How is the inheritance divided if there is a will?

Domestic legislation allows two ways of dividing inheritance. The first presupposes the existence of a will with the distribution of property according to the will of the testator. The second option is used in the absence of such a document and is called inheritance by force of law. Its main principle is the distribution of property in accordance with the order of heirs. The laws governing this procedure are relatively complex. Therefore, the question of how the inheritance is divided between the first-line heirs is rightly considered one of the most pressing. The detailed answer is contained in the article.

How to divide an inheritance between first-line heirs: basic rules

The rules of inheritance in force in Russia are regulated by the provisions of two basic documents. The first is the Family Code of the Russian Federation (put into effect after the adoption of No. 223-FZ of December 29, 1995, the current version was approved on February 6, 2020). It defines the principles of kinship, which play a key role in determining the order of inheritance under the law.

The second document - Part 3 of the Civil Code of the Russian Federation (came into force after the signing of No. 146-FZ of November 26, 2001, the current version was adopted on March 18, 2019) - directly determines the procedure for inheriting property. Chapter 5 of the legislative act is entirely devoted to its description.

Chapter 61 of the document is devoted to a description of the general principles of inheritance. The other two chapters - 62 and 63 - describe the procedure for inheritance by will and by law, respectively.

According to the provisions of the RF IC and the RF Civil Code, priority means the order of inheritance by law, determined taking into account the degree of relationship in relation to the testator. Therefore, the concept is used primarily when there is no will.

How is inheritance divided according to law?

Very often it is difficult to determine heirs, since many controversial issues arise that need to be resolved as quickly as possible.

First of all, it is necessary to search for a testamentary document; if there is no such document, then the inheritance process will take place according to the law, and, therefore, in accordance with the degrees of relationship of the heirs in relation to the deceased owner of the property transferred to the estate.

Based on the laws of Russia, there are 7 stages of inheritance, however, the primary right applies to spouses, children and parents of a deceased citizen.

It is necessary to understand that spouses can claim the inheritance of the second spouse only if they are officially married at the time of the spouse’s death; if there is a divorce document, then the second spouse does not have the right to inherit in relation to the property of the first spouse.

It is necessary to understand that a common-law spouse in the legal sense is not the status of a citizen, which allows one to enter into the division of inherited property after the death of the so-called common-law spouse.

You need to understand that immediate relatives have equal rights to inherited property after the death of the testator. However, the spouses first receive half of the jointly acquired property, then exclude personal property from the inheritance mass, and only then enter into an equal inheritance in respect of the second half of the jointly acquired property and the personal property of the deceased spouse.

That is why citizens have the false opinion that it is the spouses who are the heirs who receive the majority of the inheritance when dividing the property left by the deceased citizen.

You need to know that a citizen’s personal property includes things and property acquired before marriage, property received free of charge as a gift or inheritance during marriage, and items for personal use.

It is these objects of property that remain with the spouse when determining the composition of the inheritance mass after the death of the second spouse. But the personal property of the deceased spouse is subject to equal division between the heirs of the same line of succession.

To give an example, it is worth considering the situation of joint ownership of residential premises by spouses. If the house was built by spouses with joint financing on an equal basis, then you need to understand that after the death of the husband, for example, the wife will legally receive exactly half of the living space, and their only child will receive 50% of half of the spouses’ joint property.

As a result, the child will receive a quarter of the property transferred by the testator in favor of the immediate family.

Regarding the rights to inheritance by children, it is necessary to understand that all children have equal opportunities:

Children who were born in a legal marriage;
Illegitimate children whose parent is only one of the spouses;
All children related to the deceased citizen and adopted by him at any period of his life;
Children who were conceived by the testator until the moment of death and those not yet born.

Both parents of a deceased citizen have equal rights with the rest of the heirs from the immediate family. In this case, the parents may be blood or adoptive parents of the deceased testator. If the parents of the deceased testator were deprived of parental rights by a court decision, then they do not have the right to enter into the inheritance of their deceased child.

If the testator does not have legal successors of the first stage of inheritance, legal rights are transferred to citizens of the second stage, which includes the brothers and sisters of the deceased. If the legal heirs did not have time to enter into law, then their children have the opportunity to inherit the property by right of representation.

Next come the third-degree relatives, which include the testator's grandparents. They are followed in their rights by the participants in the fourth line of inheritance, to which the law classifies the uncles and aunts of the testator or testator, while the testator’s cousins can act as heirs by right of representation.

After all relatives who have a lower degree of kinship in relation to the deceased, the participants in the seventh line, which include stepmothers, stepfathers, stepdaughters and stepsons, enter into the right of inheritance.

In order to understand the principle of determining the degree of relationship, you need to know the number of births that separate the heir from the testator.

According to this principle, it is possible to clearly determine which relatives belong to which line of inheritance.

