What is and how does the opening of an inheritance occur?

What is opening of inheritance?

The opening of an inheritance occurs on the day when the testator dies or is declared dead, which is confirmed by the relevant document - a death certificate.

The opening of an inheritance is a legal fact that involves...

• Place – where the inheritance business is conducted;
• Time – when inheritance rights and obligations arise, when the countdown for their implementation begins.

How to open and accept an inheritance

The opening and acceptance of the inheritance occurs in the following order: The heirs, having learned about the opening of the inheritance, i.e. about the death of a citizen, in order to formalize rights in accordance with the law of the Russian Federation, they turn to a notary by writing a statement that expresses consent to accept the inheritance. The application form is developed by the notary independently, and its form is given to the heir to fill out. The application is recognized as a fact of legal significance, confirming the will of the heir to consent to receive the inheritance. The absence of such an expression of will entails consequences in the form of a notary’s refusal to take action to issue a certificate.

An heir who permanently resides with the owner of the property until the day of his death is considered to have actually accepted the inheritance. To register the rights, he needs to obtain a certificate of the right to inheritance from a notary within 6 months from the date of opening of the inheritance. As a basis for proving the fact of acceptance of the inheritance, a certificate of residence or registration at the place of establishment of the inheritance case may be submitted.

Documents to confirm the fact are individual in each case and the notary makes a decision in each case separately. In addition, heirs who have paid the debts of the testator, received funds for him, preserved or protected the inherited property, or entered into management or ownership of the inherited property may be recognized as having actually entered into the inheritance. If the notary refuses to recognize the applicant as an heir, the fact of acceptance of the inheritance may be challenged in court.

The meaning of opening an inheritance

Upon death and the opening of an inheritance, the property of the testator acquires a special legal status. It must be transferred to new owners from among the heirs.

Features of this process are:

• The fact of opening an inheritance is the only basis for changing the owners of the deceased’s property. This process is irreversible except for the situation when a person declared dead by the court appears.
• The most important circumstances of conducting an inheritance case are the place and time of opening of the inheritance.

As a result, after the expiration of the inheritance period, the heirs receive ownership rights to the property of the deceased.

Grounds for opening an inheritance

The opening of inheritance occurs in the event of the death of the testator. In practice, the death of an individual means:

1. Biological death. Death of the owner from illness, natural causes, or injury.
2. Declaring a citizen dead. Making a court decision due to a long ( more than 5 years ) absence from the last place of residence. The exact date of reference is the day the latest information is received from the owner. The exception is the situation when a citizen disappeared under circumstances that threatened his life (natural disasters, during military operations). Then the period of absence of information is 6 months .
3. Establishing the fact of death. Making a court decision due to the absence of the body of the deceased, in the presence of accurate information about his death.

Example. A person is declared dead if relatives or other interested parties suspect that the owner is dead. Establishing the fact of death is possible if it is reliably known that the owner of the property died, but his body was not found. For example, in the event of falling into an abyss.

The main document for opening an inheritance is the death certificate of a citizen. The document is issued by the district registry office. The law provides for the possibility of contacting the department:

• at the place of death of the citizen;
• at the place of last registration of the deceased.

The certificate will be issued on the basis of one of the following documents:

• in case of biological death - a medical death certificate;
• when declaring a citizen dead - a court decision declaring the citizen dead;
• when establishing the fact of death - a court decision to establish the fact of death.

Who will issue

The duty of the notary is to approve all aspects of the inheritance process, for which a list of documents is requested. One case is registered with the notary at the place where the inheritance was opened, despite the scattered addresses of the inherited objects. When an inheritance is opened, information about the obligations of the deceased must be provided to the notary's office. Legal successors receive property by will or by law.

Opening a will is a procedure performed by a notary. In the will, the testator determines the terms and legal successors. Opening an inheritance under a will requires the provision of the main document – ​​the will. A will is a unilateral agreement with an unclear effective date. An open date is the unknown moment of death. Information about the will is stored in the Register of the notary's office.

Relatives can open an inheritance case without a will by confirming their rights at a notary office. The degree of relationship matters.

The case that opens the procedure for transferring inherited property is called a probate case. It includes documents of the legal stages of registration of inheritance. The case is registered and kept by the notary.

