All these and other changes also affect the emergence of the dispute between the heirs, which means there are even more problems. Thus: problems were and remained.
Protect their property rights and legitimate interests in judicial order You can in several ways.
in order of claim
in the order of special production
section of hereditary property when the heirs did not agree
the court can recognize the heir to the inheritance, if the heir did not know about it or missed this period. In cases of restoration of the term, there is a dispute about the right, otherwise the heir would not appeal to the court.
in the case of a dispute between the heirs on the procedure for using the indivisible thing. This issue is solved by the court (P2 Art. 1152 of the Civil Code of the Russian Federation)
the court can recognize the heir to refused from the inheritance after the expiration of the deadline if the causes of this pass is respectful. (P2 Art. 1152 of the Civil Code of the Russian Federation)
leaders inheritant have the right to present its demands to the inheritance to the heirs. (P3 Art. 1175 Civil Code of the Russian Federation)
to recognize the heir to unworthy (illegal actions, malicious evasion and others) must be confirmed in court (Art. 1117 of the Civil Code of the Russian Federation).
the will can be recognized as an invalid court on the claim of the person, the rights and interests of which can be violated.
at the request of the person, the court confirms the fact of making a testament in emergency circumstances (P3 of Art. 1129 of the Civil Code of the Russian Federation).
after the opening of the inheritance, the court may free the executor of the will from his duty.
the court may, taking into account the property of the heirs, reduce the obligatory share or even refuse
the court may suspend the issuance of a certificate of inheritance, if the inheritator has a child, winning with his life, before his birth (p3 of Art. 1163 of the Civil Code of the Russian Federation).
in the order of special production, the fact of finding a person on dependency, registration of birth, death, the fact of accepting the inheritance and opening places (Artifications 247 Code of Civil Procedure of the Russian Federation)
the announcement of a citizen of the dead occurs in court (ch. 28 Code of Civil Procedure of the Russian Federation).
in case of incorrect notarial action Or the failure of the heirs is entitled to appeal against the actions of the notary in court.
2.2. Inheritance claims are the problems associated with hereditary legal relations.
In the scientific literature, many definitions of the inheritance claim were offered. All points of view reflect this concept only from the material side.Inheritance lawsuit is the presentation of the court to the court for consideration and permission, the demands of the heir to face, which is mistakenly considered herself a heir, resulting from a dispute about the rights and things included in the hereditary mass.
Most often, hereditary claims are claims to award the defendant inheritance or part of it. Inheritance claims for recognition include claims for recognition of the adoption of the inheritance. If there is a dispute about the right, if there is no dispute - such cases are considered in the order of special production.
In addition to dividing lawsuits on procedural signs, they can be classified by material and legal, i.e. According to the nature of the controversial legal relationship, from which the claims follow.
The material sign can be distinguished by the following groups of lawsuits on disputes arising from civil, housing, labor, family legal relations, etc.
In each group, IKA can be divided into subgroups. So, in the group of claims from civil legal relations Cases arising from violation of property rights, from violation copyright, From the violation of hereditary law, from harm.
This is evidenced by clarification of plenums Supreme Courtwho are taken out of specific problems of judicial practice.
You can select four groups of inheritance claims.
The first group of problem disputes is disputes between the heirs under the law.
These include disputes about the division of property, disputes on the recognition of the heirs, about the allocation of a share, disputes about deprivation hereditary right, On the extension of the term for the adoption of the inheritance.
The second group includes disputes between the heirs under the law and the will. These problems arise when considering the question of the invalidity of the testament completely - then the question of inheritance by law is faced. For example, the issuance of the obligatory share of inheritance.
The third group of these problems include disputes between the heirs in the will. In different wills.
In the first case, the dispute may be about the division of property or that the testator pointed out the share of heir less than ½ of his share. In the second case, the dispute is a requirement for recognizing invalid later drawing up testament.
The fourth group includes disputes between the heirs and the state. Because The state is also a heir either by law or in the will, then, given the features of this type of dispute, these disputes should be allocated in a separate group. The following features exist in disputes involving state: the exemption from the payment of the state duty side is the financial body - the state, the lawsuit may also show the prosecutor. With the entry into force of the third part of the Civil Code of the Russian Federation, this group of disputes will decrease, because Increased the circle of heirs according to the law and the transfer of inheritance to the state will be rare.
2.3. Prerequisites and conditions for the right to appeal to the court. Excitation of hereditary affairs.
The right to appeal to the court for protection - the most important law Citizens in the field of justice. In accordance with Art. 4 Code of Civil Procedure The Court proceeds to the consideration of the case on the statement of the person who addressed the defense.The initiation of the case in the court is the first stage of civil proceedings. Cases associated with hereditary legal relations can be initiated in court the heirs under the law or in the testament.
To protect their hereditary rights, it is necessary to comply with the conditions stipulated by law, called the premises of the right to appeal to the court. Backgrounds of appeal to court are procedural legal facts.
Necessary prerequisites for appeal to court are:
a) jurisdiction of the case to the court;
b) the lack of a court decision on a dispute that has entered into legal;
c) the lack of a court definition of the claimant claims from the claim or approval of the settlement agreement between Parties;
d) the absence in the work of the court case on the dispute between the parties.
