How to divide an inheritance between a brother and sister if there is no will? When parents die in a family with children, problems with inheritance soon inevitably arise. And here the question arises, according to what procedure relatives divide the inheritance.
How to properly divide the inheritance between brother and sister without offending anyone? In fact, there are different options available here, which we will discuss below. Thus, property can be divided peacefully, but this does not always happen. And then the dispute between relatives goes into the courtroom.
In this scenario, the duration of the conflict and its outcome will largely depend on the participation of the lawyer. But first, a little theory.
The main contenders for the inheritance of a deceased brother
The list of heirs established by the Civil Code of the Russian Federation includes eight lines of potential heirs to the testator's property.
Each subsequent group of heirs can claim it only if there are no claimants of the group ahead of it or have refused the inheritance due to them. The further the family relationship, the less chance of receiving an inheritance. The most important claimants to a brother’s property included in the inheritance are the people closest to him who are part of the family. If he has a wife and children, and also parents, then they constitute his family circle and are the primary heirs of his brother’s property.
If the children died before the brother himself, but they still have their own descendants, then they will accept the grandfather's inheritance (for them the brother will be the grandfather), instead of their deceased parents, and not receive their inheritance, which they inherited from their grandfather.
The brother could also leave a testamentary order to transfer his inheritance to any person, and this may not necessarily be close relatives. It could have expressed his will to distribute the inheritance among those people whom he favored during his lifetime, while excluding unworthy heirs.
Expert commentary
Shadrin Alexey
Lawyer
When drawing up a will, the share due to disabled persons who were supported by a brother for one year or more until the brother’s departure to another world must be taken into account.
If it is not possible to resolve it peacefully
It happens that time for conversation and discussion of a problem is missed. Then we have to deal with the consequences. If your rights are violated, go to court. This is the last resort; in relations with relatives it is better to resolve everything amicably. Here's what to do if you can't resolve issues peacefully:
- Go for a consultation with a lawyer. Talk about all the intricacies of the issue and hear his opinion.
- Assess whether the subject of the dispute is worth such conflicts. For example, in January 2020, Channel One released a story about owners of micro-shares in apartments. It says that a few square meters in an apartment is not a reason to move in. You can spend several months in court over shares, and end up with nothing.
- Warn your relatives that you are not satisfied with the current state of affairs and you are ready to defend your rights in court. Explain why you are right, appeal to the laws.
- If you are unable to reach an agreement with your relatives, go to court.
- If you want to challenge a will, you will have to prove that the testator at the time of drawing up the document was not able to understand the meaning of his actions or was not in control of his actions, in other words, he was not fully sane. This can be proven with the help of a post-mortem psychological and psychiatric examination, witness testimony, and hospital certificates.
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When can a sister become her brother's heir?
Property that belonged to a brother or sister can be transferred under existing legal conditions. She does not have any preferential rights compared to other heirs. She will inherit either according to her brother’s will or according to the rules established by law.
There are several options for a sister to accept the inheritance of a deceased brother:
- In law. The sister is included in the second line of the list of heirs to the brother's property. It does not matter whether she is related to only one parent or both. According to the law, she can be her brother’s heir only if he does not have priority successors or they refuse his inheritance.
- According to the will. The brother could include his sister in his will, leaving her all his property or allocating a separate share in it along with other persons. If, in addition to the sister, other heirs are included in the will, and the shares of each of them are not indicated, then they will be considered equal for all heirs.
- By the right to allocate a mandatory share. A sister can claim a share in her brother’s inheritance if she was dependent on him for at least a year before his death. She can receive a share of his inheritance, the same as the persons nominated for inheritance.
- The sister's share is the brother's dependent if she is not included in the will. When an inheritance is transferred under a will in which the sister is not indicated, but she is a compulsory heir, then regardless of this, she must be allocated the share due by law. Its size must be no less than half the share due to the heirs who would inherit the brother’s property without a will.
When can second-line representatives claim property?
The second-line persons specified in the legislation of the Civil Code can become legal heirs. However, for this to happen, certain conditions must be properly met. For example, this is possible if the person constituting the act of last will does not have first-degree relatives, who are parents, children or a spouse. You can find out about the procedure for dividing property between first-degree heirs here. In the absence of heirs in the first line, the property is received by representatives of the second line. If the testator is against inheritance by law and has made a will, then he can mention his brothers and sisters as the main heirs. And no one can challenge this will.
The sister can hope to receive the property even if there are other applicants in the first line. As a rule, this is possible if the sister cared for a sick person, or in some other way helped him maintain property in proper form.
Also, the sister may become the main contender for the inheritance. In this case, in any case, she is a contender for the obligatory share, which is allocated from the total mass of the inheritance.
Procedure for accepting brother's inheritance
Registration of the inheritance inherited from the brother into property must take place according to the established procedure. Moreover, it is uniform, regardless of the method of receiving this inheritance.
This procedure involves doing the following:
- Accept the inheritance due. For this purpose, you should contact the notary who opened the inheritance case with an application to enter into inheritance rights. The entire amount of the due inheritance is accepted; partial acceptance is not allowed. The application also indicates the basis for its receipt. The share due to the heir will belong to him from the moment the notary opens the case and accepts his application to join his brother's inheritance.
