Inheritance is a complex process. Incapacitated citizens are especially not protected in this matter. They cannot protect their interests on their own. At the same time, regardless of the basis of incapacity, the question of whether a person incapacitated can enter into an inheritance does not arise - he definitely can. An incompetent person, like other heirs, has the right to inherit any property, including real estate. However, such inheritance has its own characteristics. How does an incapacitated person receive an inheritance?
The right to inherit by law and will: features and norms
What is inheritance and what can you get after the death of a loved one? Entry into inheritance is a procedure that is aimed at legally formalizing the transfer of property from a deceased citizen to his relatives or successors under a will. The testator's relatives can receive everything that belonged to the giver as property.
The main objects of inheritance are an apartment, a house, a car, and a plot of land. Material assets, personal belongings, securities and jewelry are also subject to inheritance.
According to the law, only relatives of the deceased can become heirs. His children, parents and spouse are the first priority successors among whom the inheritance mass will be divided. Property is most often divided equally, but in some situations the wife may claim a larger share. Read: “How the inheritance is divided between the spouse and children.”
If there are no priority recipients, then, on the basis of Article 1142 of the Civil Code of the Russian Federation, the next circle of relatives is called upon to inherit - the donor’s siblings. There are seven orders in total, the rights of inheritance between which are transferred in order of priority. The reason for changing the circle of heirs is the refusal or absence of candidates of the previous order.
The circle of heirs can be determined not only on the basis of legal order, but also by the personal decision of the testator. According to Article 1118 of the Civil Code, any citizen has the right to independently determine his heirs by drawing up a will during his lifetime.
According to the will, any persons named in the document can be called to inherit. In this case, it is permissible to deprive one of the relatives of the right of inheritance by will. It is important to know that inheritance by an incapacitated person cannot be limited. We will talk about this below.
It is necessary to enter into an inheritance from a notary or actually accept property within six months from the date of death of the testator. After this period, the heir is not deprived of his right, however, he will be able to enter only through the court, filing a claim to restore rights to the inheritance.
The opening of the inheritance takes place at the place of last residence of the testator. All successors and their representatives must contact the local notary authority within the established time frame and provide a package of documents, as well as write an application for accession. If the giver does not have a place of permanent residence, the opening of the inheritance is carried out at the location of the property left behind.
What types of disabilities are there?
The law recognizes several types of incapacity:
- age (Article 28 of the Civil Code of the Russian Federation). Any person under the age of eighteen is considered legally incompetent. Legal capacity can be acquired earlier if a person marries before the age of 18. And it can also be canceled if the marriage is declared invalid.
- Due to a mental disorder (Article 30 of the Civil Code of the Russian Federation). In this case, a person is recognized as incompetent if doctors and the court determine that he cannot adequately perceive reality and be responsible for his actions. Guardianship is established over a citizen who has lost his legal capacity.
Attention! A person has the full range of his rights and obligations until his incapacity is established by a court and can dispose of his property to the fullest extent.
Video explaining what is considered incapacity and what legal norms govern the process of declaring a person incompetent:
Rights of persons incapacitated upon entering into inheritance
What is the right to inheritance of an incapacitated person and what features do you need to know about? A disabled or incompetent citizen is a person who, due to certain restrictions, does not have the opportunity to lead an independent and independent life. As a rule, such people have limitations due to health or due to a certain age.
Legally incompetent heirs include:
- Relatives of the deceased who have a disability confirmed by medical documents.
- Relatives of the deceased who have reached retirement age and are receiving a pension.
- Heirs of the giver who have not reached the age of majority.
Successors who receive a pension from the state but have not reached retirement age are not considered incompetent heirs.
In order to obtain certain rights to enter into an inheritance as an incapacitated citizen, it is necessary to establish the fact of dependence on the testator - dependency. A disabled heir who lived with the donor in the same territory for a period of at least one year and was financially dependent on him has the right to be allocated a compulsory share, regardless of whether the incapacitated successor is by law or by will.