1) jurisdiction.
The first background for the appeal to the court is compliance with the jurisdiction.
There are various institutions endowed with legal authority, but each of them has the right to consider only those cases that are related to their supervision, i.e. jumped to him.
As a rule, hereditary problems before becoming a subject of trial, first are the subject of notarial production.
If an inheritance dispute arose, then it is considered in court.
Thus, it is based on the delimitation of the subordination of hereditary lawsuits to the court and notarial authorities lies with the presence of a dispute.
If there is no inheritance about the persons about the inheritance, hereditary rights are drawn up in a notarial office.
Otherwise, the case is in special work, since indisputable cases are considered here. In this case, the notarial office requires the establishment of a fact only when a citizen receives a court decision.
The dispute about the right to distinguish from such situations where the right is not disputed by anyone, but cannot be implemented without a jurisdictional body.
The court is concluded on disputes, if at least one of the parties in the dispute is a citizen.
The Constitution of the Russian Federation found that everyone is guaranteed the judicial protection of his rights and freedoms and their indispensable participants are citizens, therefore disputes associated with hereditary legal relations are jumped by a court.
2) identity.
It is also necessary to find out whether there is no one in the production of this or other case according to the identical dispute. If this is, the right to court is considered to be implemented and secondary disputes to judicial case adopted to be can't
3) conditions for the implementation of the right to judicial protection.
In addition to the prerequisites for the appeal to court for protection, a number of conditions must also be observed.
a) the case must be superseded by the court in which the application is submitted;
b) the application must be filed by a capable person;
c) The person acting on behalf of another person must have the authority confirmed by documented (P9 Art. 129 GPC RSFSR).
The procedural consequence of non-compliance with these conditions will also be refusing to accept the application. However, he does not impede secondary turning to court if the violation has been eliminated.
a) The statement should be indicated in the claim:
1) The name of the court in which the application is submitted.
2) the name of the plaintiff, address.
3) the name of the defendant, its residence.
4) The circumstances on which the plaintiff basses its requirement.
5) the claimant's requirement.
6) Claim Price.
7) List of documents attached.
So, N. presented a suit to D. to the court on invalidation of the will. In accordance with the statement, it was not indicated for which reasons the applicant believes that the certificate issued by the notarial office does not meet the requirements of the inheritance law, the circumstances of the case are not toozed, the relevant evidence of the requirement is not specified; about the property. Having accepted these documents, the court did not exterminate the documents necessary to resolve the dispute, including the contested testament. When checking the case in the order of supervision by the Supreme Court of the RSFSR, the attention of the People's Court for these disadvantages is drawn.
When serving of the statement It is necessary to draw attention to compliance with the logistics. If the deadlines are missed, then you should think about the feasibility of such a claim that will entail the costs of state duty and a loss of time, but will not lead to the desired result
b) the claim is a deadline for judicial protection. It is important to note that the claim is applied by the court only at the request of the part of the dispute made before the decision by the court.
So, N. June 14, 2001 presented a lawsuit to K. and L. on the recognition of the actual adoption of the inheritance and recognition of the contract for the sale of an apartment invalid. N. indicated that her father died on May 12, 1994. He has a property in the form of ½ lobe of the apartment, another part belonged to his second wife L. After the death of the father, his wife handed it to N. His things: clock, tape recorder, TV. N. actually entered into the rights of inheritance. She did not reorganize the apartment, pointing out that she did not know who she belongs. The second wife sold an apartment in 1997. Respondents asked to apply the term of limitation And refuse a lawsuit. Their materials of the case should have been that N., together with his father, lived in a two-room apartment, after his second marriage they exchanged their apartment and the apartment of the second wife on a three-room and one-bedroom for N. The plaintiff knew who had a disputed apartment. The plaintiff did not want to participate in the cost of an apartment, was not interested in her fate. In accordance with P1 Art. 200 Civil Code of the Russian Federation The limitation period begins to flow from the day when the person learned or should have learn about the violation of his right. In accordance with Art. 196 of the Civil Code of the Russian Federation, the limitation period for such requirements was established in three years. The plaintiff was supposed to learn about the violation of his rights, the limitation period was missed - the lawsuit denied.
c) The subject of evidence is a special procedural institution, which includes only those facts that are material and legal importance. Facts, without finding out which it is impossible to solve the case correctly.
So, M., I., et al. They appealed to the court with claims to their sister X. On recognition partly invalidation of the certificate of the right to inheritance. The plaintiffs indicated that their mother who was deceased in 1970, took his home to children, but H. raised him for himself.
The Ruzian People's Court of the Moscow Region refused to refuse, justifying this by the fact that H. was the only heir to adopted inheritance in the law established by law into a six-month term. Others missed this period.
The Supreme Court of the Russian Federation, by canceling the decision in terms of the refusal of M., indicated that the People's Court did not take into account the rule of Art. 547 GK of the RSFSR, according to which the inheritance can be accepted and after the expiration of the six-month period, if others adopted heirs do not mind it. Of the materials of the case, it is clear that M used part of the house, with the consent of the defendant in 1983 it produced a repair in it, after which the house was divided into two parts. In addition, M. introduced the court of receipt of payment communal services And other documents confirming that she used part of the house as the owner. All these circumstances give reason to believe that M. can be recognized as an adopted inheritance according to claim 1 of Art. 547 GK RSFSR.
d) applying the rules of law
Determining the norms of law, it should be borne in mind that the circle of heirs, the order and timing of the adoption of the inheritance, the composition of the inheritable property is determined by law
e) the composition of persons
When preparing a case for a judicial proceedings, the judge must notify interested parties about the proceedings, time and place of trial. Such people can be both citizens and legal entities.
