How to draw up a will for a share in an apartment

Author of the article: Anastasia Ivanova Last modified: January 2021 20548

The property rights of Russians to residential real estate are protected by the legislation of the Russian Federation. Having owned a country house, an apartment or a share thereof, the owner can dispose and use his property as he sees fit. Speaking about part of the living space, it should be taken into account that its owner can not only sell, exchange or donate it, but also write a will for a share in the apartment, in the same manner as if he owned the living space in full.

Important nuances

Owners of housing, especially those that have been privatized, in most cases are concerned about the “fate” of their property after their death. To ensure that it goes to the heir whom they have selected from the rest, the testators draw up a testamentary act ensuring the transfer of ownership rights to the apartment to the selected person.

If the testator draws up the document according to all the rules, observing the necessary requirements, then after his death the heir will not have any problems and he will freely receive his share of the residential property. In the absence of a testamentary act, the inheritance remaining after the death of its owner, according to the law, will be transferred in the order of succession. Thus, the inheritance will go not to the heir chosen by the owner of the property, but to the one to whom it legally belongs according to the line of succession.

Expert commentary

Leonov Victor

Lawyer

A will can be drawn up not only between close relatives or people who live with the testator, but can also be bequeathed to any person chosen by the owner of the apartment.

The first version of the testamentary act is inherently inconclusive. The testator has the opportunity to change the text of the document as many times as he deems necessary. The current and legal version of the will is the document whose content has not changed, and the order itself has not been canceled by the testator.

The contents of the will for the share of housing assumes that:

• the property will be distributed after the death of the testator, according to his will expressed in the document;
• part of the privatized residential real estate owned by the testator will pass to the heir after he enters into inheritance.

According to Article No. 1130 of the Civil Code of the Russian Federation, the last version of the testamentary act has legal force.

A document will be recognized as illegitimate if it is incorrectly executed, certified by persons who do not have the necessary authority, and if it was drawn up in an emergency situation, after which the owner of the property remained alive. In the latter case, the “emergency” will will lose its force a month after it is written if it is not properly executed.

How to draw up a will for a share in an apartment

Inheriting a share in a privatized apartment is a complex legal situation. The law establishes a number of requirements for the proper design of an object. In the absence of documents for real estate, the share cannot be included in the inheritance property. Therefore, the heir will have to go to court to prove his rights to it. For timely and lawful entry into inheritance, it is necessary to obtain legal advice. To do this, you can leave a request on the website. A specialist will contact you at a time convenient for you.

The law gives a citizen the right to own both the entire object and a share in it. The most popular is shared ownership of real estate. Owning and disposing of a part is significantly different from owning the property as a whole. Let's consider how to draw up a will for a share in a privatized apartment.

Making a will for a relative

Often, the owners of part of the privatized housing leave their share to precisely those people with whom they are closely related.

The testator can choose any relative as an heir and the order of inheritance will not affect his decision in any way. He will transfer the property to either one or several heirs at once, among whom he will divide part of the property belonging to him. Heirs who have the right to an obligatory part of the inheritance will receive it regardless of whether the testator indicates them in the will or not. This right is guaranteed and strictly observed.

Expert commentary

Gorbunova Olga

Lawyer

To draw up a will, the testator does not need the consent of the other homeowners. He can transfer the part of the apartment belonging to him to the heir without collecting additional consent receipts. Such a receipt must only be obtained if there is a sale or exchange of a share of real estate.

Will for a share in an apartment - how to draw it up in 2021

There are open and closed wills. The contents of a closed will are a secret for all heirs, as well as for the notary. If the text of the will is written down from the words of the testator, then he must familiarize himself with it in the presence of a witness. Only adult citizens can make a will.

A citizen has the right to bequeath to his heirs an entire apartment or shares. If a citizen wants to bequeath his share, for example, then he needs to know that drawing up a will is possible without the consent of other owners of shares in this apartment. The rules for inheriting all property or its shares are the same. If a citizen plans to bequeath his share in an apartment, then the share can be bequeathed either to one person, or to several persons, or a part of the entire share. If the apartment has been privatized, then there are nuances when inheriting a share according to the law.

Types of testamentary instrument

A will can be either closed or open. In the first case, no one knows what is indicated in the document. The contents are kept secret both from the heirs and from the notary who will certify the document.

