After my mother died a year ago, my brother and I entered into an inheritance. The two-room apartment that my mother owned was divided in half. My brother currently lives in this apartment. How can I get my share? How is an apartment divided by inheritance?
- Methods for dividing inheritance
- How to enter into inheritance rights to an apartment?
- How to divide an inherited apartment by agreement?
- Judicial division of an inherited apartment
- Conclusion
The concept of shared ownership
When indivisible property goes to several owners at once, and its parts are not clearly distinguished, then the apartment is considered to be in shared ownership. This status is assigned to her when the inheritance is opened. This procedure is established by the Civil Code of the Russian Federation (Article 1164).
Article 244 of this federal law indicates that it is possible to establish shared ownership in an apartment. Its owners can do this by agreement or through court if agreement has not been reached.
Residential property is divided only officially - it is physically impossible to do this. A share is an allocated portion of the inheritance, expressed mathematically.
According to Article 1152 of the Civil Code of the Russian Federation, officially accepted property passes to the heir from the day of the death of the testator, and it does not matter when it was actually accepted or the right was registered.
When the inheritance is opened, the successors have the right of common ownership. Legal separation of parts is not necessary - the property can be used jointly.
Mandatory inheritance share
If real estate is bequeathed to one person, this does not exclude the formation of common property among several recipients. This is possible if there is a right of compulsory share. This is reflected by the Civil Code of the Russian Federation (Article 1149).
Part of the property due to a person upon inheritance by law is considered obligatory. Its size is at least 50% of the legal share that can be claimed. The following persons have this right:
- the child is disabled or under 18 years of age;
- disabled spouse or parent;
- disabled dependent.
To satisfy the right to the obligatory part, the untested part of the property is used. If it is insufficient, they turn to part of the bequeathed property. The law allows that when shares are distributed by inheritance, the rights of the remaining (legal) successors may be reduced.
The size of the mandatory part may change, and sometimes it is not awarded at all. This is possible when the legal successor under the will lived in the apartment (house), and the legal holder of the obligatory share did not use the housing.
Husband's (wife's) inheritance share
The owner of the property has the right to register an inheritance for the part that belongs to him. When real estate is acquired during a legal marriage, one half is owned by the spouse.
According to the Family Code of the Russian Federation (Article 39), spouses have equal shares of the housing they acquired during marriage. Another option is possible if this is reflected in the marriage contract.
When one of the spouses dies, his heirs are entitled only to his half of the home. The second spouse also has the right of inheritance, and he is a co-owner, which gives him an advantage when dividing the property. He can register an inheritance according to the law and, according to the order of inheritance of the share, receive the following status:
- first line of inheritance (legal order);
- heir under a will;
- applicant for a mandatory share (there must be reasons).
How to divide an inherited apartment by agreement?
Heirs who have received an apartment in shared ownership have the right to register
. When drawing up the document, they must take into account the principles of distribution of the inheritance mass. The agreement must not violate the rights of heirs and current legislation. In accordance with it, state registration of rights to real estate is carried out.
There is no unified form of separation agreement.
can be obtained from a notary. The text of the document lists its participants and indicates what specific property each of them will receive. The agreement states:
- the amount of compensation that the applicant for the property will pay to other heirs for abandoning their share;
- an object that is transferred in lieu of compensation to those who refuse a share;
- the cost of each property;
- refusal of compensation for shares.
The parties to the agreement can add any provisions to it. For example, about transferring the entire inheritance to one person, about changing the size of shares, about natural division of real estate, etc.
The cost of real estate shares is calculated after assessing the property and determining the price of 1 m2. Each applicant can order a property appraisal through a licensed company. Heirs also have the right to challenge the result of the examination in court.
Determining the size of shares
The size of the share depends on several factors:
- features of inheritance;
- other property transmitted by inheritance;
- status of obligatory heir;
- right of representation (inheritance in place of a deceased successor).
By default, all heirs have equal shares. This option is ideal, but not always possible.
By agreement
Housing inherited by several persons, which is considered common shared property, can be divided peacefully. It is carried out by completing a civil transaction. This option is completely legal.
The agreement allows for the division of property by the heirs into equal or unequal parts. This option is legal when each successor agrees with the decision. It is important that the interests of incapacitated or under 18 relatives be respected.
Heirs' property rights must be registered. The basis is an agreement. Its conclusion is possible even after receiving a certificate of inheritance. If information from these sources differs, then when drawing up a certificate of ownership, the fundamental document for Rosreestr employees is the agreement.
By court
If the successors were unable to come to an amicable agreement or missed the deadline for contacting a notary, then the parts of the inherited real estate must be determined in court. You need to contact the district authority at the location of the disputed housing.
In fact, the housing is not divided, therefore significant differences in the size of the shares are possible. According to the Civil Code of the Russian Federation (Article 1168), if the inheritance includes other property, then the entire apartment (house) can be received by one successor. The rest will be content with those other possessions. This option is ensured by the right of advantage, which arises if:
- the successor and testator had the right to common property, and part of it is included in the estate;
- the inherited property was constantly used by the heir;
- the successor lived in the inherited real estate, he does not own any other housing, and other heirs are not the owners of the inherited apartment (house).