Inheritance cases are often complicated and, as a rule, are considered with the participation of representatives.
The participation of the guardianship and guardianship authority will contribute to the protection legitimate interests minor heirs. The prosecutor in protecting the rights of minors and incapacitated persons can also participate.
Often B. hereditary affairs take part in financial bodies Protecting state.
According to Art. 1154 of the Civil Code of the Russian Federation The inheritance should be taken on time, if not, then the state passes.
2.4. Proof of
Now the provision of the necessary evidence depends entirely on the will of the parties. The court only assists in this.1) On disputes between the heirs about the recognition of the right to hereditary property and its section requires the following documents:
1.1. copies of death certificate;
1.2. documents confirming the last place of residence;
1.3. evidence confirming the adoption of inheritance on time;
1.4. Documents on the right to inheritance by law, in the will;
1.5. If there were testaments, then all copies;
1.6. Documents confirming the presence or absence of other heirs;
1.7. Documents indicating property belonging (for their own funds, property of spouses).
Also documents:
2) on disputes associated with the recovery period.
3) on disputes about the allocation of the share of hereditary property in nature.
4) on disputes on the recognition of the will invalid.
5) According to disputes on the allocation of a mandatory share.
6) examination. In addition to documents, expertise is required (by some cases).
After performing all the tasks of the preparation of a hereditary case, the judge makes a definition of appointing it to the court proceedings.
2.5. Trial
The trial is the permission of one or another inheritance problem.To consider the case, it is necessary to properly establish circumstances that are important for the case and consider all evidence of the dispute. Failure leads to cancellation.
If circumstances impede the continuation of the case, the proceedings are not over the case, but is suspended.
The court is obliged to suspend production in accordance with Art. 214 Code of Civil Procedure of the Russian Federation in cases:
the death of a citizen if a controversial relationship admits the succession or legal entitywho were the party in the case;
losses of the body capacity;
stay of the defendant in the current part of the Armed Forces of the Russian Federation;
the impossibility of considering this case to the permission of another person considered in civil criminal or administrative procedure.
stay side by military service or bringing on any state duty;
finding a party in a long service business trip;
finding a party in a medical institution;
the search for the defendant under Art. 112 of the Civil Code of the Russian Federation;
appointment by the court examination.
The court's decision
The trial is completed by the decision of the decision on the case.
Sometimes it is difficult to establish what belongs to the subjects of the home environment and consideration.
The Plenum of the Supreme Court of the Russian Federation explained: antique items representing artistic and historical value cannot be considered as a home environment. To clarify the issue of value of the subject, the Court may appoint an examination.
If the examination is not enough, the court may appoint a re-examination.
Between A. and B. A dispute arose about the section of the house, which turned to them on the right of inheritance immediately after the death of his father. According to the conclusion of the district architect and BTI, the section of the house is possible, but only on unequal parts. Given this, as well as the fact that the plaintiff lives in another city and the house constantly does not use, the Novgorod Regional Court allocated the defendant most of the house and recovered from him in favor of the plaintiff monetary compensation For a part exceeding its share.
World Agreement
The trial of cases of inheritance does not always end with judicial decision. Quite often, the parties conclude a settlement agreement.
In accordance with Art. 165 Code of Civil Procedure of the Russian Federation on approval of the settlement agreement The court makes a definition that ceases proceedings.
2.6. Protection of hereditary rights in the order of special production
Special production is the type of civil proceedings in the order of which indisputable civil cases are considered in order to create conditions for the exercises by citizens of their personal and property rights.The deeds of special production general rules and principles civil process. Some restrictions have a competitive principle, because There is no dispute about the right, then there is no opposite side.
In special production it is allowed to connect to one production of several applications. They can be combined and considered in one production.
2.7. Nootic complaints
To obtain a certificate of inheritance, you need to refer to the notary.If the interested person considers the wrong notarial action or refusal to be the wrong notarial action or refusal, then it is entitled to file a complaint to the district (urban) court at the location of the notary office during ten-day deadlines.
You can also file a complaint to the wrong certificate of the will.
Any other person, whose rights and protected interests were or could be affected by a notarial action, have the right to protect their violated law or interest by contacting the court with a claim.
The third part of the Civil Code of the Russian Federation, dedicated to the most part, hereditary legal relations, entered into force in 2002. This normative act You can call one of those who were most expected in Russia, since the socio-economic sector for ten long years has changed significantly. Hereditary relations were relevant at all times, as evidenced by the existence of many other acts before the adoption of a new part of the Code.
With all this, disputes that develop in the field of hereditary right, take place today. Actively discussed valid Civil Code RF (part 3), during which they sound like bad and good comments.
The concept of problems in hereditary right
Like any other area of \u200b\u200blaw related to the relationship of citizens among themselves, hereditary right is accompanied by a number of problem points.