Opening an inheritance: general points

Inheritance is the emergence of inheritance legal relations, as a result of which the property rights and obligations of the deceased (testator) are transferred to his heirs. Since the law recognizes the right of a person to dispose of his property, including in the event of death, two types of inheritance are distinguished: by will and by law. In the second case, inheritance occurs in the absence of a will, that is, if the personal wishes of the deceased are not expressed.

The time of opening of the inheritance is the day and hour of death of the testator. This point must be confirmed by medical evidence or a valid court decision if the person was declared dead. Before this moment, any inheritance legal relations are impossible, regardless of the physical and mental health of the testator.

The place of opening of the inheritance is considered to be the last place of residence of the testator . If we are talking about persons under 16 years of age, then their place of residence is considered to be the place of residence of their parents or guardians. In situations where at the time of death a person was outside of Russia, but had property in Russia, the place of opening of the inheritance will be the location of this property.

If the property is located in different places, then the inheritance is opened at the location of the property. If there are several real estate objects, the inheritance is opened at the location of the largest or most valuable (according to market value) share of it.

If there is no real estate in the estate, the inheritance is opened in the place where the movable property is located.

What types of inheritance are there?

According to the Civil Code of the Russian Federation, there are two types of inheritance:

• in law;
• by will.

According to the law, property is inherited for which there was no order from the deceased citizen. Heirs by law inherit property according to the order of which there are eight in the Russian Federation. The heirs of the corresponding line are called upon to inherit. If there are no heirs in the corresponding line, heirs in the next line are called upon to inherit. The fact of acceptance of the inheritance is confirmed by the will of the successor in the form of filing an application accepted by a notary.

The opening of an inheritance, the procedure for its acceptance, the grounds for receipt, the procedure for formalizing and registering rights are the same for both inheritance by law and inheritance by will. The documents that need to be submitted to confirm the property rights of the testator do not depend on the type of inheritance. When inheriting both by law and by will, the place of opening of the inheritance is also the last place of residence of the deceased.

Inheritance by will is carried out if there is an order from the owner regarding the fate of the property on the day of death. The opening of an inheritance, both by will and by law, arises from the date of death of the testator. When accepting an application, the notary first checks the existence of the fact of inheritance under a will. The deadline for accepting an inheritance both by law and by will is the same.

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Force majeure

Situations where it is not possible to determine the place of residence and registration of the testator, or where there is no registration at all, for some reason, are not uncommon.

In this case, the place where the inheritance is opened is the one where the most valuable, in the material sense of the word, part of the inheritance is located. In most cases this is real estate. If there is no real estate, then the most valuable movable part of the inherited property is taken into account.

It is important to understand the following - this procedure for determining the place of opening of the inheritance takes place only if the heirs really do not know the place of registration and residence of the testator. If the place of residence is known, but there was no registration at that address, then the heirs need to apply to the court with a corresponding application.

Time

The time of opening of the inheritance is...

• day of death (according to medical certificate);
• the day the court decision entered into legal force or the day of the expected death indicated in the court decision (if the citizen is declared dead by a court decision).

What is the time, the moment of opening the inheritance

The time for opening an inheritance is determined depending on the basis for the opening:

• in the case of biological death, the day of death indicated in the medical death certificate is recognized;
• if the fact of death is established - the day specified in the court decision;
• in the case of declaring a citizen dead - the day the court decision enters into legal force.

If the participants in the process appeal the decision of the court of 1st instance in an appeal, then the procedural document gains force based on the results of the hearing of the case in the appellate court.

If a citizen declared dead went missing under circumstances that threatened his life, the court may establish the expected date of his death. Each case is considered by the court individually. The basis of the court decision is categorical evidence of the facts stated in the claim.

Example. The testator has gone missing. On the eve of his disappearance, strangers threatened him with physical harm. Contacting law enforcement agencies was unsuccessful. Six months later, the man's body was still not found. Relatives of the missing person went to court. The man was declared dead. The court decision came into force on March 15, 2017. Based on the judicial act, the relatives received a death certificate.

Is there a deadline for accepting an inheritance?

