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What is a testamentary refusal?

A testamentary legacy (legate) is a property obligation assigned by the testator to the heir in favor of third parties, who are the legatees. It is fulfilled within the limits of the value of the property passing to the person.

If he has the right to an obligatory share in the inheritance, determined by Art. 1149 of the Civil Code of the Russian Federation, then it is preserved, and the transferred obligations are fulfilled for the remainder of the value of the property.

Art. 1137 of the Civil Code of the Russian Federation states that a testamentary refusal is the wish of the testator, personifying the obligation of the heir to resolve his property issues in favor of other persons. It is a certain condition for acquiring part of the property during the inheritance process.

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Svetlana Samoilenko

Inheritance lawyer

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The law provides for the possibility of obliging a citizen to fulfill obligations in relation to several people at once. These can only be those people who have the right to demand that the successor pay the property obligations of the deceased citizen.

The maintenance of the legacy has an obligation that the heir will have to fulfill when accepting the property within the framework of the law. It acquires legal force, that is, it becomes valid only after the order with it is approved by a notary.

Only the successor fulfills the obligation, which cannot exceed the value of the property he inherits. The process begins at the end of the inheritance procedure.

Thus, legislative removal implies the possibility of the heir fulfilling property debts to other people after the death of the testator.

Example of a testamentary refusal

Obligatory refusal in the practice of inheritance law occurs often, for example:

Examples of testamentary refusal

1. A man executed a will for his daughter. After his death, she inherits a three-room apartment. At the same time, this order specifies the daughter’s obligation to provide her father’s brother with access to the property. Next, the daughter will decide whether to accept this privilege or refuse it. If the removal is not limited by time, then his successor receives the property for unlimited use.
2. Family X has a family necklace that each child of the deceased mother wishes to inherit. She bequeaths it to only one child, and the rest must receive financial payments from the heir based on the legacy.

The difference between a testamentary assignment and a testamentary refusal

When registering a testamentary refusal, the testator “refuses” or “assigns” certain financial responsibility to the successors, i.e. imposes financial or property obligations on them (Article 1137 of the Civil Code of the Russian Federation). When accepting an inheritance containing a testamentary refusal, the successor must transfer part of the property/money to third parties (legatees).

An example of a testamentary refusal would be a situation where only one person inherits residential premises (apartment or house), but at the same time he is obligated to provide this property for living to other persons. The peculiarity of a testamentary refusal is that it remains valid even after the transfer of ownership (for example, after the death of the heir).

A testamentary refusal applies not only to those persons who are listed at the disposal of the testator, but also to those who claim the inheritance by law. The amount of the refusal is limited to the value of the inherited property and/or money, minus the debts of the testator.

Thus, a testamentary refusal applies only to property legal relations , while a testamentary assignment can also have a non-property orientation.

A testamentary refusal has a limited validity period - the right under it can be exercised within three years from the date of opening of the inheritance , while the assignment is in no way regulated in time, since it is of a generally beneficial nature.

What can be the subject of a legacy?

Clause 2 Art. 1137 of the Civil Code of the Russian Federation states that the subject of obligatory refusal can be both material and non-material benefits. A legacy can be aimed at inheriting property for ownership or at obtaining the right to dispose of it.

The process of transferring a person's right to own property does not provide a chance to dispose of it.

The subject of the legacy may be:

1. The obligation to make financial payments in favor of a person.
2. Transfer to a person of the right to own property.
3. Providing the recipient with an obligatory refusal of services.
4. Performing work for another citizen.
5. Receipt by a person of ownership of property from an heir.
6. Transfer of the right to use property to the legatee.
7. Fulfillment of other obligations of the testator.

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Svetlana Samoilenko

Inheritance lawyer

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If the successor receives the burden of paying debts to the creditor, then they are carried out exclusively within the value of the property. All the finances remaining from this process are his inheritance for further disposal.

Refusal of inheritance in favor of another person (heir)

If you intend to renounce your share, then you can write a statement and take it to a notary's office. In your application, you must clearly write the reason for your unwillingness to accept your share.

must also who will receive your share instead of you (refuse in favor of another heir).

Remember that you cannot write a refusal and register a person who is not on the list of those who have the opportunity to receive a share to receive your share (a refusal in favor of another person is impossible). Also, the document may well indicate what to do with the share of the person who refused it.

In this case, you cannot write down the one who will receive everything for you, because this question has already been written down.

It is also important to remember that when you give up your share, you give up the whole thing, and not just some part. And if you have already issued a refusal, then you cannot withdraw the application.

