Will for an apartment: pros and cons, registration procedure, transfer of rights

After the death of a person, his property passes to other persons (by will or by law). The question of how best to formalize an inheritance is quite relevant, since in most cases the property includes real estate and other expensive objects. In turn, this is associated with some financial costs and expenses.

On the one hand, you can transfer an inheritance only with the help of a will, but if you look at it from the other side, you can sometimes resort to the institution of donation. It is worth identifying the key differences between the two agreements, this will allow you to understand when correct application is possible.

Who can be a testator?

Any citizen can make a will provided he has full legal capacity and is of sound mind. These parameters should be the key ones for the notary certifying the document.

In this case, the age characteristics of population groups are taken into account:

citizens over 18 years of age have the right to dispose of their property, including bequeathing it;
for persons over 75 years of age, the notary may request a medical certificate confirming their legal capacity;
Teenagers between the ages of 14 and 18 can only make a will with written consent from their parents or guardians.

A will can be made by one citizen or together with a spouse who is married on the date of drawing up the document. But it is important to take into account that a joint will after divorce is declared invalid (clause 4 of Article 1118 of the Civil Code).

Making a will through a representative is not allowed!

Features and nuances

A child can be bequeathed the entire residential property or a percentage share. The will must indicate the exact address, parameters and dimensions of this apartment.

It is unlawful for one of the parents to bequeath the entire apartment to a child - the mother alone or the father alone - if the property was acquired during marriage. The rule regarding the compulsory marital share comes into force, which is allocated to the second spouse to the detriment of the heir. This should be taken into account when drawing up an inheritance act, bequeathing only your part of the common property.

Drawing up a will for minor children is the best way to take care of their well-being in the future. In our country, the will of property is only just beginning to become a culture, although such a practice existed in pre-revolutionary Russia and was generally accepted.

Who can be the heir?

The Civil Code in Article 1116 establishes a list of persons who may be heirs:

citizens who are alive at the time of opening of the inheritance, regardless of the fact of relationship with the testator;
persons conceived during the life of the testator, born after the inheritance was opened;
legal entities that are listed as active on the day the inheritance is opened (not deregistered as a legal entity);
Russian Federation, its constituent entities, municipalities;
international organizations and foreign states.

Is it possible to challenge the will of the deceased?

The law establishes a certain period during which citizens dissatisfied with the testator’s decision have the right to challenge the will. However, experts recommend not delaying this procedure and starting legal proceedings before six months have passed since the death of the citizen who left the apartment .

In other cases, the rules are as follows: if there are suspicions that the will was not drawn up according to the rules, or there were doubts about the inadequacy of its drafter, then the period is three years. If threats or other types of influence were used to write the will, then the period is one year.

It is possible to challenge a will after the death of its maker if the applicant presents evidence and goes to court in time.

How to correctly draw up a will for an apartment in 2021?

When drawing up a document, a citizen has the right:

bequeath property that belongs to him or will be acquired. It is important to accurately formulate its parameters. In particular, for the apartment you must indicate its address, brief characteristics, cadastral number;
list in the will the circle of persons to whom the apartment will belong after death, establishing the share of each;
establish the deprivation of the right of inheritance of heirs by law by ordering in the text of the document or distributing shares in the property only to other persons;
assign and establish powers to the executor of the will;
assign the obligation to the heir to fulfill the will of the testator in relation to certain persons. For example, give the opportunity to live in an apartment for a certain period of time;
oblige the heir to perform actions, for example, burying the testator.

The will must be executed on paper in your own hand. It is permissible to compose the text on a computer and print it out, signed by the testator in his own hand. The presence of unspecified corrections and pencil execution of the text is prohibited.

What is the difference between a gift of property and a will?

Donation (donation) is a transaction concluded between two persons, the purpose of which is the free transfer of certain property from 1 to 2. In this case, the recipient does not matter - absolutely anyone can receive a gift.

A will is a unilateral agreement that determines the fate of the entire inherited mass (items, property, rights and obligations) upon the death of a person. In drawing up the text of a will, a person can independently and completely determine the fate of his property: divide it among all or among one.

Now it’s worth identifying the main differences associated with each method:

Time spent on performing all legally significant actions:

When drawing up a gift agreement, a package of documents is first prepared and key conditions are discussed. After that, payment of the state fee and final signing with the transfer of documents for state registration are required.