Definition 1.
The problems of hereditary law are a number of unresolved issues that impede normal process Applications of the norms of hereditary right.
The problems of inheritance were important in antiquity. In Russian truth already contained norms that concerned inheritance. This is also due to the fact that these issues relate to almost every person and are closely related to the property of citizens.
Problems in inheritance by law and testament
After analyzing part 3 of the Civil Code of the Russian Federation, some problematic aspects can be distinguished while inheritance by law and will:
- problems relating to the obligatory share;
- problems associated with unworthy heirs.
Problems relating to the obligatory share. The law set the list of those persons who have the absolute right to receive a share of inheritance, despite various circumstances. He attributed to them juvenile children of the testator, as well as his disabled dependents.
Problems in this area are associated primarily with the release of such a share of the general hereditary mass. According to the law, the obligatory heirs receive 50% of the total hereditary property, including the testificant refusals of other heirs made in his favor. At the same time, a number of problem points arise that relate to the question of calculating the volume of the volume of this refusal, if it was provided, for example, the right to use residential premises.
Problems also arise in connection with the lack of legislative formulations in this area. So, the law does not define the concept of "mandatory heirs." In addition, the notion of "disabled persons" is also absent, which is compensated only by appeal to legislative acts other branches of law.
Problems associated with unworthy heirs. The law focused an exhaustive list of persons who can become unworthy heirs. First of all, he took them those who were deliberate illegal actions Against the testator or heirs, with the aim of contributing to the fact that their or any other persons call for inheritance or increased their share.
Note 1.
Persons who have committed such actions in the state of insaneness are exempt by the court from criminal responsibility And cannot be recognized by unworthy heirs.
The second category of such persons is parents deprived parental rights. The problem in this case is that such heirs are admitted unworthy in the event of a proven fact of their malicious evasion from the content of the testator. At the same time, any heir, who himself is interested in changing the process of transferring property can be applied for their unworthy recognition.
The designated problems represent only a small part of those issues that are open and are subject to different discussions. This only speaks that hereditary right is not standing in place, but actively develops, changes that entails the emergence of new topics for discussion.
The need for judicial protection at the heir could arise due to the fact that someone did not recognize those rights that are part of the inheritance, or due to the fact that someone has violated his behavior or not recognized the right of this person as heir.
To protect their hereditary rights, the heir was provided by the following inheritance claims:
- - General Inheritance Suit (Hereditatis Petitio) - wINDICATIONSHIP Heir or Person with the face (universal Fideyko-Missaria, Fisk, etc.), who was found all the inheritance. The heir not possessing hereditary property presented this claim to the owner non-deleger. This lawsuit was directed against anyone who or challenged the hereditary right of the plaintiff, issuing himself for the heir, or held hereditary things, without pointing out any title to his excuses (for example, challenges the reality of the will, from which she displays the right of inheritance). Based on Senatusconsultum Juventianum 129. The defendant who had a good faithful to his right, was obliged to issue only that he was still left of the inheritance. The conscientious owner of the inheritance was supposed to give the plaintiff with his enrichment due to the inheritance (at the time of the claim), to keep the costs of hereditary property incurred by him (regardless of whether these costs were necessary, useful or were performed only for the pleasure of this person). The unscrupulous owner was supposed to issue the plaintiff, everything received from the inheritance with all the fruits and increments was responsible for the guilty (and from the moment of the presentation of the claim - and for randomly) death or damage to the obtained values \u200b\u200band could only keep the amount of costs suffered by them necessary and useful, but And then only inspiring, since the beneficial costs still increased the value of those things to which they were produced;
- - Special protective interdict Pretio-Possessoria (Hereditatis Petitio Possessoria), with the help of which the Pretor's heir could get the ownership of things belonging to the composition of the inheritance. The interdict of the Pretor's heir was subject to the same rules as the above claim. With the transition to the process, the extraordinary difference between both types of protection of hereditary rights finally worn, and the interdict became a means for the speedy preparation of provisions inheritance;
- - Singular lawsuit - a claim that was at the disposal of the testator. Presented against persons who did not dispute the hereditary right of the heir, but only on other grounds do not want to return inheritance things or pay for hereditary requirements. For example, if a third party delays a thing from the inheritance, the heir can present the same imaging claim that would be brought by the testator if he were alive.
Lex Julia El Papia Poppaea found that in some cases the inheritance adopted by the heir may be taken away from him as unworthy. The inheritance was taught in this way or other heirs, or in the treasury; Moreover, the treasury performs all refusal assigned in the will, pays hereditary debts, etc.
The adoption of measures for the protection of hereditary property is one of the important notarial actions that guarantee the protection of the property interests of the heirs.
The current legislation gives the right to adopt the necessary measures to protect the hereditary property
- · Notary (paragraph 1 of Art. 1171 of the Civil Code of the Russian Federation),
- · Executive of the will (sub. 2, paragraph 2 of Art. 1135 of the Civil Code of the Russian Federation),
- · officials organs local governments and officials consular agencies Russian Federation (clause 7 of Article 1171 of the Civil Code of the Russian Federation) in cases where these persons are endowed with the right of notarial actions.
