How to make a will and to properly dispose of their property

Life is fleeting and unpredictable. Every person at least once faced with inheritance. At least, when it becomes the testator.

According to the Federal Notary Chamber, issued annually over three million of certificates of right to inheritance. But in the period from 2007 to 2013 it was issued only 700,000 wills. This means that the order is only every fourth person leaves the event of his death.

Why? The reasons are at least two. The first - to think about death is unpleasant. Fears and superstitions prevent people from rational approach to the issue of succession.

Reason number two - legal illiteracy. Many simply do not know what is the will from a legal point of view, confuse it with dedication and rent. In addition, it is troublesome - you need to go to a notary, to pay the large sum of money. Perhaps relatives themselves somehow agree.

But, according to court statistics, about 7% of all civil cases accounted for by inheritance disputes. Delozh property of the deceased often quarrel family and destroys people's lives. To avoid problems in the future can help to make a will in the present.

What is the last will and testament

In Russia, the inheritance is for two reasons - the law and under the will - and is regulated by Title V of the third part of the Civil Code.

Testament - a disposal of the property in case of death.

In this case, this order should be:

• personal (Parts 3 and 4 of Article 1118 of the Civil Code). Making a will through a representative is not allowed. You can not make one a testament to two. A will signed by his own hand. Exception: when a person is seriously ill, you can resort to the help of rukoprikladchika about what the document is a special mark.
• free (Article 1119 of the Civil Code). The principle of freedom of making a will is multifaceted. You can dispose of his property as you like (and not only to those who already own but also those that may be acquired in the future). Can without giving reasons to disinherit. You can change and cancel the will. But the main thing - you do not have anyone else to report their decisions and the notary has no right to violate the secrecy of the will (Article 1123 of the Civil Code).
• competent (Part 2 of Article 1118 of the Civil Code). A will can only make a fully capable citizen - one who is 18 years of age (or 16 years - in the case of marriage or emancipation) and who give a report of his actions.

The main difference between the inheritance under the will of inheritance by law that you can distribute the inheritance in all proportions, avoiding inheritance line. They are under the law of eight. The heirs of the first stage are children, spouse and parents. If a will is not present, then the property will be divided between them in equal shares. The will can also unsubscribe to all grand-niece or even a stranger person or entity. In this case, you can distribute the property as consider fair: this - an apartment, this - the car, and this - a flower pot.

testamentary freedom is limited only by the rules on the compulsory share.

compulsory portion

This is guaranteed by law at least in the inheritance that should be highlighted mandatory (required) heirs.

The necessary heirs are:

• disabled or minor children, and disabled spouses and parents;
• other disabled persons who were dependents of the deceased.

To determine the size compulsory share, the sum value of all the ancestral property, including objects life, you need to divide by the number of heirs who would be called to the Intestate Succession. A second legitimate share there is some mandatory.

For example, the value of the asset hereditary weight - one million rubles (for ease of understanding, we assume in terms of money). By law, the four deceased heir. Every one of them to 250 000 rubles. Mandatory share in this case is 125,000 rubles.

It will have to pay, even if the desired heir is not mentioned in the will or deprived of his inheritance. Reduce the size compulsory share or deny its award may be only the court (part 4 of Article 1149 of the Civil Code).

Not a dedication and not rent

According to the legal nature of the will it is an urgent one-sided deal. This means that you do not need contractors. Opinions heirs ask optionally, their signatures are not required, and the legal framework of this transaction movement begins only at the moment of opening the inheritance - the time of death of the testator (Article 1113 of the Civil RF Code).

Remember! Dispose of the property in case of death is possible only through a will.

According to part 3 of article 572 of the Civil Code, a contract providing for transfer of a gift to bestow upon the donor's death is negligible. If the grandmother "gave" her grandson an apartment, but life is not extended a right of ownership on it, worthless such a gift. Even if there is a written contract of donation. After the death of her grandmother the other heirs can claim the rights to the apartment.

Also, there will, where a specific person is called the heir of a particular property. At the same time it receives the specified property for use even during the testator's life in return for lifetime support of the latter. The same example: the grandmother was a testament to his grandson, he settled down in her apartment, and the rest of her days caring for her. But de jure such transaction is a two-way, and the de facto reduced to the contract life annuity of a dependent. And if after the death of her grandmother the other heirs to go to court, he may cancel a will, guided by part 2 of article 170 of the Civil Code of sham transactions.

How to make a will

Testament is a bargain in a strict form. It should be:

• composed in writing (specifying preparation time and place);
• signed by his own hand;
• notarized.