The size of the obligatory share by law is 50% of the part of the property that could go to the recipient upon inheritance by law. The court may reduce, increase or cancel the allocation of such a share at the request of representatives of the disabled person or from other heirs.
When considering an inheritance case in court, all aspects are taken into account: relationships and dependence on the testator, living conditions and the financial condition of the disabled person. If an incompetent heir has sufficient living conditions and at the same time claims a small share of the inheritance, then the court may completely cancel the right of inheritance for him.
Expert commentary
Karpova Ekaterina Vasilievna
In 2006 she graduated from Amur State University with a degree in jurisprudence. 2006-2013 — Arbitration Court of the Amur Region. 2013 to present - lawyer at the Amur Regional Oncology Center.
In accordance with Article 1154 of the Civil Code of the Russian Federation, a citizen must accept the inheritance within six months after the death of the testator. The rights of incapacitated citizens are declared by a legal representative or guardian. The incapacitated person often finds himself in a difficult situation. Due to age, illness or mental state, it cannot find out in a timely manner about the death of a relative and enter into an inheritance for the following reasons:
- long stay in a medical facility;
- deliberate concealment from him of information about the arisen right to inheritance.
In this way, unscrupulous heirs try to circumvent the interests of the most vulnerable claimants to property. In this case, the legal representative or guardian on behalf of the ward may file a claim to restore the deadline for accepting the inheritance and recognizing the applicant as having accepted it.
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The law clearly establishes cases in which a guardian can dispose of the real estate of his ward:
- In the event that this property may be subject to foreclosure for the debts of the ward;
- In the case of an exchange of residential premises in connection with a move, exchange or sale of a house, apartment (other real estate), if this is primarily beneficial to the ward, and only in exceptional cases (payment for expensive treatment, etc.). (Article 20 of the Federal Law “On Guardianship and Trusteeship”)
In addition, it should be taken into account that the law limits the right of the guardian to enter into transactions in his own favor: the guardian cannot sell the house or apartment of the ward either to himself, or to his spouse, or to his close relatives (Article 37 of the Civil Code of the Russian Federation). Thus, only his guardian can sell an apartment (house, share) of an incompetent citizen, with the prior permission of the guardianship and trusteeship authorities, and only in certain cases, acting in the interests of the incompetent person.
Can a legally incompetent person inherit an inheritance on his own?
So, does an incapacitated heir have the right to inherit? If a citizen is declared disabled for a certain reason, then this fact does not cancel his right to receive an inheritance after the death of his relative or loved one. There are three types of inheritance for a disabled person:
- Become the heir of a relative and receive an inheritance as a legal successor.
- Receive the property of the giver on the basis of a will.
- Take advantage of the right to an obligatory share or join as a dependent of the deceased.
Incapacitated children, parents or spouses have the right to inheritance by law and are given first priority.
Under a will, you can receive an inheritance if the testator has designated a disabled person as his heir. In the absence of rights under the law and a will, an incompetent citizen has the right to inherit as a relative of the first priority, excluded from the list of successors by the will, or as a dependent of the deceased.
An ordinary heir has the right to formalize an inheritance either independently or through his representative, having issued a power of attorney for this purpose. A legally incapacitated citizen does not have the ability to make decisions independently, including formalizing inheritance.
Ensuring decent living conditions and protecting the rights of the incapacitated is entrusted to official representatives. Instead of minor children, their parents or guardians should deal with the inheritance under the control of the guardianship and trusteeship authorities. Government agencies are responsible for representing the interests of children in state institutions.
The same conditions of inheritance are provided for heirs who have reached the age of majority but are recognized as disabled. His guardians, medical workers or directors of boarding schools can register an inheritance in place of an incapacitated person.
General provisions
The possibility of inheritance is not related to the amount of legal capacity of a person.
According to federal law, an heir can be an incapacitated person, as well as a minor and a citizen with limited legal capacity.
The law protects the interests of the mentioned category of heirs, guaranteeing them the rights to:
- acquisition of a mandatory share in the inheritance;
- inheriting the property of your guardian;
- independent taking possession of property;
- division and renunciation of inheritance.