If the testator cannot come to the notary’s office in person because he is in a nursing home, is in a hospital, or is in military service, then the rights of a notary can be transferred to an authorized person, who can be a doctor, a unit commander, or others.

In the event of emergency situations, the testator can draw up orders regarding his property independently. However, when writing it, two witnesses must be present.

How to draw up a will for a share in an apartment

Not only a relative, but also any other citizen (army comrade, first love or charitable organization) can act as an heir under a will. Regardless of the existence of an order, the share must be allocated to the obligatory heirs. These are dependents, disabled spouses, offspring, parents.

Having property rights, the testator can register without the participation of a notary. This is allowed only in a situation where a person cannot visit such a specialist due to being in a hospital, in prison, or on an expedition/flight. In this situation, the validity of the document can be confirmed by the head physician of a hospital, the head of a prison, the head of an expedition, the commander of a unit, the captain of a ship, the head of a home for the elderly or disabled.

The process of making a will: Procedure

A testamentary act for a share in an apartment is drawn up in accordance with legislative norms.

The document includes the following points presented:

• personal data of the testator;
• date of birth;
• residential address;
• passport data;
• information about housing;
• personal data of the heir/heirs;
• date of preparation of the document.

Expert commentary

Shadrin Alexey

Lawyer

If at least one of the listed points is missing, this will give any of the “deprived” heirs the opportunity to challenge the order in court.

According to Article No. 1130 of the Civil Code of the Russian Federation, the testator can change the text of the document or completely cancel it.

A will will have legal force in the following cases:

• writing a testamentary act personally by the testator and having the document certified by a notary;
• providing the notary with a complete package of documents;
• availability of two copies of the order. One is transferred to the notary for safekeeping, and the second remains with the testator.

Expert commentary

Potapova Svetlana

Lawyer

If the testator does not know how to correctly draw up a document, in order to avoid mistakes and problems with the legitimacy of the order in the future, he should seek help from a specialist who will help draw up a will in accordance with legal norms, making it practically undeniable.

What are the pros and cons of a will for an apartment?

In order for heirs to take ownership of the real estate bequeathed to them, the law allows exactly six months. Missing this deadline may result in deprivation of rights to inheritance. Even if the reasons are valid, you will have to go to court to restore your rights.

• the ability to change the text or cancel the will;
• preservation of ownership of the living space during his lifetime: the testator can live in the apartment, rent it out under a lease agreement, and, if necessary, sell or donate it (the rights of the heirs in this case are canceled);
• the testator can set additional conditions for the heirs: oblige him to take care of pets or establish a circle of people who retain the right to live in the apartment after his death.

Documents for registration of a will

When faced with the need to draw up a will, the testator is faced with the question of what documents are needed to formalize the disposition. To draw up a testamentary deed, the notary should be provided with a package of documents consisting of:

• passports;
• a document confirming ownership rights to the testator's share of real estate;
• agreements on the allocation of a part in the common property.

Other certificates may also be required, which the notary office employee will inform you about additionally.

Property is transferred to a relative

In the will, you can indicate relatives as recipients of the apartment. If the inheritance is divided according to the law, only relatives participate in the division procedure, and those closest to them have priority. For registration, you must submit an application to a notary. If this step is ignored, inaction will be regarded as a voluntary refusal. Claims must be made within six months after the death of the apartment owner. Missed deadlines can be reinstated in court only if there are valid, documented reasons.

This is important to know: Residential privatization agreement: sample

Is the degree of relationship taken into account?

When distributing shares of an apartment according to the law, this is a fundamental principle. The first applicants are immediate relatives, which include children, parents, and spouses. If they are not there, or a refusal is written, the others are called up in order of priority. When entering into rights under a will, kinship does not matter.

Do I need to obtain consent from other relatives?

This is necessary when completing certain types of transactions. It is prohibited to sell an apartment in which several people live without the consent of all residents. Also, you cannot give it as a gift or change it; there is at least one tenant who does not want this. Inheritance is another matter. Consents of cohabitants are not needed for a will, but the text can only refer to the share belonging to the testator.

