Who gets a privatized apartment after the death of the owner without a will? The general mechanism of inheritance is understandable, however, many questions arise, because the owner may not be alone, in addition, there can be several applicants for an apartment, for different reasons.
Inheritance object
Privatization is the process of transferring an apartment from state or municipal to private ownership. The owner becomes the person who lived in it before privatization. The apartment is included in the inheritance, if the rights to it are registered. If the deceased did not have time to do this, a lawsuit is filed for inclusion in the hereditary mass. If 6 months have passed, a lawsuit is now filed for recognition of the right, and the section is made in court.
The situation is complicated when a citizen has just begun to take the first steps for the purpose of privatization, but managed to sign an agreement or was refused it, then the question arises of proving the rights of the testator. It doesn’t matter if a will for an apartment is made or not.
Legislation
How a privatized apartment is inherited after the death of the owner without a will is easy to find out: you need to look into part 3 of the Civil Code. It contains all the rules on inheritance.
The Plenum of the RF Armed Forces with general explanations of the legislation, practice reviews help clarify the understanding of the norms and predict how the dispute will be resolved if one of the applicants for the apartment is sued.
Where does it all begin
The half-year period begins on the day of the death of a person or the adoption of a court decision that established his death in a special proceeding.
Testament - disposal of property in case of death, drawn up by a notary and certified by him. In urgent circumstances it is permitted to draw up an order without a notary to witnesses. Returning to normal conditions invalidates such a document.
Successors choose how to receive the inheritance - according to the will or the norms of the law.
How to get an inheritance?
The surest way to become an assignee is to go to a notary public and write a statement of acceptance of the inheritance. This is enough to secure the property, but not enough to freely dispose of it later.
Registration in a privatized apartment or cohabitation does not mean that a person automatically accepted the property. The procedure is the same for all, without exception, we are talking about spouses, children or other applicants. You should not rely solely on the fact of cohabitation.
Children are represented by their parents or representatives appointed by the guardianship authorities, if the child is already 14 years old, he is allowed to submit an application without any participation of his own free will.
According to the Civil Code, inheritance is frozen for 6 months after the death of a person. Time is given to collect the documents that are needed for registration. The heirs for this period submit an application for acceptance or, conversely, for the renunciation of the inheritance.
If no application
If the assignee actually accepted the inheritance: lives in an apartment, pays for utilities, repairs, pays taxes, from the point of view of the law he is considered to have accepted the inheritance.
Regardless of how much time has passed since the death of the owner, such an heir has the right to contact a notary for paperwork.A sufficient amount of paper gives the notary the right to draw up property without sending the person to court.
There is another option: the remaining heirs, who submitted the documents on time, according to the general application, have the right to agree that the missed person also receive their part.
Litigation
In case of missing the deadline for submitting an application to a notary, real estate lawyers advise two options:
- ask the court to restore the term for inheritance;
- ask the court to accept the fact of its adoption.
Missing time is due to various reasons that objectively did not give the opportunity to go to a notary or send your representative. For example, a person for a long time was in a place where there was no connection with the outside world or in a barracks position, he suffered from a serious illness (it is considered respectful when in a hospital). Another reason is force majeure events (natural disaster). The law does not provide an exhaustive list of them. The point is the applicant’s proof of intent to participate in the inheritance of the privatized apartment, which was hindered by objective factors.
The statement of acceptance has a different focus. Its purpose is to prove that, despite the absence of a documented statement, the acceptance of the inheritance took place. It is filed when the notary does not have a sufficient amount of conclusive evidence of the actions of the heir. Only the court has the right to take into account the testimony of witnesses.
It is better for a person who does not have experience and knowledge in the field of jurisprudence to turn to a real estate lawyer for preparing documents.
Dates of adoption
The law establishes a 6-month period of time to accept property (file an application with a notary or take actions confirming acceptance).
An application must be sent by mail certified by another notary public on the last day of the term, in the case of mail, by the end of the working day. If the end of the term falls on a weekend or holiday, it is extended until the first working day.
What are the nuances? Inheritance rights without a will are determined by the actions of other successors.
The heir’s refusal of his rights or a non-canceled judicial act on removal from the inheritance gives applicants from other lines another 6 months to go to the notary public.
If the heir simply did not accept the inheritance, the other applicant is given 3 months after the end of the 6-month period given to the first heirs so that he makes a decision in turn.
If there are many heirs, a privatized apartment after the death of the owner without a will is unlikely to remain without the owner.
Succession without probate
The privatized apartment after the death of the owner without a will is distributed between the successors in accordance with the provisions of the law.
There are 8 queues of heirs, while a representative of one queue can go to another in different ways.
The right of inheritance transfers to another queue as soon as all representatives of the previous queue are suspended, die or renounce their rights.