But, as in any rule, there may be a few exceptions. So, already I mentioned rukoprikladchike. A person who is entitled to sign for the testator, if the objective reasons are not able to do it. Rukoprikladchik - capable, competent, completely extraneous, disinterested person is not out of the circle of heirs.

In addition, the law provides for cases in which a will can not certify the notary, but, for example, the ship's captain, who is on a long voyage, or the head of the medical institution. Such disposition equal to the notary (Article 1127 of the Civil Code), but not identical to them. If, having made a notarial will, you are in some kind of emergency circumstances and decided to change everything all act is a document drawn up by a notary. Despite the rule of "last will and testament, drawn up later cancels the previous" (more on this will be discussed below).

Open or closed will

The general design features open wills It happens so. The notary upon request of his project (two copies). At the same time, if you dispose of the existing property, no harm will be to provide the title documents (certificate of ownership of real estate, PTAs, etc.).

Having examined the project, you sign the will in the presence of a notary public, but if you want - and even witnesses. They will read the text and put their signatures. As rukoprikladchik, witnesses should be legally competent and financially disinterested.

After that, the notary does on both copies of the document of identification label, puts his signature and seal. One copy of the will remains in the notary's office, and the second is given to the hands of the testator. But, if you want, the notary can take custody of the two documents.

On the will must indicate the place and date of certification. Without them, it is not valid.

Gradually begin to apply legislative innovations, according to which a written document can be drawn up to make a video of his last will. Also allowed to capture on video notary probate certificate procedure.

Text closed will until the opening of the inheritance should not be known to anyone except the testator (Article 1126 of the Civil Code). You yourself compose the document. By hand or on your computer - it does not matter, the main thing - your own signature (no rukoprikladchika). Then a will pass in a sealed envelope notary two witnesses. Witnesses painted on the envelope, and then the notary puts the will in a second envelope, seal it and makes a sign of identification. The document is kept by the notary, you have on hand will be the only evidence of the adoption of a closed testament.

But as heirs learn about the will? After all, you can not talk about his drawing. When the heirs of the turn to the notary office at the place of opening the inheritance (this is the last place of residence of the testator or, if unknown, the location of the main part of the property - Article 1115 of the Civil Code), the notary will inform them about the presence of the closed testament, and then in the presence of two witnesses under the protocol will open and read his.

Disinheritance

Heirs - a person specified in the law or the will as successors of the testator. In his will without regard to family ties can be assigned to any heir: a citizen, legal person, The Russian Federation, its subjects, municipalities, foreign states or international organization.

Also, the testator shall have the right to disinherit those to whom it is owed under the law, but who does not deserve it. There are two ways.

1. Just list the persons whom you do not want to see among the heirs. Then they will receive nothing (except for the mandatory share).
2. Not to mention someone in a will. However, in this case, unspecified in the will of the heir under the law can apply to property that is not covered by the will.

Example 1. My grandmother has an apartment and a dacha. It is a testament, which explicitly states that all of its property must move the grandson and son of the inheritance she denies. If able-bodied son, he will not get anything.

Example 2. Grandmother pointed out in the will, which leaves the apartment to her grandson, and about his son and giving forgot to mention. Then depart cottage was the son, as by law it is the successor of the first stage.

Example 3. If my grandmother wrote in his will: apartment - grandson, son - disinherit, while about giving back It does not mention, the suburban real estate in the absence of other legal heirs will depart the state.

According to paragraph 1 of Article 1117 of the Civil Code, will not inherit either by law or by will slayer rule. They are citizens who commit or attempt to commit a crime for the sake of the inheritance, the parents deprived of their rights, as well as children, the elderly neglect the duty to maintain their parents.

Unworthy heir recognized by the court at the request of the person concerned. Going back to the example number two, such a person is a grandchild. Him in court must prove that the father had not cared for his mother, and not worthy to inherit the country.

However, the grandmother can forgive the prodigal son and to include it in his will. Even if he did not care about her, even if hurt and threatened, even if it has documentary evidence. The law allows.

The refusal of an inheritance

Legacy - a collection belonging to the testator's property and non-property rights and duties. These rights and obligations shall be transferred to the heirs in the way of universal succession, ie edinomomentno and completely.

The adoption of the inheritance on condition or with the proviso is not allowed.

Accept the inheritance - means to receive all the rights and to take all the obligations within their stake. If used together with the flat of my grandmother "bequeathed" to you public debt, would have to pay or to refuse the inheritance.