According to the law, a period is a certain period of time during which certain actions must be performed. In the inheritance procedure, the term disciplines the participants in the relationship, provides guarantees of the inviolability of property rights, and its importance is important. Article 1154 of the Civil Code of the Russian Federation indicates that an inheritance is accepted within 6 months from the date of opening of the inheritance, which is counted from the date of death of the person. The notary accepts the application expressing the will of the heir during this period. Acceptance of the inheritance in fact occurs within the same period, and from the day the inheritance is opened, the heir must perform actions that indicate the acceptance of property from the deceased.

It is believed that such a period is sufficient for the heirs of the deceased citizen to decide whether to receive the inheritance or refuse it. An application submitted after the deadline has expired is not recognized and does not confirm the fact of acceptance of the inheritance. To protect rights in such a situation, the heir must file a claim in court. If during the proceedings it is recognized that the deadline was missed for a good reason and there are documents confirming this circumstance, the state body will restore the deadline by decision.

Place

To enter into his inheritance rights and obligations, the heir should contact a notary at the place where the inheritance was opened . This means that heirs can apply not to any notary office in the country, but to a specific one.

As a general rule, the place of opening of the inheritance is:

• last place of residence of the deceased;
• the location of the deceased's property (or the location of most of the property if it is located in different places).

How to determine the place of opening of the inheritance

According to the Civil Code of the Russian Federation, the place where the inheritance is opened coincides with the residential address of the deceased citizen or, in his absence, the location of the largest share of the property. In other words, the place where the inheritance is opened is the fact of the testator’s residence at a certain address or the fact of the location of the property. Documents confirming the residence of the deceased and the place of opening of the inheritance are submitted simultaneously with the time of filing the application for acceptance of the inheritance.

If the place of opening of the inheritance cannot be identified, citizens have the right to go to court by writing an application to establish the place of opening of the inheritance.

The meaning and concept of place, opening of inheritance is recognized in that the heirs can apply for the acceptance and issuance of a certificate from one notary whose notary office is located in the same district.

When resolving disagreements about establishing the place of opening of the inheritance, the court will be interested in the location of the testator’s property and what documents confirm this. The fact that all heirs apply to one office where the notary is located contributes to the optimal protection of the rights of all heirs.

What is considered the place of opening of inheritance?

Options for where to open an inheritance

The place of opening of the inheritance is usually determined by the residential address of the deceased subject (Article 1115 of the Civil Code of the Russian Federation). The remaining options are used quite rarely.

The procedure for confirming the place of opening of inheritance through the court

Notaries refuse to issue a certificate of inheritance if:

• the testator was not registered or was registered temporarily;
• the house register with information about the registration of the testator was lost;
• there is no real estate as an object of inheritance.

This problem is resolved in court, where a corresponding application is filed.

In addition to the application, the following documents are sent to the court:

• a copy of the death certificate;
• copies of property ownership documents;
• extracts from the Unified State Register for objects of inheritance;
• documents indicating that the potential testator was refused by the notary to accept an application or to perform notarial acts (decree, correspondence).

You must also include a receipt for payment of the court fee. This application is considered in special proceedings, according to a simplified procedure. The state fee is insignificant, the consideration time, compared to claims, is reduced.

During the court hearing, potential heirs or interested parties must prove the fact of residence of the deceased at a specific address.

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Based on the court decision, the heir turns to a notary, who will begin the process of preparing inheritance documents according to the general procedure.

Rules for determining the place of opening an inheritance case

The place of opening of the inheritance is determined taking into account the specifics of the life of the deceased person in a certain subject and his acquisition of property here or in another region. Often the heirs live far from the location of the inheritance, and to complete the formalities they have to come to the notary, which is very inconvenient. This problem can be solved by issuing a notarized power of attorney for your representative, who will represent the interests of the successors and act on their behalf.

Place of stay and place of residence: what is the difference

A place of temporary stay differs from a place of residence in that residence is not permanent (for example, a hotel where a person lives during a business trip). The place of residence is characterized as permanent, and this is confirmed by the citizen’s registration.

There are rules regulating a person’s stay in another region when temporary registration is issued. This is an A5 certificate of urgent registration. This document determines a person’s position at the place of stay for a certain time.

How to confirm the place of opening of the inheritance

There is a clear sequence in identifying these places. Failure to comply with the order entails a violation of the rights of other heirs.