The following relatives are involved in inheritance, in accordance with the above-written principle of forming kinship queues:

The law considers great-grandparents to be relatives of the third degree;
The fourth degree should include cousins and granddaughters, great-uncles and grandmothers;
Relatives in the fifth generation are considered to be cousins' great-grandsons and great-granddaughters, cousins' nephews and nieces, as well as cousins' aunts and cousins' uncles;
The sixth line of inheritance includes first cousins and great-granddaughters, second cousins and grandsons, and second cousins.

In case of inheritance of relatives of the same line, the shares are distributed equally among the legal successors. If the situation is such that there are no relatives in the line of succession, only then the right to inherit passes to the next line of kinship. And all lower-ranking relatives do not have the right to inherit if at least one heir from the higher lines is alive.

You need to understand that after an equal distribution of shares by a notary, the heirs themselves have the right to draw up an agreement in writing on the redistribution of shares by agreement of all parties. The only condition is that the rights of each heir and compulsory heirs cannot be curtailed.

How to divide the inheritance after the death of the father?

How to divide the inheritance after the death of your husband, read here.

Read about the inheritance of a child after the death of the father at the link:

Division by will

Every citizen has the right to bequeath his own property to whomever he sees fit. To do this, it is enough to properly draw up a will. It can be canceled or adjusted at any time at the request of the testator. There are three main requirements for the document - preparation in writing, notarization and the personal signature of the testator.

Despite the right of the testator to independently decide the fate of his property, participation in the inheritance of certain categories of relatives is additionally ensured. The protection mechanism involves the separation of the so-called obligatory and spousal shares.

Mandatory

It represents half of what the heirs were legally entitled to receive, regardless of the contents of the will. In such a situation we are talking about the following persons:

children of the testator until they turn 18 years old;
adult children who are unable to work due to poor health;
disabled first-degree relatives or dependents.

In each of the listed cases, the right to inheritance must be proven documented. For example, incapacity for work is confirmed by a medical certificate, minority - by presenting a birth certificate or passport.

Marital

An analysis of the legal framework in force today allows us to draw an unambiguous conclusion: property acquired during marriage is divided equally between spouses. Therefore, in the event of the death of a husband/wife, regardless of the presence or absence of a will, half of the joint property must go to the second spouse. This rule does not depend on how the inheritance is distributed among the remaining heirs.

A change in the size of the marital share - both up and down - is possible in several cases clearly specified in legislative acts:

signing a marriage contract defining the rights of the spouses, including inheritance;
presence of a common minor child;
waste of family property or lack of income generated by the deceased during the marriage.

What is needed to divide an inheritance through court?

If there are disputes between heirs, it is necessary to file a claim for division of inherited property. The procedure for dividing inheritance through the court assumes that the judge will consider the arguments of all parties and allocate the share of each heir in accordance with the law. A common reason for going to court is to challenge the priority right of one of the heirs. The statement of claim for division must comply with the norms of the Code of Civil Procedure of the Russian Federation, and all documents confirming the right to inheritance must be attached to it.

Division without a will (by law)

Making a will significantly simplifies the decision on how to divide the inheritance between the relatives and friends of the deceased. Inheritance by law is somewhat more complicated, and therefore is often accompanied by conflicts and controversial situations that arise even between close relatives.

The basic principle of inheritance without a will is quite simple. First, the inheritance is distributed among the first-line heirs. Only in their absence does the right to inheritance pass to persons included in the 2nd and all subsequent stages, up to the last, seventh.

Heirs of the 1st stage

The circle of 1st order heirs is extremely limited. These include:

children. It does not matter whether the case concerns a natural child or an officially adopted one. An illegitimate child can also become a first-degree heir, for which he will need to document the relationship using genetic testing. The presence of an unborn child of the testator leads to the impossibility of distributing the inheritance before his birth;
husband wife. The only mandatory condition is the presence of a marriage that is officially registered. Wedding or civil marriage are not grounds for including a spouse in the number of heirs of the 1st priority. A divorce carried out before the opening of the inheritance means the inability to take part in the division of the property of the deceased husband or wife;
parents. The category of heirs under consideration includes both the natural father and mother, as well as the official adoptive parents. Parents whose parental rights have been taken away by a court decision do not have rights to inherit by law;
dependents. The condition for obtaining inheritance rights is confirmed dependent status for at least a year. In this case, the place of actual residence of the person does not matter.

Important
. If there is a death of one of the heirs of the 1st stage - together with or before the testator, his place in the procedure for distribution of property by right of representation is taken by his descendants. A typical example of such a situation is a grandson receiving his grandfather's inheritance instead of his deceased father.

Rules for distribution of inheritance

The answer to the question of how to divide an inheritance according to the law requires taking into account many related factors. The procedure provided for by the legal framework is somewhat more complicated than in inheritance under a testamentary document, so conflicts and disputes in such a situation can hardly be called a rare occurrence.

For example, the distribution of inheritance among first-priority heirs takes into account the marital share, the definition of which is given above. In addition, it is important to remember that heirs have the legal opportunity to independently distribute shares of the inheritance and sign a settlement agreement on this. The main requirements for a document in such a situation are the fulfillment of two mandatory conditions: the consent of all heirs of the 1st stage and notarization.