According to the terms of the will, only those who are able to evaluate their own decisions can dispose of their property.
If the testator has lost legal capacity after the written expression of will, the will does not lose legal force. If any of the participants in the inheritance process have any claims, they have the right to challenge the contents of the document in court.
Incapacitated citizens can also be testators, but not to the full extent. The legal basis for inheritance in this case is death, and not their expression of will.
These citizens, for obvious reasons, cannot express their will, therefore the inheritance of the incapacitated person after death is transferred to the applicants not by will, but by law, according to a strict priority scheme.
Registration of inheritance
Now you know whether the incapacitated person has the right to inheritance. How to format an introduction correctly and are there any special features?
There are two ways to accept inherited property: through a notary’s office or actually. The first method is most often used, since it allows you to fully formalize inheritance rights and avoid possible difficulties in the future.
If the incapacitated person has become an heir, then his official representative must contact the local notary office and perform a series of actions, which includes:
- Drawing up an application for inheritance.
- Collection and provision of documents for the notary.
- Obtaining a certificate of inheritance.
- Registration of received property.
Registration of an inheritance takes six months and after this period the representative of the successor will receive a certificate of inheritance. One of the differences from accepting an inheritance by an ordinary recipient: an incapacitated citizen is exempt from paying tax for issuing a certificate if he is a minor or has guardianship established over him.
What documents are needed for a notary when opening an inheritance? For a lawyer you need to prepare:
- Death certificate of the testator.
- Certificate of his last place of registration.
- An extract on the removal of the testator from registration at the place of residence.
- A will for an incapacitated citizen (if there is one).
- Medical documents confirming incapacity (if there is a disability).
- Resolution on guardianship or trusteeship, adoption (to confirm the authority of the representative).
Documents are also required to establish the relationship between the incapacitated person and the giver or to indicate the fact of dependency. Such documents may include a birth or marriage certificate, a guardianship or adoption order.
Together with the main documents determining the opening of the inheritance and the rights of the incapacitated successor, it is necessary to prepare papers for the property that will be transferred to the recipient. It is important to describe in the application to the notary all the property that is included in the inheritance estate and attach documents about the property to the lawyer.
If something from the property of the deceased was missed, then later it can be included in the inheritance mass by filing a claim in court to establish an inheritance.
After reviewing the documents and receiving a certificate of inheritance, the representative of the incapacitated citizen can contact the registration authorities to register the property as the property of his ward.
Inheritance by disabled dependents
The question of whether an incapacitated disabled person can be an heir and the conditions of inheritance is addressed in Art. 1148 of the Civil Code of the Russian Federation. This category of citizens called for inheritance is divided into two groups:
- Heirs belonging to the second to seventh lines. They receive the inheritance together and on an equal basis with the heirs of these queues.
- Heirs of the eighth stage. They will be able to become sole owners of property only if there are no applicants belonging to other categories.
Disabled dependents are a special category of heirs. Their rights of inheritance are not conditioned by blood relationship or marital ties with the deceased, and are therefore unilateral. This means that the breadwinner who cares for the disabled testator cannot be his legal heir.
When a citizen, declared incompetent by a court decision, is declared an heir (Article 29 of the Civil Code of the Russian Federation), measures for accepting the inherited property are assigned to his guardian (Article 32). According to Art. 37, these actions do not need to obtain permission from the guardianship and trusteeship authorities, because accepting an inheritance is not associated with a decrease in the property of an incompetent person.
As in other cases, within 6 months the guardian must submit an application to the notary to accept the inheritance. You should also bring a package of documents:
- civil passport of the ward;
- birth/marriage certificates;
- death certificate of the testator;
- house register or certificate of residence of the deceased at a given address;
- when inheriting land:
- title documents; certificate of registration of ownership;
- extract from the state real estate cadastre;
- administration resolution on the allocation of land.
When entering into an inheritance, incapacitated citizens are exempt from paying state duty.