Current legislation does not contain an exhaustive list of measures that can be taken authorized persons In order to protect the hereditary property and management of them. Regulatory base is the Civil Code of the Russian Federation and Art. 61-69 Fundamentals of the legislation on the notarity, which in the very general We regulate questions about the adoption of measures for the protection of inheritance, inventory and storage of hereditary property. It should also be noted that in accordance with Art. 51 The foundations of the legislation on the order of the Ministry of Justice of the Russian Federation of April 10, 2002 No. 99 approved forms of registers of registration of notarial actions, certificates and certificate inscriptions. A total of 72 forms were approved. Among them there is not a single form for compiling procedural documents To take action for the protection of hereditary property. The notary is free in choosing forms when compiling these documents.
Measures for the protection of hereditary property and the management of them in accordance with the current legislation are:
- * Inventory of hereditary property (paragraph 1-3 of Art. 1172 of the Civil Code of the Russian Federation, part 1 of article 66 of the foundations);
- * Cash adoption of inheritance, in the notary deposit (paragraph 2 of Art. 1172 of the Civil Code of the Russian Federation);
- * transfer of hereditary property for storage (clause 4 of Art. 1172 of the Civil Code of the Russian Federation, Part 2 and 3 of Art. 66, Art. 67, paragraph 2 of Part 1 of Article 69 of the foundations);
- * transfer of hereditary property in trust management (Art. 1173 of the Civil Code of the Russian Federation);
- * Direction by the notary mandatory for the execution of an instruction on the adoption of measures to protect the inheritance (paragraph 5 of Art. 1171 of the Civil Code of the Russian Federation, Art. 65 of the foundations).
In accordance with paragraph 2 of Art. 1171 Civil Code of the Russian Federation, notary takes measures to protect the inheritance and managing it at the request of the heirs, the executor of the will, local government, the guardianship body or other persons acting in the interests of preserving hereditary property. In the case when the executor of the will is appointed (Art. 1134 of the Civil Code of the Russian Federation), the notary takes measures to protect the inheritance and managing them in coordination with the executor of the will.
Messages about the remaining property or statements about the adoption of measures in the protection of hereditary property may be filed with writing, as well as by phone. Applied messages, applications should be registered in the book of accounting for applications for measures to protect the hereditary property on the day of their receipt.
The executor of the will is taking measures to protect the inheritance and managing them independently or at the request of one or more heirs.
The notary determines the period during which it performs measures to protect the inheritance and managing it, taking into account the nature and value of the inheritance, as well as the time required by the heirs for the entry into the inheritance. However, this period should not be more than six months from the date of the opening of the inheritance Hereditary law: studies. Manual / R. Yu. Zakirov, Ya. S. Grishin, M. M. Makhmutova. - M.: Publis.-Torg. Corporation "Dashkov and K", 2009. - P.89 ..
According to paragraph 4 of Art. 1171 of the Civil Code of the Ministry of Civil Procedure for the Executive Testament of the Maximum Term for the adoption of measures to protect the hereditary property is not established. It performs these measures during the period necessary for the execution of the testament.
In the process of protection for the protection of hereditary property, the notary conducts a number of activities that ensure the full protection of this property, in particular:
- * establishes the place of opening of the inheritance, the presence of property, its composition and location;
- * notifies about the upcoming Opisi of the heirs, the location of which became known;
- * In confirmation of the death of the testator, there is a certificate of death, leaving in his affairs a copy;
- * If death certificate is not possible, protection measures can be adopted in the presence of reliable information about the death of the testator;
- * Specifies whether preliminary measures were taken on the protection of the remaining property, if they were, by whom was a sealing room with the property of the deceased, where the keys are from this premises are;
- * notifies about the upcoming Oops of the executor of the will, heirs, in the necessary cases of the guardianship and guardianship authority and other interested parties;
- * If there is reason to assume that the property in the order of inheritance will be transmitted to the Russian Federation, reports on the Obia to the relevant authority there.
According to Art. 1169 of the Civil Code of the Russian Federation, the Notary is entitled to describe the property only under the condition of voluntary presentation of property to Quests together with the experiments. At the same time, he must clarify that they have a predominant right to receive the robes of the usual home furnishings and consideration.
The legislation establishes that not any hereditary property is transferred to storage to heirs or other persons. For some things included in the described property, special order storage.
Incoming the inheritance cash is made to the nonotarus deposit, and currency values, precious metals, products from them and not requiring management securities Transmitted to the bank for storage under the contract under Art. 921 of the Civil Code of the Russian Federation.
The legislation provides for a special procedure for adopting measures to protect the inheritance, if its composition has property that requires not only storage, but also management. In the presence of such property, notary in accordance with Art. 1026 of the Civil Code as a founder of trust management concludes a trust management agreement.
According to Art. 1015 of the Civil Code of the Russian Federation by the trust managers of hereditary property can be any citizen, as well as any commercial or non-profit organizationexcept beneficiary. Consequently, the heir cannot be appointed a trustee. In addition to heirs, can not be trust managers state bodies, local governments and institutions. Hereditary law: studies. Manual / R. Yu. Zakirov, Ya. S. Grishin, M. M. Makhmutova. - M.: Publis.-Torg. Corporation "Dashkov and K", 2009. - P.92.