Therefore, when you find yourself in any of the situations described above, first familiarize yourself with all aspects of the matter, and then decide what is best for you.

Registration of refusal under a will

The document for removal by order is drawn up in writing in the form of a list, which indicates the things to be transferred and the actions necessary to perform in favor of the person and information about him:

• FULL NAME.
• Date of birth and place of residence.
• If the third party is legal: address, name, registration date.

The Civil Code of the Russian Federation gives a citizen the right to draw up a legacy without a will, but it will only be valid if it is certified by a notary.

When registering, it is worth indicating all the heirs who, by the will of the testator, must fulfill his obligations.

A legacy is part of a will, which is why they have common requirements for execution.

A prerequisite for the further validity of the document after the death of its originator is a notary certificate. This unilateral transaction will be canceled if it has not been approved by a notary.

Differences between bequest and assignment

The execution of actions in favor of the recipients is included in the certificate of inheritance. If ownership of a residential premises is transferred with a refusal in favor of a relative or other person, the property receives an encumbrance. This fact is recorded when registering the object in Rosreestr.

A record of the existence of an encumbrance is made in the registration information.

Subsequently, the encumbrance remains. When real estate encumbered with a waiver obligation participates in property transactions, the encumbrance is not removed, but is transferred along with the apartment.

For example, after death, the owner left the apartment to his son and appointed his cohabitant, who is not related to the heir to the apartment, as the legatee. The citizen has a choice:

• Accept an apartment with a designated encumbrance, granting the right of constant unhindered use of its share to a person who is practically a stranger in the sense of kinship.
• Refuse to inherit.

Acceptance of real estate means for him lifelong responsibility for the legatee.

He will be able to change the condition of the deceased father only after providing his common-law wife with an appropriate place of residence, with her consent.

Otherwise, when renting out an apartment, he is obliged to leave a tenant in it as a citizen with the right of residence. The share of the residential premises in which she lives cannot also participate in property transactions.

In the case of a testamentary assignment, no encumbrance arises. The right to enter into an inheritance is not conditioned by the will of the deceased as in the previous case. The owner takes possession of real estate, money and other property, regardless of the good faith attitude towards the will of the deceased. Conscientious execution is assumed, but is not regulated by law.

Sometimes the orders of the deceased are never carried out.

In this case, interested parties who fall into the category of recipients of benefits from the deceased can force the heir to carry out the will of the deceased in court, on the basis of the assignment imputed to him.

In case of passivity on their part, the initiative may come from the executor of the order or from third parties aware of the transferred order.

A testamentary refusal will not tolerate such arbitrariness. It has the content of a resolution and is formalized together with the acceptance of an object or property, the execution of which is expressed in favor of the legatee.

What is a testamentary assignment? Differences from legate

Testamentary refusal and testamentary assignment are similar legal concepts, among which there are still differences:

1. Obligatory assignment involves the transfer to a successor at the disposal of the deceased of non-property debts. For example, when receiving an apartment, he will have to take care of the dog. If this condition is not met, the citizen will not be able to receive the inheritance.
2. A testamentary assignment obliges not a specific person to fulfill an obligation as a condition for receiving property, but all heirs in accordance with their shares in the object of inheritance. If the person accepting it dies, the property, along with the debts, passes to another person.
3. The assignment can be directed not only to the maintenance of property and its elements, but also to the commission of other actions that do not concern it. For example, the condition for receiving things may be to give someone bonus money, or to open a charity foundation or clinic.
4. If one of the heirs does not fulfill the obligation to assign, another equal or next-ranking relative may file a claim in court with this statement and a request to take away his share subject to the conditions of performing the necessary actions.

It turns out that removal by will controls the heir’s attitude towards the testator’s things, and assignment controls the achievement of non-property goals, which are the conditions for receiving them.

These phenomena of inheritance law are similar in that both express the will of the deceased person in relation to his property.

Testamentary assignment

Refusal in favor of a legatee and testamentary assignment are similar concepts from a legal point of view. Testamentary assignment is a process that is aimed at carrying out actions of a material nature and non-property obligations.

Example

A testamentary assignment should include such an item in the testamentary document as caring for the testator’s cat, dog or other animals or caring for his garden plants . Such an obligation can be assigned to a citizen if in the testamentary document a certain part of the property was allocated to him for assignment.

With the help of a testamentary assignment, only property or material obligations are carried out to achieve a common goal, as well as various obligations, for example, donations. A testamentary assignment will be possible for the successor only after the procedure for accepting the inheritance.