The decision made by the court is registered in the Rosreestr for the region. It becomes the fundamental document and a replacement for the certificate of inheritance.
Attention! The court may rule that a previously issued certificate becomes invalid (cancelled). Then, in return, the issuance of a document is required, which will reflect the distribution of shares established by the court.
Procedure for registering shared ownership
Registration of a share of an apartment in ownership after the death of the testator is possible after the opening of the inheritance. To contact a notary, 6 months are allocated from the day he died (was recognized as such). The timing and other aspects of accepting an inheritance are considered by the Civil Code of the Russian Federation (Article 1154).
To contact a notary and register a share in the ownership of an apartment, you need to have the following documents:
- death certificate of the testator;
- will, if any;
- an extract from the testator’s last place of residence;
- title documentation;
- An extract from the register of property rights may be required.
The opportunity for heirs to receive a certificate of inheritance rights occurs when six months have passed from the date of its opening. This period is necessary to ensure that each successor has time to declare his rights. Changing the deadlines is possible if:
- the court decided to suspend the issuance of the document;
- there is a conceived but not yet born successor;
- there are no other heirs.
Reference! The document can be issued to each successor individually or one copy for all, and apply to all property or its shares. It is necessary to pay a notary fee. A fee will also need to be paid to register the certificate with Rosreestr.
Civil marriage and inheritance
If a man and woman do not register their relationship, then their marriage, from a legal point of view, is considered cohabitation (civil). Such spouses have much fewer rights than legal husbands and wives (4th line of inheritance).
And most restrictions apply specifically to property relations. For example, the regime of common ownership of acquired property is not used. That is why, when inheriting, the common-law spouse is not included in the first priority of inheritance.
The right to inheritance in a civil barque can arise in two cases:
- If the owner left a will and indicated in it the common-law spouse as the legal successor.
- If there are no applicants in the first three stages. According to Art. 1264 of the Civil Code, the inheritance can go to a person who has lived with the testator for at least 5 years.
In some cases, a common-law spouse may claim a compulsory share (you must prove long-term residence with the testator, as well as being supported by him).
Relinquishment of a share in an apartment, house
You can refuse your share of real estate. This must be done in writing. You can simply write a refusal without specifying specific persons or renounce the share in the apartment in favor of another successor. It does not matter whether the property is inherited by law or by will.
The refusal is given six months from the date of opening of the inheritance. The application must be submitted to a notary. This issue is reflected in the Civil Code of the Russian Federation (Article 1159).
You cannot refuse an obligatory share of inherited property or formalize a refusal in favor of an unworthy heir.
Attention! A minor or incapacitated heir may refuse the part due to him only if the body guarding him gives consent to this. In practice this rarely happens.
The Civil Code of the Russian Federation (Article 1161) indicates that if the heir refuses the part of the housing assigned to him, then other successors receive the right to it. It is divided in proportion to the shares they inherit, that is, they are incremented.
Division of inheritance by will
The house is large, two-story, but in fact we can only be calm in our room. I have already asked my husband many times that let’s sell, exchange, or at least do something, because this house is the only name we have. We can neither relax there nor grow anything in the garden.
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In the “Advice from a Lawyer” section, we answer your questions related to the field of law and requiring qualified clarification. Tatyana Semeshko, a lawyer at the Minsk Regional Bar Association, managing partner of the law office, will comment and explain the legal aspects.
But the coveted square meters often become the cause of violent quarrels between heirs, especially if there are several contenders, and their relationship resembles fighting.
Plus, many, according to her, are afraid to be the first to start the paperwork process, since they still believe that monstrous queues and endless ordeals await them for various certificates.
Division of inheritance between heirs is legally possible even if not all of the property that belonged to the testator is bequeathed, but only a certain part of it. The part of the property that remains intestate is divided equally among the heirs according to the law.
If he agrees to purchase it, then the entire house will become his property after the share is bought out. If the second owner refuses to buy out the share offered by the co-owner, then he must demand from him an official refusal to buy out. After receiving it, he can offer it to other buyers.
As a rule, certain pieces of property are inherited: an apartment, a summer house, a car, etc. In most cases, the testator's share is not 100% because the property is joint. For example, the father owned a dacha together with his mother in equal shares, respectively, his share in the ownership of the dacha is 50% or ½ part.
Part 1 art. 40 of the Code of Civil Procedure of the Russian Federation provides that a claim can be brought in court jointly by several plaintiffs or against several defendants (procedural complicity).
As a result of mistrust between relatives, each filed an application to inherit their share of the deceased mother’s apartment.
Disputes often arise in inheritance cases. Sometimes it is difficult to determine whether property is jointly acquired. For example, if a car was given by a husband to his wife, of course, without drawing up a deed of gift, then by law it is the joint property of the spouses, since it was purchased during marriage. However, the wife considers him her property, which is quite justified.
Three heirs since 1973. The will indicated only three surnames without shares, but verbally at the family council, premises were assigned to each of them, because wooden house with 5 walls. There have never been any complaints regarding the use of the premises in 38 years.