- Receive a “Certificate of Right to Inheritance”. The notary issues this document after checking the facts confirming the basis for inheritance. You must first pay a fee of 0.3% of the value of the due share of the inheritance. This amount of duty is due to relatives of the first and second priority.
- Register the inheritance in Rosreestr. Only inherited real estate is subject to registration under the new owner.
How to distribute property if there is no will
After death, almost everyone is left with movable or immovable property. Heirs always face the question of how to divide the inheritance without a will?
So, if a person did not leave a will, then the mechanism of inheritance by law comes into play. Within it, there are several queues that are based on the degree of relationship.
Of course, the closest relatives have priority when entering into an inheritance. However, if they are not there, then brothers, sisters, aunts, and uncles have the right to inherit. For this purpose, the Civil Code of the Russian Federation provides for several queues for inheritance.
What to do without a will for inheritance
The property of a deceased person is divided among heirs from the same line in equal proportions. Let's take, for example, the heirs of the first stage.
It includes the parents of the deceased, as well as his wife and children. If the number of first-stage heirs includes 4 people, then the property is divided between them into the appropriate number of parts.
When only one person represents the first priority, then the entire inheritance will go exclusively to him. If there are no heirs among the first priority, then the right appears to siblings and grandparents.
It should be remembered that people from different queues cannot be heirs at the same time. True, there are special cases - hereditary transmission and the right of representation, which we will discuss in a separate article.
Possible legal disputes
Often a conflict arises between heirs over how to divide the inheritance without a will.
Indeed, despite the fact that property is distributed in equal shares, some things have priority in their value. And then a dispute arises about who should get them. Only the court can solve it.
The court can also determine who should receive the property that is not divisible by its nature.
In this case, inheritance legislation provides for the existence of a preemptive right to take possession of property. It can also be designated by a court at the suit of one of the heirs.
In addition, the court may restore the deadlines for contacting a notary for acceptance of an inheritance.
You must provide compelling reasons for this.:
- disease;
- lack of information about the death of a relative;
- long business trip.
The court also considers disputes regarding deprivation of the right to inheritance. Here too, the circle of applicants for property may undergo changes.
How to register the right to inheritance without a will
For this process, the legislation allocates several stages. First of all, you should contact a notary with all documents confirming your claims to property. This must be done within six months from the date of death of the relative.
When there are no comments from the notary on the submitted documents, then you need to wait for the issuance of a certificate of inheritance.
The state duty for its issuance ranges from 0.3 to 0.6 of the value of the property. The notary will always tell you the specific figure, as well as payment details.
The procedure for registering an inheritance does not end with the receipt of the certificate. If it concerns an apartment (house), a plot of land or a car, then you need to re-register the documents for them in your name.
When and who should apply?
You can submit an application for consent to accept the inheritance by law within 6 months after the death of your brother. After missing this period, the possibility of entering into inheritance rights is permissible only if there are good reasons by a court decision.
It is customary to submit an application with a package of documents in person to a notary office. Application submission via mail is permitted. In this case, the signature on the application must be confirmed by a notary located in the place from which the application was sent.
Expert commentary
Kolesnikova Anna
Lawyer
On behalf of a potential heir, his representative can submit an application. To do this, the heir will need to draw up a power of attorney for him, which will be certified by any notary. A copy of the power of attorney must be attached to the opened inheritance file.
How to join?
Accepting an inheritance is a standard procedure that looks almost the same in all cases. Both property and rights with the responsibilities of a relative are inherited. That is, along with the property, you can also inherit the debts of the deceased, which can be, for example, existing active loans. It is important that the need to repay them does not depend on whether you knew about their existence when accepting the inheritance.
The process of obtaining property can be divided into several stages:
- Opening an inheritance case with a notary
- Distribution of property
- Entry into inheritance
- Registration of inherited property
Information!
The deadline for entering into an inheritance is also standard, namely six months from the date of opening of the inheritance. The opening date is considered to be the day of death of the testator or the day on which he was declared dead.
That is, when the appropriate decision is made by the court. In this case, the entry into inheritance itself will take place in direct dependence on one important factor - the presence or absence of a will.
Actual acceptance of inheritance
This way of legally accepting a brother’s property is considered to be formal acceptance. It should be used when the sister lived separately from her brother, and she had no relation to his property during his life and after his death.
If the sister took part in the management of this property, including the following actions:
- paid bills for housing and communal services, including paying off her brother’s debts for these services;
- monitored the safety of property;
- provided its repairs from personal funds;
- actually lived in a residential property, etc., then it is considered that she actually accepted it.
She must prove all the facts of such acceptance in court by presenting payment documents, certificates, and witness testimony. To do this, she needs to apply there with a statement in which she needs to state a request to recognize her as her brother’s actual heir. If in court the other heirs do not refute the fact that the sister accepted the property of the deceased brother, then the court will decide to recognize her as an heir along with other persons claiming it.