ATTENTION !!! The entire procedure from start to finish takes no more than 3 weeks;

The execution of a will is carried out at any time and depends only on the will of the person. The execution of a will can be ordered after the death of a person, or upon entry of a court decision declaring the person dead. The certificate is issued after six months from this moment;

Transfer of ownership of property:

after the completion of the contract registration process, all specified property passes into the ownership of the donee. The moment comes in the life of the first. And the effect of an unfulfilled obligation terminates with the death of the person.
transfer of the hereditary estate is possible only in the event of the death of a person; other options are not provided for by law. To do this, the heir will have to perform certain actions;

Making changes or canceling the contract:

When making a donation, all the nuances and conditions are discussed at the conclusion stage.

IMPORTANT !!! After the state registration and transfer of ownership to a new person, it is almost impossible to challenge the transaction.

This is only permissible through recognition by the court, if it can be proven that at the time of the actions the donor was insane or incompetent, or was under physical/mental pressure;

According to the principle of freedom of will, every person has the right to freely dispose of his rights. Once a will is made, it can be amended any number of times. The testator has the right to completely cancel what he wrote. The law does not limit a person’s will in his will in any way;

Processing and registration costs:

To register a gift deed, you will need to pay a state fee. Its size changes and you can see the current amount in the Tax Code of the Russian Federation. The gift agreement is drawn up in simple written form; the law does not require mandatory notarization;
registration of a will is expensive, since you will have to incur costs in several areas: assessing the value of the total property, issuing a document on the right to inheritance, and conducting the case before registration. The law also provides for mandatory notarization of a will. If this requirement is not fulfilled, it cannot be recognized as a valid will. The costs will be borne and divided between the testator and the heir;

Taxes and other fees:

Property received as a gift is recognized as the person’s income, so the recipient will be required to pay personal income tax in the amount of 13%. An exception will be if the donor and recipient are close relatives - then payment of tax will not be required;
Since 2006, inheritance is not subject to taxes. The heir will have to pay fees and possible financial obligations of the testator.

Consequences:

It is almost impossible to cancel the consequences of a gift agreement and the donor will have to answer for the obligations. What acts as a guarantor for the other party;
in the case of a will, most of the privileges are granted to the testator: until his death, he can make any changes to the text of his document and there is no liability to other persons for this.

It is worth noting that inheritance is also associated with the concept of a mandatory share. Its essence is that, regardless of the desire and will of a person, part of his property will be transferred to a separate category of heirs. This category includes: disabled and incompetent parents, minors, dependents under the care of the testator.

ATTENTION !!! The only case in which these persons will be deprived of their right to inheritance is if they commit such actions aimed at prematurely opening the inheritance, changing their share, or the share of other participants, and some other actions. In this case, they are called “unworthy heirs” and are excluded from inheritance by law, but the citizen can forgive by expressing his will in a will.

The size of this share in the inheritance mass is determined based on the provisions of the Civil Code of the Russian Federation: not less than half of the share assumed by the heir by law.

What is the most profitable way to manage the fate of property: by will or by gift? There is no clear answer to this, since each case is beneficial in its own way. Donation is the fastest and safest way for the recipient to acquire property rights, and it is possible, for example, during the lifetime of the parents. It is extremely difficult to cancel a registered gift deed. A will represents the safest option for the current owner of the property: his will is not limited in any way, and the property will be completely safe.

Contents of the will

The document must contain the following information:

in words in full the date of compilation, as well as the name of the locality where it is made;
testator's data (full name without abbreviations, date of birth, passport details and exact registration address);
a list of property (the name and individual characteristics of the apartment should be indicated, making it possible to identify it);
Full name without abbreviations, date of birth of the heir;
other orders related to the right to inherit an apartment in the event of the death of the heir or his refusal to accept the inheritance, as well as the duties that the heir must fulfill;
information that the notary explained the content of Article 1149 of the Civil Code of the Russian Federation;
the number of copies of the will, where they are stored, as well as other features related to the preparation of the document;
information about witnesses, if they are present at the citizen’s expression of will;
personal signature of the testator;
signatures of witnesses (if they are named in the document).

Deadline adjustment

Article 1154 of the Civil Code of the Russian Federation talks about how to determine the deadline for entering into inheritance powers. The law previously stipulated that citizens claiming property must visit a notary's office within six months. It begins to count from the moment the owner died. Currently, six months are initially allocated so that the heirs of the first group can formalize their rights. If they did not apply to the notary or refused the property estate, then after this time the next person in line has the opportunity to claim the estate. For each category of legal successors, a period of six months is now set.