IN civil law In detail indicate measures to protect the inheritance (Art. 1172-1174 of the Civil Code of the Russian Federation), but at the same time the question of taking measures to protect the inheritance and managing it in terms of the accurate indication of the circle of subjects, which can take part in this remains open.
In accordance with paragraph 2 of Art. 1171 Civil Code of the Russian Federation The protection measures should take a notary at the request of one or more heirs, the executor of the will, local government, the guardianship authority or other persons acting in the interests of preserving hereditary property. The concept of "other persons" in the specified article of the Civil Code of the Russian Federation is open.
Theoretically under this concept May fall out any person who became aware of the death of the testator. At the same time, the legislation did not establish a duty on such a message - this is only the right to be implemented on the basis of the good intentions of the specified person.
In this regard, there is a legal problem on the actual identification of the real will of all heirs to accept the inheritance, and other authors also indicate that the existing hereditary legal relations are not fully stacked in the framework of the overall design of legal relations.
In particular, it concerns the issue of fully taking into account the will of the heir in its actual unchecking about the opening of the inheritance, as well as on the adoption of various measures to protect the estimacy. So, L. Yu. Mikheeva drew attention to the presence of a collusion between Art. 64 Founded of the Legislation of the Russian Federation on a notary, which allows the adoption of the specified measures for the protection of hereditary property on its initiative, and Art. 1171 of the Civil Code of the Russian Federation, which provides that the basis for the actions of the notary for the adoption of measures for the protection of hereditary property is the presence of a special statement of persons acting in the interests of preserving the hereditary property of Tomilov A.Yu. Problems of the formation of hereditary property // Bulletin of Chelyabinsky state University. - 2013. -№17. - p.34 ..
This challenge call problem is associated with the lack of an appropriate procedural mechanism that provides this challenge, which requires it to establish.
According to A.Yu. Tomilov, the solution of this problem is possible by introducing into civil procedural legislation corresponding special order. Today, this procedure was transferred to notaries, and when performing notarial actions for the protection, identification and subsequent transfer of the inheritance, the notary should act including in the interests of all heirs, but the procedural mechanism of mandatory actions of the notary provides for only the registration of the application for the occurrence of the right to inheritance in the book of accounting book and the opening of a hereditary case. In accordance with Art. 61 The foundations of the legislation of the Russian Federation on the notary notary, which received a message about the inheritance operating, is obliged to inform those heirs, the place of residence or the work of which he knows. Thus, the legislation does not allow the problems associated with the wanish of heirs.
Notaries are not required to search and notify other heirs about the inheritance: in accordance with the law, this is the right notary, and not a duty. At the same time, the search for heirs is legally limited only to publication in the media, and only the cost of publishing a notary can be attributed to the account of hereditary property.
In accordance with paragraph 4 of Art. 1171 of the Civil Code of the Russian Federation, notary measures the protection of the inheritance only during the period necessary to the heirs for the entry into the inheritance, but not more than within six months. Thus, entry into the inheritance is considered exclusively within the framework of the dispositional rights of the heir and limited to the periods of implementation there.
It is unlikely to agree with that, since the heir may not be informed of the inheritance.
In existing legislation mandatory order obtaining notary authorities information about the death of the testator is not provided - by virtue of the fact that information about state registration death in accordance with paragraph 2 of Art. 12 of the Federal Law of November 15, 1997 No. 143-FZ "On Acts civil status»Reported by the head of the civil status record authority only in tax and other authorities. Thus, the provision on the immediate adoption of measures for the protection of hereditary property, as occurring in the preceding legislation is absent. There are questions about the nature of the measures taken, ways to protect property, taking into account the fact that Art. 64 Founded of the Legislation of the Russian Federation on the notarity indicates that these measures are taken when it is necessary. Thus, the situation arises when the notary cannot assess the degree of need to make these measures and carry out measures to identify the volume of inherited property.
The adoption of measures for the protection of property is entrusted both on the notary and on the deleteprics (if available). However, the law did not endorse the notary as an authorized body in the field of hereditary legal relations, on the adoption of acts for other persons on the protection of hereditary property. In many ways, the solution of this issue remains at discretion judicial bodiesWhat leads to the emergence of litigation.
According to Part 3 of Art. 1171 of the Civil Code of the Russian Federation in order to identify the composition of the inheritance and its protection of notaries are authorized to submit requests to banks, others credit organizations and other legal entities about their property information that belonged to the testator. At the same time, the request is not a security measure, but rather a way to obtain information.
The absence of clear wording in the legislation can lead to violation of the rights of heirs in the same place ..
Here I would like to imagine practical use The norms of inheritance within the framework of this issue.
So, there is a definition of Leningrad regional Court dated June 27, 2013 N 33-2356 / 2013 in the case of Z.O. who appeal to the court with a statement about challenging the refusal to perform a notarial action.
In the rationale of the stated requirements indicated that in accordance with the notary decree from<...> He was denied in conclusion of a trust management agreement on the car brand<...> and trailer left after the death of his brother Z.V. The applicant considers the ruling illegal and asks him to cancel.
By the decision of the Vyborg City Court of the Leningrad Region dated December 27, 2012 in meeting the statement of Zo. denied.