Sequencing:

1. To begin with, the last place of residence of the testator is specified; when determining it, it is the place of opening of the inheritance.
2. If the previous location is unknown or located outside the Russian Federation, then the place of discovery is the location of such inheritance (inherited property).
3. If a citizen’s inheritance is located in different places, the location of its discovery is considered to be the location of the main movable and immovable objects with the greatest value. It is worth noting one more nuance regarding the place of residence as the place of opening of the inheritance. In Art. 20 of the Civil Code of the Russian Federation indicates its permanent or preferential character for residence. We are not talking about registration as such here. Regarding the last point, the value of the property is determined based on its market price.

The nuances of determining the right place

Since the notarial district for carrying out activities is determined by the boundaries of the constituent entities of the Russian Federation, the notary cannot independently change them. The territory of a notary district can be automatically adjusted only when the borders of the constituent entities of the Russian Federation change. In some cases, the area of ​​activity of a notary changes by decision of the main notary chamber and the Ministry of Justice.

If a change in the boundaries of the subjects entails moving the location of a notary's office from one district to another, then the notary engaged in private practice, and not in the public service, is assigned the previous district for conducting activities (including in inheritance matters).

How does the inheritance open?

Based on one of the supporting documents, a death certificate is issued. The date indicated in the document is considered the date of opening of the inheritance.

To obtain the necessary document, the heirs need to provide the following papers to the registry office:

• application (form No. 21);
• a copy of the applicant's passport;
• ID card of the deceased (if available);
• document - basis (medical death certificate, court decision).

The first time a death certificate is issued free of charge. A state fee is charged for issuing a duplicate document. Its size is 350 rubles .

If the original is lost, the certificate must be restored.

Opening of inheritance in case of lack of registration

Where to turn if potential heirs are not aware of the place of residence of the deceased and there is no registration? Or has the person lived abroad for a long time, and the property is located in Russia? In this case, the inheritance is opened at the location of the real estate or the most valuable property that belonged to the testator. The potential heir needs to request information from government agencies or have the property assessed by professional appraisers.

For example, the testator owned an apartment valued at 2 million rubles and a house valued at 3 million rubles. The properties are located in different regions. In this case, the inheritance will be opened at the location of the house.

A similar rule applies to movable property in the event that there are no real estate objects in the inheritance estate. If the place of permanent residence of the testator is not known, and the inheritance mass contains shares or equity shares of a business entity, the inheritance is opened at the place of registration of such an enterprise.

All these rules apply to a situation where the heir is not aware of the permanent place of residence of the deceased. If the testator was not officially registered, but permanently resided at a specific address, potential heirs need to obtain an appropriate court decision.

Place of opening of inheritance

According to Art. 1115 of the Civil Code of the Russian Federation, inheritance is opened at the place of registration, as well as at the place where the deceased permanently or primarily resided. Such places include:

• apartments, including for official use;
• private houses;
• rooms, including dormitories;
• objects included in the specialized housing stock;
• another dwelling owned or rented.

Non-residential premises do not belong to objects of this category.

There is a situation when the testator is a representative of the indigenous people of Russia, leading a nomadic life. In this case, the places of residence of such persons, on the basis of Art. 2 Z-RF dated June 25, 1993 No. 5242-1, are settlements of municipal regions where the nomadic route runs.

It should be noted that inheritance is not opened at the place of actual death of a citizen if it does not coincide with the place of permanent residence. For example, the deceased was studying or on a business trip in another city, in prison, or doing military service. The inheritance will be opened at the place of registration of the person or at the place of his last permanent residence.

Inheritance is also not opened at the place of temporary registration or place of temporary residence (stay). In the latter case, such places may include medical institutions, hotels, and nursing homes.

When the testators are minors or incompetent persons, the inheritance will be opened at the place of residence of the parents or other representatives.

Nuances of the procedure for opening an inheritance

It happens that the heirs do not have time to meet the regulatory deadlines for accepting the inheritance and turn to the notary too late, when he has already issued a certificate of inheritance to persons who have carried out all the necessary procedures for registering the inheritance on time.

Such a slow heir has two ways to receive an inheritance:

• try to obtain the written consent of other heirs to include him among the recipients of the inherited property (naturally, by reducing the shares of those who have already received the inheritance), on the basis of which the notary will be able to issue a new certificate, canceling the previously issued one;
• If consent is not obtained, it is possible to go to court. If during the proceedings the heir is able to prove that he was unable to accept the inheritance for objective reasons that can be considered valid, then the court may decide to include him among the heirs and redistribute the property included in the estate.