The new rules indicate that when forming an inheritance agreement or when forming funds, the rights of ownership of the estate are transferred much earlier. For example, powers are transferred within a few days. Such provisions are especially important for those who own a business. This is necessary so that the company does not cease to function. A citizen always has the opportunity to use the standard option of dividing the property mass.

Procedure for registering a will through a notary

The algorithm of actions of the testator when drawing up an administrative document is as follows:

1. Draw up your will yourself or print it out. Sign with your own signature. It is allowed to draw up the will of the testator by a notary by recording it.

2. Invite witnesses if necessary. A witness may be required:

if the testator is unable to sign the document due to illiteracy or physical illness. Then, at his request, the will will be signed by the executor in the presence of a notary;
there is a language barrier between the notary and the testator and it is impossible to do without a translator;
the testator requests the presence of a witness;
The closed will is handed over to the notary.

3. Notarize the document. This is a mandatory condition for giving the will legal force (clause 1 of Article 1124 of the Civil Code). If a will is drawn up by a notary from the words of a citizen, then before signing the text must be read by him in full or read out by a notary. The date and place of certification of the will are indicated.

How to find out whether the living space was bequeathed?

Finding out about the existence of a will is problematic today. This is due to the fact that the witnesses who were present when it was drawn up, as well as the notary, must keep this information secret.

Important! The will is kept in two copies, which are kept by the testator and the notary. If you find one of them, then you don't have to worry about inheritance.

Recording of the document is not provided for in any state register, so if the heir misses the deadline for entry within six months, then the property will go to the closest relatives of the deceased person.

First of all,
you need to look for a document in the apartment where the deceased person lived .
Most often, relatives, aware of the presence of other applicants for the apartment, try to hide the document. The next way to find out whether an apartment has been bequeathed to someone is to contact a notary . Usually all offices located at the place of residence of the testator are checked. However, this does not mean that he could not write it in other notary offices.

Where can I make a will?

Any notary can certify a will, regardless of the place of residence of the citizen expressing his will regarding the property. In a number of cases prescribed in Art. 1127 of the Civil Code, a will can be certified by:

the chief physician of a hospital hospital, a home for the elderly and disabled, if the testator is undergoing treatment there;
captain of a ship while sailing under the Russian flag;
leaders of expeditions, Arctic stations during the period the testator was there;
commander of a military unit, if the unit is located in a populated area where there are no notaries;
head of the correctional facility.

In this case, the will is signed in the presence of a certifying person and a witness. Then it must be sent to the notary at the place of residence of the testator through the territorial federal executive authorities in the field of notaries.

If there is a will, who is legally entitled to the deceased's inheritance?

In this case, the defendant-brother has the status of a disabled person, based on which, according to the law, part of the inherited property should go to him. Also, in addition to these children, the deceased man left two able-bodied sons, who were not discussed in the text of the will.

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Let's simulate a situation: a citizen goes to court, in whose favor, according to her father's will, the entire volume of his fortune (car, apartment and dacha) should go. This citizen files a claim for deprivation of the compulsory share of her brother, aged 62 years.

How to bequeath housing to children and protect them from other heirs?

So, if there are many applicants for the inheritance and you still consider a will not a very reliable way to carry out your will, you can draw up a deed of gift. As explained by IntermarkSavills legal adviser Anton Ladygin , an alternative way to register housing for a child, in addition to a will, is a gift agreement or deed of gift. “However, the difference between these methods is very significant, since a deed of gift for an apartment makes the heir the owner of the apartment from the moment new state registration documents are received for it. And, accordingly, the donor automatically loses all rights to the apartment by signing the deed of gift,” the expert explained. – When drawing up a will, the heir receives the apartment only after the death of the testator. A deed of gift can be legally formalized only once; a will can be rewritten. It is drawn up in simple written form and is subject to mandatory state registration. If both parties to the gift agreement for objective reasons cannot be present at the execution of the agreement, then relatives or friends can do this, while the will must necessarily be drawn up personally.”

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Typically, a notary can be called to your home or hospital to draw up a will. However, in very urgent cases, instead of a notary, the will can be certified by the head physician of the hospital - this is allowed by law, although it happens extremely rarely. According to Elena Somuseva, the head physician may refuse to certify a will if he doubts the patient’s adequate perception of reality.