In the appeal, the applicant asks the court decision to cancel, considering it illegal
According to paragraph 1 of Art. 1173 of the Civil Code If the inheritance has property requiring not only security, but also management (enterprise, share in the authorized (share) capital of the economic partnership or society, securities, exceptional rights And the like) notary in accordance with Art. 1026 of this Code as a founder of trust management concludes a contract of trust management of this property.
As follows from the materials of civil case, Zo. He is a brother of the deceased Z.V. Zo. He turned to the notary of the Vyborg notarial district of the Leningrad region B.T. With a statement about the conclusion of a trust management agreement with him in the form of the above-mentioned car.
Refusing to satisfy the stated requirements, the court proceeded from the fact that the main task of trust management is the preservation of property requiring not only protection, but also management. As established by the court, the purpose of the appeal is Notary was not to preserve the hereditary property in the proper condition for the heirs of the first stage, and the receipt of a car with a trailer for freight traffic, that is, using it for personal purposes.
Considering that the cargo car does not apply to property in respect of which it is necessary to establish a trust management (Art. 1173 of the Civil Code), the applicant's intentions are not aimed at preserving and managing hereditary property, but for its use in order to extract profits, heirs Z.V. The first stage (parents and children) of their consent to conclude a trust management agreement with the applicant were not given, the court came to the informed conclusion that the decree of the notary on refusal to perform a notarial action is legitimate and reasonable.
Judicial board, examining the materials of civil affairs, having studied arguments appeal complaint, it does not find grounds for cancellation of the court decision Definition of the Leningrad Regional Court of June 27, 2013 N 33-2356 / 2013 // ATP Consultant Plus, section "Judicial practice" ..
According to A.Yu. Tomilova There is the possibility of expanding the powers of the notary in terms of fulfilling their duties to comply with the rights of heirs, it is envisaged when making changes to Federal law dated December 30, 2004 №218-ФЗ "On credit stories", providing for the expansion of the possibilities of notaries to obtain information from the central catalog of credit stories of the Central Bank of the Russian Federation in in electronic formatThat will allow them to inform the heirs about the property of the testator in terms of the presence of its unpaid debts. It is also proposed to expand the capabilities of the notary on access to the database State registry real Estate In order to effectively search and draw up a list of property of the testator. These offers are very relevant and fair.
This study maintains a point of view that there is a need to expand the powers of the notary within the framework of hereditary right. This necessity is due to several reasons. First of all, due to the fact that the provision on the protection of hereditary property is enshrined behind the notary, respectively, resources are also necessary for its protection. It is necessary however, it is also the fact that the obvious intelligence of the law is the lack of persons on which the obligation would establish the presence or absence of the circle of heirs under the law, as well as their search. One of the options for its permission would impose these actions on a notariat, but it should be borne in mind that this work should have either worthy payment or have any preferential rights. This detects the need to legislative refinement of this problem.
Another problem with which subjects of inheritance are faced with the fact that before the opening of the inheritance, all hereditary property belonged to one person - the testator, and after death, if there are several heirs, it comes from the date of the opening of the inheritance and the total validity of the heirs. In this category, cases are not included when hereditary property is divided by the testator itself in the text of the will and there is no heir to the obligatory share. Arising as a result of hereditary succession common property Heirs can be discontinued by section of hereditary property. Up to this point in the inheritance, being co-owned by the inherited things, remain the destruction of the debtors inheritors by the services of his creditors.
A significant novelty third part of the Civil Code of the Russian Federation is the opportunity to voluntarily agree on the section of inheritance. And if they conclude an agreement in writing, the certificate of the right to the inheritance will be issued in accordance with it. Now, the heirs may not share every object into parts, but to agree among themselves to whom and that from the inheritance will get and under what conditions. And even the inconsistency of the inheritance section, produced by the heirs in the agreement concluded by them due to the heirs, the shares specified in the certificate of the right to inheritance cannot entail a refusal to state registration of rights to property obtained as a result of the inheritance section. It will significantly facilitate the life of the heirs, will give them the opportunity to avoid complex lawsuits. In accordance with Art. 1165 of the Civil Code of the Russian Federation, the rules on the form of transactions and the form of the contract are applied to such an agreement on the section of the inheritance.
Due to the significant expansion of the circle of objects that may be inherited, according to paragraph of the Civil Code of the Russian Federation - "Inheritance Problems separate species Property "- the problems of inheritance of enterprises, rights related to participation with participation in economic partnerships, societies and production cooperatives, residential premises, unpaid amounts granted to a citizen as a means to the existence Egorova S.G. Legal problems Inheritance on the current legislation of the Russian Federation: the abstract dis. ... Cand. jurid Sciences. - M., 2002 ..
According to Egorova, this year, the main requirements for the sale of an enterprise should be used to inherit the enterprise. Therefore, the composition and cost of the inherited enterprise must be accurately determined on the basis of the full inventory of the enterprise at the date of opening of the inheritance. At the same time, there must be: an act of inventory, accounting balance, conclusion of an independent auditor about the composition and cost of the enterprise, as well as a list of all debts included in. The composition of the enterprise, with the indication of creditors, character, the size of the players of their requirements. This analysis of the financial, state of the enterprise is necessary:
- · First to determine the actual price of an enterprise as a whole as hereditary property;
- · Secondly, in order for the heirs clearly imagined the potential of this enterprise, and. Could be realized to make your choice: take or refuse inheritance there ..