Cost of registration of a will

Without exception, all notary services have a certain price tag, established in accordance with Article No. 333 of the Tax Code of the Russian Federation. The same applies to making a will. The legal part of the service in 2018 will cost 100 rubles. This amount is charged for certification of the testator's signature. If he needs any other specialist services, he will need to pay an additional amount for them. At the moment, the average cost of drawing up a will is considered to be about 1,000 rubles.

Knowing all the pitfalls of the process of drawing up a will for a share in an apartment, the testator will be able to avoid all possible problems with documents, minimizing the possibility of challenging it.

Sample will

With your passport and property title documents at hand, you can begin writing your will. Samples that are publicly available will be a good help. It is worth taking the help of a lawyer to correctly formulate the requirements and conditions, using legal terms and formulations. The main task at this stage is to formalize the inheritance of the apartment in such a way that no one can challenge the inheritance of the apartment by proving that the will is invalid.

Required attributes

If at least one of them is missing, this is considered a gross violation of the rules for drawing up a will. The expression of will is invalid without:

1. Dates and cities of the event.
2. Document titles.
3. Details of the testator.
4. Information about successors.
5. Definitions of shares.
6. Personal signature of the owner.

Only your own share in the apartment is inherited. It is prohibited to dispose of the property of third parties; this is regarded as a gross violation of current legislation.

Registration requirements

There is no single template, and it is believed that the form of a will is free. However, the general rules for drafting formal legal documents apply to the text. Spelling and stylistic errors are unacceptable. Typos do happen and do not play a key role in the interpretation of a will, but sometimes irregularities in punctuation lead to discrepancies, which makes it possible to challenge the terms of inheritance. The writing style is dry, without lyrical digressions. It is also not worth explaining the reasons for the decisions made.

To avoid conflicts during disclosure, refer in the text to the current articles of the laws that served as the basis for the transfer of the apartment to selected persons. Check that all successors are legally competent.

What should be in the text?

There will always be a disagreeing, offended, deprived relative who is trying to cancel the will and take possession of the apartment. Therefore, be sure to indicate in detail:

1. Passport details of the person issuing the registration.
2. Accurate data on successor citizens.
3. Information about the apartment (address, size of rooms, etc.).
4. Data on the shares due to each heir.

Notary mark is required. This is the registration number, signature, details of the notary's office and the original seal. The pages are numbered, the sheets are stitched, stapled, and sealed.

Should the mandatory share be taken into account?

This is allowed, but not considered mandatory. If this is not done, the obligatory heirs will still receive their due share of the inheritance, even if it is part of the apartment. But if you foresee the situation, in order to avoid disputes between successors, indicate them in the will. But if over time more people appear who fall under this category, they will be called to inherit after the opening of the inheritance case.

List of compulsory heirs

Such applicants fall into three main categories:

1. Minor children . Previously, legitimate children were taken into account. Now even an illegitimate child has the right to apply for an apartment. The same applies to adopted persons.
2. Disabled parents . The reason is poor health, documented, or advanced age.
3. Dependents . These are disabled people who are dependent and provide financial support to the testator during his last year of life. Living in an apartment is not necessary.

Any person from the group of these persons will receive their share, even if the inheritance is an apartment that is indivisible in kind. You just need to declare your rights by writing a statement to a notary.

How is the inheritance share divided taking into account this category of persons?

The sequence of property distribution is as follows:

1. From the amount allocated without a will, a mandatory share is allocated.
2. If it is not enough, the deficiency is compensated by part of the apartment provided by the will.
3. The remainder of the bequest is transferred to the designated successors.
4. Property not specified in the will is distributed in equal parts among the first-priority heirs from among the relatives.

In any case, persons in need of social protection from among the beneficiaries of inheritance will receive their due share.

This is important to know: Criminalization of property relations in the process of privatization

Procedure for document execution

If a property owner wants to make a will for a share in a privatized apartment, then he needs to prepare a package of documents that a lawyer needs as a legal basis for drawing up the document.

You need to bring with you:

• your own passport, which must contain all the marks and stamps;
• certificate of ownership of real estate (its share, room, square meters);
• technical documentation for the living space (technical and cadastral passport, receipts for payment of shares and loan repayment);
• a certificate from a psychiatrist and narcologist about the patient’s health status at the time of drawing up the will of the privatized apartment.

After checking the availability and authenticity of the papers, the document itself is printed. One copy remains with the notary, the second is given to the testator.