged to keep the secret, although this is also in his interests.

Is it possible to make changes to a will?

Yes, you can . After the document has been drawn up by a notary, subsequent rewriting involves drawing up a new order.

The testator can at any time correct the text or cancel the previous will (Article 1130 of the Civil Code of the Russian Federation). However, for each new notarial act the costs will be deducted in full.

To make changes, you need to contact the notary who compiled the original document. If this is not possible, then the testator can visit another notary office.

At the same time, you should send a letter to the notary who certified the primary order. This is necessary to notify you of the fact and essence of the changes made.

Rules for the validity of a will:

1. If the citizen’s will concerns the same participants and the composition of the property, then the new order cancels the previous one.
2. If the next order concerns only part of the inheritance, then both documents will be valid at the same time.
3. If the final disposition is declared invalid, the inheritance of property occurs on the basis of the previous version of the document.

When filing a new will, the notary makes a mark on the previous form. A corresponding entry is also made in the state register.

Who manages the inheritance of a minor?

Until a child reaches 18 years of age, he cannot dispose of his own property:

• the property of a child aged 0 to 13 years is managed by the legal representative of the minor with the consent of the district guardianship department;
• The owner can dispose of the property of children aged 14 to 17 years inclusive himself, with the consent of the legal representative and the district guardianship department.

So, you can sell property or rent it out with the prior permission of the guardianship department. As practice shows, it is not easy to obtain. To do this, you need to contact the guardianship department at the place of registration of the child. If the legal representative wants to sell an apartment that a child has inherited, then he must provide him with ownership of housing of similar price and area in return. If the child’s living conditions are worse as a result of the transaction, the guardianship department will not give consent.

How many times can a will be rewritten?

The testator can make a will an unlimited number of times . The new document completely or partially cancels the previous one.

If the testator in the next will decides the fate of the same property, but changes the composition of the heirs, then the previous document loses its force. But, if the new will concerns other property, then the current version of the document also remains relevant.

During his lifetime, the testator can make changes to the order or cancel it. If the document is canceled completely, then the testator needs to submit a corresponding order to the notary.