Accordingly, in this case, the assessment of hereditary property cannot be made under the agreement between the heirs, and the inventory of the enterprise (inventory) will not be able to carry out a notary, as indicated in Art. 1172 of the Civil Code of the Russian Federation.
As part of this study, a point of view is maintained on the need to legally consolidate the need to provide the heirs to complete information about the inherited property, that is, that the heir understood all the benefits and expenses required to receive property.
S.G. Egorova concludes that the heir to inherit rights related to participation in the economic partnership and society, the production cooperative, it is necessary to guarantee familiarization with the analysis of the financial condition of a legal entity in the dynamics. It will be reasonable to attract independent auditors of feeders not only to the assessment of the enterprise as property complexbut also to assess the actual value of the inherited share (share) in the authorized (share) capital: (property) of the relevant society, partnership, production cooperative. No need to forget that the correctness of the assessment of the real value of the property, turning into the order of inheritance, also affects the amount of tax charged from the heirs to the state's income.
Problem compensatory payments When inheritance of residential premises, the section of which is impossible in nature, is the most pressing for heirs who are not owned by nothing but a share in this residential premises. Often, such a category of heirs include disabled dependents of the testator, spouse and children. To solve this problem, S.G. Egorova is invited to legislatively consolidate the possibility of providing a delay in payment of compensation, taking into account the materialization of heirs to claim the priority right to obtain the hereditary share of this residential premises Egorova S.G. Legal problems of inheritance according to the current legislation of the Russian Federation: the abstract dis. ... Cand. jurid Sciences. - M., 2002 ..
Thus, it is possible to note the presence of certain gaps in the legislation regarding the protection and implementation of hereditary property. In connection with their presence, problems arise in practice. The solution of such problems is possible with the active attraction of judicial bodies, notaries and legislative consolidation of procedures for the participation of these bodies in the process of inheritance.
In addition to creditors, the protection of their rights and interests could also require the heirs. The need to protect them could arise if someone did not recognize their inheritance rights or if someone had violated his behavior or did not recognize the rights of these persons as heirs.
The heirs were entitled to present the following square:
- inheritance- A Wytrication claim that does not own hereditary property The heir presented to the owner non-delicient, or by challenging the right of the heir, or who issued himself for him, or holding the hereditary property, without pointing out at the same time no title at its excuse. The racketer who conscientiously believed in his right was obliged to issue only the fact that he still had from the inheritance, as well as his enrichment due to the inheritance, but with deduction of costs incurred by him. If the inheritance owner was unfair, he should have issued the plaintiff all of them from the inheritance with all the fruits and increments, as well as be responsible for the guilty death or damage to the obtained values;
- claim for inheritance- A claim that could make a person who is not recognized by the right to inheritance. A person who lost the ownership of hereditary property was responsible for this claim, but received a remuneration for him, which became the subject of the claim. Only inheritance with all increments was returned on the claim for the inheritance, but everything acquired with the help of inheritance;
- pretorian interdict With the help of which the Pretor's heir could protect his rights and gain possession of inheritance;
- singular lawsuit - The claim at the disposal of the testator and imposed on persons who did not dispute the hereditary right of the heir, and did not want to return hereditary property for other reasons or to pay for hereditary requirements.
Later in Roman law, it was possible to carry out the possibility of an inheritance at the unworthy heir, which was subsequently transmitted either to other heirs or in the treasury.
31. IKKI: concept, meaning and types
The lawsuit facing the claimant's claim to the defendant. "The claim is nothing but the right to implement lawsuit The requirement belonging to him "(Digesa). The Romans believed that only the judicial protection of the right gives this right value and completion. Types of lawsuits:
1. Depending on the identity of the defendant:
- real lawsuitthe claim aimed at recognizing the right to a certain thing. A respondent could be any person who visits the right of the plaintiff. (The lawsuit on the extermination of the thing on behalf of which she is in possession).
- personal lawsuit - a lawsuit aimed at fulfilling the obligation to one or more specific debtors (which will be defendants) (claims on the requirement of paying a debt).
2. In terms of volume and objectives, property claims were divided into:
- claims to restore the disturbed state of property rightsin (damage compensation) - the plaintiff demanded the property of the defendant;
- penalty claimsdepending on the private punishment of the defendant. Through such lawsuits, a private fine was charged;
- mixed carrying out and compensation for damages, and the punishment of the defendant;
3. Iska from a good conscience - the judge was supposed to make a decision, guided by the principle of "good conscience", but without leaving the rule of law; and lawsuit of strict right.
4. If the sample of the already existing and adopted in the practice of the claim was made similar to him, then the first straight lawsuit and the second derivative From him.
5. counter The lawsuit made by the defendant the plaintiff for joint consideration with the initial claim;
6. fictitious The claim is the formula of which contains a fiction, i.e., the indication of the judge to attach a certain non-existent fact to cash.
7. arbitration claims - if the judge could not achieve the defendant to issue or present the subject of the dispute, he made a special decision, which determined the amount of damage caused to the plaintiff, guided by the principle of "good conscience and justice";
8. popular IKKI - could make any citizen.