Important! Based on a court decision, she has the right to re-register her brother’s real estate in her name or receive a document of title to part of this real estate.
After the death of parents
In this case, both brother and sister act as first-degree heirs.
They are the children of the deceased, therefore, receiving an inheritance will be based on Article 1142 of the Civil Code of the Russian Federation. To confirm their relationship, each of them provides:
- Passport of the deceased parent and death certificate (original or copy).
- Your passport.
- A birth certificate that clearly lists the testator as the parent.
The best option is when the passport data of the deceased person matches the data in the provided birth certificate.
If inaccuracies are identified, relationship can be proven as follows:
| What is the inaccuracy? | How to prove |
| An error in the spelling of the parent's last name, first name or patronymic on the birth certificate |
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| The parent's last name on the passport does not completely match the birth certificate | Present documents that show the chain of last name changes. For example, a deceased mother changed her last name during divorce/marriage, and then changed it again to a third one... In this case, we need all certificates of marriage/divorce or archival extracts from the registry office if the heirs cannot find the originals. |
Reference: You should carefully weigh the consequences of applying Article 58 of the Federal Law N 143-FZ of November 15, 1997 “On acts of civil status” on changing the name, surname, patronymic. This makes it difficult to prove relationship.
A more difficult option is the situation when the brother and sister are half-siblings. In this case, it all depends on which parent died. In the event of the death of a common parent, both children will be called upon to inherit. If the stepfather/stepmother dies, then the step-son/daughter is excluded from inheritance.
Important: Brother and sister are called upon to inherit on equal terms (unless one of them is recognized as an unworthy heir).
In what cases is a sister deprived of inheritance rights?
The sister has no right to claim the inheritance after the death of her brother on any of the above grounds if she is recognized as an unworthy heir.
A heir is declared unworthy in court on the basis of a claim by an interested person if such a successor:
- Did not fulfill his obligations to pay alimony for the maintenance of the testator (according to Article 93 of the Family Code of the Russian Federation, the court may oblige an adult able-bodied sister to pay alimony to her minor brother in need if he does not receive such help from his parents, or to an adult disabled person if it is impossible its maintenance by children, spouse or parents).
- Committed a crime or other unlawful act directed against the testator, his heirs or the last will, while pursuing selfish goals (increasing the inheritance due to himself or another person).
Distribution of property
After the opening of the inheritance, six months must pass, as mentioned above - they will be needed so that the notary can notify all the relatives of the deceased. Only after this period has expired will he be able to formalize the inheritance. Then the distribution of inherited property between relatives will begin. It is at this stage that the presence of a will will play a role.
If the deceased decided to take care of his property in advance and draw up a will, then the process of distribution of property will be quite simple - each of the relatives will receive exactly the share indicated in the will. This is simpler and fairer than distributing the deceased’s belongings in order of priority, but sometimes causes conflicts between potential heirs.
If a will has not been drawn up in advance, then the registration of the inheritance, as well as its distribution, will be carried out in the established order:
- First of all. The closest relatives are the spouse of the deceased, parents or children;
- Second stage. Brothers or sisters, parents of father and mother;
- Third stage. Uncles, aunts who are sisters or brothers of parents, cousins or brothers;
- Fourth stage. This line is usually represented by third-degree relatives, including great-grandparents.
It is worth noting separately that if with the fifth and sixth stages everything is just as clear, there are the fourth and fifth generations respectively (blood relatives), then the seventh stage stands apart. Its most important difference from all the others is that there is no blood connection at all, that is, it can include such relatives as: stepfather, stepmother, stepdaughters and others. If there are no heirs, then the property is declared escheat after a certain period and transferred into ownership of the state.
In addition to all of the above, you should also not forget about the disabled dependents of the deceased. They also have a guaranteed share in the general order of inheritance. More precise nuances on this issue are indicated in the compulsory right of inheritance, since there are conditions that must be met in this case.
Warning
Please note that even if you are indicated in the inheritance as the recipient of the property, other heirs may well be able to challenge your share. For example, they will try to prove the deceased’s incompetence when drawing up a will. If you expect serious resistance, then enlist the help of a lawyer.
Order of succession by law
The law defined gradations of family relationships - from the closest to the least close. And he lined up the line of heirs.
According to this order...
- The first to inherit are the parents and children, as well as the husband or wife - the closest relatives.
- The second are brothers and sisters, recognized as close as grandparents.
So, heirs of the second stage - brothers and sisters - can inherit only if the heirs of the first stage are absent, deprived of inheritance or refused to inherit. If the heirs of the first stage are alive, healthy and full of enthusiasm to accept the inheritance, the brother or sister can only come to terms with the existing state of affairs.
Do cousins inherit?
Cousins of the deceased began to be counted as heirs only in 2001. Until this time, they could not lay claim to the deceased’s assets at all. However, even now they are not considered to be full heirs, but can only assume rights by right of representation.
About cousins it is said in Art. 1144 of the Civil Code of the Russian Federation. This article is dedicated to the heirs of the third stage. These include the testator's aunts and uncles. If one of them dies before the opening of the inheritance, the right passes to their descendants - the deceased's cousins.