If there was only one heir, then he could actually accept the inheritance. If you do not contact a notary within the prescribed period, you will then have to go to court to confirm the legality of the actual acceptance of the inheritance by providing evidence of such acceptance.

The concept of opening an inheritance

The concept of inheritance is defined as the sum of all rights to the property of a deceased citizen and his obligations, passing to the heirs. The Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) devoted a chapter to the procedure for transferring rights and obligations from the deceased to the heirs. In it, the legislator enshrines the concept of inheritance, the grounds for the emergence of the right to inherited property, legal facts entailing significant consequences, property that is recognized and considered as an inheritance mass and which testators can receive by inheritance, the procedure for obtaining and registering property rights in the order inheritance, as well as documents that must be provided in cases of various disputes related to inheritance, including when establishing the place of opening of the inheritance.

The opening of an inheritance is a legal fact, a procedure according to which persons can declare rights to a citizen’s property. The transfer of rights from the testator to the heirs is preceded by the death of the citizen. The death of a citizen is confirmed by a death certificate. The basis for issuing a certificate is a medical certificate of death, which states a significant fact - the date of death.

A death certificate is a document with which the inheritance case begins with a notary and from the moment of its issuance the entire procedure for registering an inheritance is linked.

A citizen who does not show up at his place of residence for a long period of time may be declared dead by the court. In this case, the date of death of the citizen is considered to be the date the decision enters into force.

From the moment of death of a citizen, the Civil Code of the Russian Federation determines the time of opening of the inheritance. The moment of opening the inheritance and the time of opening the inheritance are identical concepts. It is on the day of opening of the inheritance that the legal successors have the right to inheritance and it is from this day that the inheritance procedure begins. If the heir dies after the opening of the inheritance, the right to inherit his share passes to his heirs.

How to determine an authorized notary at the place of opening of the inheritance

The most practical question is how to identify a notary to initiate the procedure for opening an inheritance case? If the place of opening is known and there are no difficulties in providing a certificate of residence, you can contact the notary office (including by telephone). Here they will also tell you the notary's address and full name. and operating mode. You can also go to the nearest notary office, where, based on the data about the place where the inheritance was opened, they will explain which notary is authorized to open the inheritance case.

The place of opening of the inheritance is the last place of residence of the testator

Art. 1115 of the Civil Code of the Russian Federation contains rules according to which the place of opening of inheritance is determined. The general rule is that the place of opening of the inheritance is considered to be the last place of residence of the testator. But in practice, this last place of residence can be difficult to determine. In such cases, you may need the help of an inheritance lawyer. Consultation with a specialist will help sort out the legislative norms that are related to the place of opening of the inheritance.

Why can it be difficult to determine your last place of residence?

According to Art. 20 of the Civil Code of the Russian Federation, place of residence is the place where a citizen lives permanently or primarily. At the same time, the federal law “On the right of citizens of the Russian Federation to freedom of movement” states that citizens can choose their place of residence within the Russian Federation independently. The place of residence can be a residential building, apartment, office premises intended for housing, premises in a specialized housing stock or premises owned by a citizen, as well as premises in which he lives under a lease, lease, sublease or on other legal grounds .

Consequently, a place of residence is a premises that is recognized as residential (complies with all standards of residential premises prescribed by law), and which was the permanent place of residence of the testator.

The place of opening of the inheritance is confirmed by a notary. To do this, he needs documents from the registration authorities confirming the last registration of the testator at the place of residence. A temporary place of residence (military service, stay for treatment or on vacation, on an expedition, places of imprisonment) is not recognized as the place of opening of inheritance. If at the time of death the testator was undergoing treatment, in prison, doing military service or was on a business trip, the place of opening of the inheritance will be recognized as his last place of registration at the place of residence, and not the place where he stayed while performing his duties or exercising his right to rest or treatment.

As a general rule, the place of opening of the inheritance is the last permanent place of residence of the testator, regardless of the length of his residence in another place. But if a dispute arose between the heirs, and the testator, for some reason, lived outside his permanent place of residence for a long time, the question of where to open the inheritance is decided by the court. If in your situation the implementation of inheritance rights depends on a court decision, you simply need to consult a lawyer in civil cases.