According to article 1157 of the Civil Code, the heir may refuse the inheritance in favor of other persons from the legal heirs or by will (not deprived of the inheritance).

If you do not know whom to put the blame on the head of wealth, may be omitted in favor of someone making a failure. Then, in accordance with Article 1161 of the Civil Code, there will be an increment of hereditary shares.

But change your mind (at first refused the inheritance, then decided to take) is impossible. But rethink many times can the testator.

Change and Cancellation of wills

One of the reasons why people do not make a will - fear of irreversible effects. Many people think that if they drew up the will, then nothing can be changed.

According to paragraph 1 of Article 1130 of the Civil Code, the testator shall have the right to cancel or change they composed a will at any time after its commission, without specifying the reasons for its cancellation or change.

Change and Cancellation - two different legal acts. In the first case overwritten or appended separate positions. For this is a new document which clarifies and complemented previous orders. For example, still grandmother bequeathed her grandson an apartment, but the washing machine decides to give a neighbor. The changes must be notarised. Simple additional notes and corrections on a copy kept by the testator shall have no legal force. Inheritance will be carried out on the copy of the will, which was a notary.

If you cancel the old testament completely loses power. The rule: follow the will cancel the former, even if there was no direct reference to it. To cancel a will need to bring in new notary or just to write a statement about the cancellation and no longer be any document.

Invalidity of a will

Testament creates rights and obligations after the opening of the inheritance. But the composition of his person is no longer alive - it is impossible to ask what exactly he had in mind, whether conscious of their actions. Therefore, article 1131 of the Civil Code provides for the possibility of recognition of the will invalid.

Depending on the will of invalidity may be voidable or void.

To challenge the will can only be in court.

According to paragraph 2 of Article 1131 of the Civil Code of the Russian Federation, a will may be declared invalid by the court on the claim of the person whose rights or lawful interests are violated this will. To challenge a will prior to the opening of the inheritance is not allowed.

You can go to court if the will contains any illegal orders or it is made in order to "cover" the other deal. Lawyers call this the content of defects.

It is also a testament may be invalidated (in whole or in part) if the heirs have reason to believe that the testator did not give a report of his actions and could not control them. For example, if you know that my grandmother during the drafting of wills taking potent drugs.

Referring to the claim for recognition of the will invalid, you must provide evidence (documents, witness statements, and so on). The court will consider all the circumstances, resort to the interpretation of the will (Article 1131 of the Civil Code) and make a decision.

Paltry wills - those, the preparation of which has not been followed form required by law. For example, if Grandma was just a document at home and took him to the notary. Well-formed document containing some clerical errors in the text, will operate under the condition that these errors do not prevent understanding of the will of the testator. In addition, it is insignificant testament, committed fully incapacitated person or through a representative.

special orders

Question about the inheritance - is not only a question about this property. Of course, the will mainly constitute to decide who to give shelter, land or money. But in the succession mass can enter and intangible benefits. Therefore, the law makes it possible to make a special testamentary dispositions.

These include:

• substitutionary bequest (Part 2 of Article 1121 of the Civil Code). This choice of "spare" heir in case the person to whom you intend to bequeath everything, dies before the opening of the inheritance.
• testamentary gift (Article 1137 of the Civil Code). This laying on of heirs property obligations to third parties. For example, the grandmother gives her son an apartment, but indicates that it may live her granddaughter until they marry.
• imposition (Article 1139 of the Civil Code). This laying on heirs duty to do something good and useful. This may be the action as a property (to make repairs at the shelter, buy a pram and a child with a disability etc.) and non-material (make bequests art galleries free input).
• testamentary (Article 1134 of the Civil Code). This selection executor. Executor of the will - a very important figure. It not only keeps track of the property until its transfer to the heirs, but also to follow instructions about the funeral. To many people, it is important, where and how will perpetuate the memory of them.

On the verge of change

Life is fleeting and unpredictable, and the will can be compared with an airbag in a car. In a collision of interests of heirs, it can save a family from destruction.

Summing up, it should be noted that the law on inheritance is on the threshold of serious changes. In the State Duma considered a bill that could revolutionize the inheritance by will.

In particular, it is proposed to allow spouses to be joint last will and testament. It is planned to change the order of succession at the same time (in one day) the death of the husband and wife. But perhaps the most important innovation is the bill - it is an opportunity to enter into direct contracts with potential successors. In this case, change the legal nature of the will, it is no longer a one-way deal.

What will the regulatory innovations, time will tell, but for now let's talk about the will as such. Do I need it be? Do you plan in advance to dispose of their property? Share your thoughts and experiences in the comments.