If the legal successor refuses the inheritance or dies, then this obligation of assignment will pass to other relatives of the successors specified in the testamentary part of the document and receiving his share. If the successor passes away after the process of accepting the inheritance, then the testamentary assignment must be carried out in full by his successors of the first line. This Law was adopted in 2001 and remains relevant in 2020.

The executor of a will only has the right to perform the actions prescribed in the testamentary assignment when he agrees to be the executor of this testamentary document. Another point that distinguishes a testamentary assignment from a waiver is that actions can be carried out in the interests of a large number of people. For example, a testator may oblige his heirs:

• issue awards to finance any projects or programs;
• present collectibles;
• provide pensioners with the opportunity to receive treatment in a certain medical institution, clinic, which was the property of the testator;
• education of children from low-income families of a certain locality in an educational institution that was created by the testator;
• providing research programs in various fields and so on.

When drawing up his administrative will, the testator assumes that the heir will take a responsible approach to the execution of all prescribed actions. If this does not happen, then any other heir under the will can file a lawsuit in court demanding execution of the testamentary assignment.

Video: Concepts of testamentary assignment and refusal

Failure Size

Legislation determines the amount of the legacy solely within the framework of the inherited property .

The successor fulfills the material obligations of the deceased relative for the amount equal to the inheritance. What remains after this procedure is now his property. If he has circumstances under which he can legally claim an obligatory share in the inheritance, then he first receives it, and the remaining funds go to fulfill the obligations.

Expert opinion

Svetlana Samoilenko

Inheritance lawyer

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The full amount of a possible legacy is calculated after the heir has incurred the costs of the citizen’s funeral, paperwork, etc.

What may be specified in a will

In Art. 1139 of the Civil Code of the Russian Federation regulates an indicative list of actions that may be assigned under a will:

• all actions related to the burial of the deceased testator (as a rule, the testator indicates from which sources the expenses will be paid, or will leave these issues to the permission of the heir);
• maintenance, supervision and care of the deceased’s pets for the entire period of their life;
• actions for generally beneficial purposes, or in other directions that do not contradict the law.

Since the will of the testator, expressed in the text of the will, is protected secret until the moment of his death, the heirs learn about the assigned responsibilities only after the opening of the inheritance case. The right to demand the performance of actions arises from any interested parties, and it can be presented in court.

Deadlines for receiving a legate

Citizens have the right to rely on the legacy left by them for a period of up to 3 years from the death of the citizen. As soon as this time period ends, the testamentary refusal loses legal force, and the terms can no longer be restored.

According to paragraph 3 of Art. 1138 of the Civil Code of the Russian Federation, if the legatees do not declare their property rights in relation to the inheritance from the deceased, then they will no longer be able to receive the benefits previously allocated to them, and the heir is released from the obligation to make payments.

To avoid such nuances, the testator can indicate another successor to the legate. He will fulfill obligations and receive the citizen’s property in the following cases:

• Upon the death of the first heir before the opening of the inheritance.
• His death together with the testator.
• Removal of the successor from receiving a legate.
• The continuator misses the three-year period to obtain a waiver.
• Recognizing him as an unworthy heir.

Requirements for testamentary refusal

The requirements for a testamentary refusal are as follows:

• testamentary refusal is established exclusively in the will;
• the will indicates a specific person who will carry out the will of the testator;
• the legatee-creditor is not an heir;
• the heir is assigned obligations of an exclusively property nature;
• testamentary refusal is the right of the legatee;
• this right is not transferable to other persons;
• the validity period of a testamentary refusal may be for life;
• you can receive a testamentary refusal within three years;
• If one creditor refuses, another creditor may be appointed.

Is it possible to refuse to execute a will?

Article 1160 of the Civil Code gives a positive answer.

Due to the fact that a testamentary refusal is not a separately drawn up document, and the obligation to fulfill it is prescribed directly in the will, the heir, who is at the same time the person charged with these duties, may refuse to fulfill the obligation that burdens him.

In such a situation, the transfer of the obligation to fulfill the wishes of the testator passes to other heirs, who will accept this inheritance in the prescribed manner.

In some situations, the person in whose favor a certain action must be performed may also refuse to accept a testamentary refusal.

The legatee can refuse both in an active form by submitting a written application for acceptance of the refusal, and in a passive form, depending on the essence of the testamentary refusal, by not accepting the thing transferred to him, unwillingness to enter into contracts in his favor, refusal to live in the house. The reluctance to accept refusal must be absolute and unequivocal.

The legislation also provides that the right of claim of legatees under a testamentary legacy expires after the expiration of a three-year period.