Obtaining an inheritance does not always follow general and well-known rules. Sometimes the testator can make a so-called closed will. What it is? What is it for? What secrets does this document hold in itself? A similar concept is still relatively new. It appeared in Russia not so long ago. Previously, it was even called "mystical." True, this type of wills has a huge number of features both in compilation and in publicity. If you look at all this, there will be nothing difficult. Otherwise, the testament may be declared invalid. More precisely, if the rules established by the legislation of Russia are violated.
Definition
To begin with: what is a closed testament? This term has a clear definition. This is the last will of the testator, expressed in writing. It reflects the rules for the separation of inherited property in accordance with the wishes of the owner. But the closed will has its own characteristics.
Namely: before its discovery, no one except the testator knows the text thereof. We can say that this document remains in complete secrecy for everyone. Even the notary public, who will announce the text in the future, is not aware of what the testator wrote. True, this document should not contradict generally accepted laws. The design and execution of such a will differs from generally accepted standards. What features are there in this regard?
Mandatory heirs
There is such a thing as mandatory heirs. They are entitled to a share of the estate of the testator, unless they were deemed unworthy. This is an extremely rare occurrence. Therefore, it is worth knowing who has the right to an obligatory share of the property of the deceased. These citizens must not be forgotten in the preparation of a closed will. Otherwise, it will be declared invalid. Mandatory heirs include the disabled:
- parents
- spouses;
- children
- dependents who were in the care of the owner of the property.
These categories of citizens are entitled to an obligatory share of the inheritance. And they should not be forgotten. So that in the future there would be no problems, a closed will must be with information specifying the shares assigned to the obligatory heirs.
Witnesses
What features will have to be observed and taken into account when preparing a document? Everything is not as simple as it seems. After all, a testament of a closed type is a secret document. Nobody knows about its contents before the autopsy. Please note that this option of transferring property to heirs is not prohibited. Moreover, the main nuances are indicated in the Civil Code of the Russian Federation. More specifically, in article 1126.
According to this law, when preparing a closed will, witnesses must be next to the testator. That is, those who can confirm the fact of the authenticity of the document. They, like everyone else, should not be aware of the text of the will. Without witnesses, registration of such a form of transfer of property is impossible.
Who can witness
What else do you need to pay attention to? Not all citizens can act as witnesses in the preparation of a closed will. In general, the heirs are not entitled to participate in the process by law. Bans also apply to their close relatives (parents, wives / husbands, children, and so on).
All this is due to personal status and interest. That is, any person who has no relation to the property of the testator can act as a witness.And may not be interested in him.
A closed will is drawn up in the presence of two witnesses. In the same way as receiving a document by a notary. One of those present has the right to refuse to sign a will. But this does not cancel the process of making one. Just a notary public will put the appropriate entry on the envelope in which the testament document is sealed.
Envelopes
What features of a closed testament still need to know? This document, after compilation, must be sealed in an envelope and handed over to a notary. Moreover, an important point here is the affixing of signatures by witnesses. What does it mean?
After the testator draws up the text of the will, it is necessary to seal it in the presence of witnesses and a notary. Previously, the first put their signatures on it to confirm the fact of the authenticity of the document.
Next, an already signed envelope is sealed again. And on it the notary takes notes with information about the testator and witnesses. It also indicates that the testator is aware of clause 2 of article 1149 of the Civil Code. It states that property not bequeathed to anyone will be divided between applicants for the mandatory part of the inheritance, and even if this reduces the statutory amount due to the heirs. In case of insufficient size of the non-promised part of the property, mandatory shares will be allocated taking into account thereof.
After acquaintance with this feature, an appropriate entry is made on the envelope, then it is sealed completely. And the notary issues a certificate to the owner of the property, which indicates that the closed will has been accepted. Plus a process protocol is compiled.
Who draws up
On this, all the features of the process do not end there. The thing is that in Russia every citizen has the right to draw up such a document. According to the laws and regulations in force in the country, a closed will must be drawn up by an adult or a person of 16 years of age who has achieved the so-called emancipation. Also, a citizen must be competent and have an identity card (any, usually a passport).
If the will was taken at the time of the legal capacity of the person, and then the person has lost this trait, cancellation does not occur. In particular, if there is evidence that the testator drew up the text of a closed will, being in adequate condition. Otherwise (when the opposite is proved), the document is invalidated. But such cases almost never occur in practice.