Each of the successors acquires an equal share with everyone. According to the Civil Code, inheritance can be carried out with exceptions, privileges are granted to children and those who lived in the apartment until the death of the testator.
The law prohibits partial inheritance. For example, it is forbidden to take an apartment, abandoning debts for utilities or fees for major repairs.
There are two more mechanisms for attracting to inheritance: by the right of representation or transmission.
Submission right
Art. 1146 CC indicates acceptance of an inheritance in the order of presentation. The mechanism applies to heirs who died earlier or on the same day as those after whom they were supposed to inherit.
Who exactly replaces whom is described in articles on the composition of the queues of heirs. The scheme is valid only in the first three phases.
The law refers to grandchildren, their descendants, nephews, cousins. They become a substitute for a dead person. If the right of representation extends to several people, the share is divided equally between them.
The scheme does not work if the main heir was deprived of the share of the inheritance by testament, or there is reason to consider him an unworthy heir. The court is suing for the removal of the offspring because of his behavior.
The right of representation works provided that the property has not been bequeathed.
No specific features regarding the statement of their rights and terms for heirs on this basis have been established.
Inherited Transmission
This form of taking property is different in that the heir dies after the opening of the inheritance and does not have time to declare its acceptance. This is an important point, since from the moment of adoption a person is considered the owner, regardless of whether he managed to register his rights or not.
It should be noted that the property offered by the transmission is not considered part of the inheritance. As in the case of the right of representation, one successor is replaced by another. However, citizens have the right to indicate in the will of the transmitter.
At the same time, if the heir had the right to an obligatory share in the apartment, this right does not pass to his successors.
If after his death, less than 3 months remain for the acceptance of the inheritance, the remaining period of time is automatically extended. Those who did not have time to file an application with a notary in time have the right to go to court to restore the deadline for adoption. The applicant is also allowed to ask the court to recognize him as having accepted the inheritance.
What rights do husband or wife have?
Together with children and parents, the spouses are primarily the heirs, along with whom the remaining property is shared. At the same time, the rule on jointly acquired marriage applies. The fact that formally only the deceased possessed all the rights does not detract from the rights of the second spouse. Federal Law "On Inheritance", Art. 1150 Civil Code separately emphasizes this nuance.
Not considered common property acquired before marriage, as well as inherited or donated. The purchase of real estate during the marriage, but made at personal expense may be recognized as common. The last point is complicated, and often the fate of the property is decided by the court.
From the moment of divorce, the right to inherit after the former spouse is lost. If the couple divorced, then the period elapsed after death is taken into account. If less than 3 years have passed, there is reason to believe that a lawsuit could be filed regarding the division of the common property. The defendants in the dispute over the partition will be the heirs. As a result, the volume of inherited property will decrease, and the number of owners of the privatized apartment will increase.
If the marriage has not been concluded
The cohabitant or cohabitant has much less rights than the legal spouse. Under the law, such a person has the right to count on an inheritance, provided that 12 months before the death of the testator received serious financial assistance from him. Having your own income does not matter.
The right to receive an inheritance arises subject to the refusal of representatives of other lines from their rights or their removal from the inheritance.
So, close people also have a share in the privatized apartment after the owner’s death, although their chance to get it is rather small.
Who else has inheritance rights
Adopted children and their offspring, along with their own children and their offspring, have the right to declare their rights. The court decision on adoption gives the child the same rights as the native child. Family ties with parents and other relatives cease. During adoption, the court may maintain a kinship with the former parents or one of them, then the right to accept the inheritance after the parent or child is also preserved. Adoption with a preserved family relationship does not give the right to accept the inheritance after new parents.
Disabled dependents (disabled people of all 3 groups or retirees by age 55 and 60 years old) who are included in one of the succession queues by law are included in the circle of successors if they have been dependent for at least 12 months.
What are the heirs entitled to agree on?
Who will get the privatized apartment? All involved in the inheritance by law have an equal share in the inheritance. Everything is divided into shares: real estate, deposits, vehicles, shares in cooperatives, a share of participation in business companies, etc. If there are several objects and several heirs, this situation is inconvenient. Shared property obliges to dispose of property as agreed by all owners.
In some cases, it is difficult due to relationships, in others it is difficult from a technical point of view.
The law allows the heirs to divide among themselves the property they have received of their own free will. The agreement is allowed to be signed before the registration of property rights (we are talking about real estate and cars).
Optionally, the section must correspond to the formal shares determined by the notary.
Due to changes in the legislation, since 2016, agreements in which the division of real estate or shares in it is carried out must be executed by notaries.
The Civil Code prohibits refusing to register transactions due to the fact that the size of the shares in the contract does not match the size of the shares in the certificate of inheritance. In addition, registrars are not allowed to verify the legality of transactions certified by notaries.