By hand
The main feature that can play a cruel joke with a testament of a closed type is the order in which it is written. The thing is that such a document should be completely written by hand. The use of any printing devices is unacceptable.
By the way, in which case handwritten text will help establish the fact of the authenticity of the document. Most likely, it is for this reason that the testator is obliged to write the text of the will with his own hand, and then sign it. If it turns out that this condition is not saved, the document is invalidated. Indeed, even in the law (in article 1126 of the Civil Code) this feature is indicated.
Cancel and change
It is not difficult to guess that the law does not prohibit canceling a will, as well as changing it. This right is regulated by the Civil Code of the Russian Federation, article 1130. How can I cancel or change the conditions specified in the text of an already drawn up document?
The testator is not limited in time. He has every right to cancel or change the text of the document at any time after its adoption. Moreover, in the case of the secret type, it is necessary for the notary to bring a new testament in an envelope. All other conditions for compiling thereof must be observed. That is, witnesses are needed for adoption. The testator must not disclose the reasons and motives for his actions.He has such a right, but no one is forcing it.
Also, according to Art. 1130 of the Civil Code of the Russian Federation, a new will, if it does not contradict the former, still cancels the effect of the "old copy". In cases of contradiction, the “new wording” is taken into account, and the old will will be partially revoked. And it can no longer be restored, only if you rewrite the entire document as a whole.
Is a closed will (new) invalid? Distribution of inheritance will occur according to an earlier form of document. Like this? According to the old will, which the testator tried to cancel or change.
Announcement
The features of the process do not end there. The announcement of the document also has its own rules. They must be observed without fail.
The opening and disclosure of a closed will is made by a notary in the presence of witnesses. Also at this moment heirs may be present who wish to hear the text of the document.
Sealed envelopes are opened only after the death of the testator. Moreover, according to the laws, a certain period must pass. Namely - 15 days. Only after this will the will be opened. And the autopsy protocol is drawn up. Without it, the opening procedure will be violated.
All heirs present during this process are given copies of the protocol. The original remains with the notary. But it is not always so easy and simple to cope with the opening of a testament of a closed type, as well as to divide the property.
Through the court
The announcement of a closed will, as we have already found out, takes place in the presence of witnesses, as well as heirs. This is done by a notary public. But what if the text of the will remains incomprehensible? And to a notary public, and to applicants for property?
In this case, you can transfer the will to the court. Judicial authorities also have the right to open this document. This must also be addressed when the heirs oppose the interpretation expressed by the notary. When a document is submitted to a court, the assessment and disclosure of the meaning of it will take place with the help of witnesses and experts.
Interpretation is a separate serious topic. After all, the heirs can change their data, and the testator can make a mistake when compiling the text or just illegibly write this or that information about the recipients of the property. Therefore, the appeal to the court may be "delayed." After all, you have to figure out who and what is due.
In real life, this practice does not occur so often. After all, secret wills are not so popular. More and more often the inheritance is transmitted through gifts, or in the usual way.
Example
And now you can look at an example of a closed will. If you do not take into account the fact of handwriting, then the text is usually not much different from the usual form of the document. Based on the above example, you can make your secret will. It is not as difficult as it seems. A document appears that distributes the available property among the heirs as follows:
I, xxx (your initials), who was born in (address), referred to as the "testator", by this will give the order to divide the property I have in case of my death.
Will:
- The apartment located at ... (address), total living area (data on the apartment and its size), to his son (indicate family relationship or who the recipient of the inheritance is to you) in the amount of 70%, as well as his roommate the remaining half.
- Property in the form of a car (information about real estate) and a garage, which is located at the address (data about it), to his colleague at work
This testament was written by me without witnesses personally (indicate the place and date of preparation of the document, put your signature).
That's all. This is what a closed will looks like. The sample of writing thereof, as you see, does not contain any significant features. In any case, for the testator.You have every right to distribute property as you wish. It is only advisable to mention the mandatory share due to the heirs. This sample of a closed will is the simplest. But it helps to understand the principles by which the text of the document is compiled. Try to divide all property between heirs. Otherwise, inheritance by law will bring them a lot of problems.