The third complicating factor is the possibility of legal challenge by one of the heirs not only of his own share in inheritance by law, but even of the provisions of an officially drawn up will. The basis for filing a claim may be non-compliance with the rights of owners of a mandatory or marital share, doubts about the authenticity of the document, etc.

Considering the above, it becomes clear why the issue of distribution of property often becomes extremely painful even for first-line heirs, most of whom are close relatives. The legal procedure for dividing inheritance requires compliance with the following principles:

First of all, the marital share is removed from the testator's property. Property received by the wife or husband is excluded from further inheritance procedures;
the remaining inheritance is distributed equally among the heirs of the 1st stage, including the wife or husband who received the marital share;

if there is one heir of the 1st stage, he receives all the property. The only exception to this rule is that a dependent cannot inherit more than a quarter of the testator’s property;
heirs by right of representation receive the share of the deceased heir of the first priority and divide it equally;
when dividing indivisible property (furniture, car), it is either sold with the subsequent distribution of funds according to the above rules, or transferred to one of the heirs of the 1st priority with the payment of monetary compensation to the others.

Algorithm of actions for inheritance by law

Sometimes it happens that the heirs receive one indivisible thing, although there are several heirs themselves. In any case, the notary issues them a certificate of inheritance. In this case, the shares and the order of use of the thing are indicated. This also applies to inheritance by law. The heirs themselves can agree on the procedure for use. Or through the court if any dispute arises.

Sometimes things included in the inherited share can be divided. Then everyone gets an equal share.

If someone does not want to enter into an inheritance, it is necessary to issue a notarized refusal . Or refuse in favor of another relative, regardless of the queue.

You can refuse not only the entire inheritance, but also part of it. The main thing is to verbally agree in advance with the others to make changes to the share. Or draw up an agreement, certified in writing by a lawyer.

The inheritance opens on the day of death. Or on the day when the person was declared dead in court. From the date of opening of the inheritance, close relatives can accept their share within a maximum of 6 months . This period can be restored only if the reasons for missing it were valid.

Each relative of the testator belongs to one or another line. Disabled dependents and minor children are always entitled to a share, regardless of the order of inheritance. The main requirement is to be in the care of the deceased for at least 1 year before death.

Time frame for the procedure

Registration of inheritance occurs six months after the death of the owner of the property. There are 3 situations in which the specified time period can be changed:

the period is counted not from the date of death, but from the moment the testator receives the status of deceased or missing by a court decision;
the heir has a reasoned basis to explain the missed deadline for entering into inheritance established by law. In such a situation, he can restore his own rights in one of two ways - by applying to the judicial authorities or through an out-of-court procedure. The second option requires the consent of all other heirs;
the heir is an unborn child who can inherit after birth.

In the absence of heirs of the 1st stage, the rights listed above pass to the representatives of the 2nd stage. In this case, the period allotted for entering into inheritance, which is equal to 6 months, begins anew.

Preemptive right to indivisible things

Some heirs have some advantages when dividing property. This concerns the right to things and property that are physically impossible to divide among all claimants. You can receive this item as your property:

Heirs who have a common right of ownership jointly with the testator;
Heirs who constantly used the property during the life of the testator, in the absence of persons who were the owners of this property together with the testator;
Heirs living in an undivided residential premises, if they lived there before the death of the testator and do not have other housing. They also have the right to claim real estate only in the absence of persons who are the owners of this residential premises together with the testator;
The heir who lived with the testator has a priority right to household items and furnishings.

These persons have the right to waive their preemptive right. In this case, the general rules for the division of inheritance apply. If one of the heirs uses his preemptive right, the rest must receive compensation in accordance with Art. 1170 Civil Code of the Russian Federation. The disproportion of shares in the inheritance is eliminated by transferring to the remaining heirs part of the property from the estate or by paying them the commensurate value of their share of monetary compensation. If the heir claiming the predominant share cannot compensate the rest for its value, the court has the right to refuse to transfer the property to him in full.

Features and rules of refusal of inheritance

The right of inheritance is voluntary. To refuse to participate in the division of property, it is enough to use one of two methods. The first provides for inaction in matters of registration of inheritance for six months. As a result, the testator's property will be divided without the participation of the heir.

The second option is to issue a written refusal. To do this, the easiest way is to contact a notary handling the inheritance case. The heir must submit a corresponding application and have the document certified by a specialist. In this case, it is possible to transfer your share to one of the other heirs.

Inheritance by will after the death of the mother

The mother can draw up a testamentary document in writing, in which she has the right to describe all the necessary conditions for taking ownership of specific types of her property, and can also draw up a list of heirs and a list of property that will go to each heir.

A feature of a will is the right of the testator to transfer property after death in favor of any citizen, legal entity or even the state. There is no connection by relationship; the owner of the property can dispose of the property at his own discretion and according to his personal beliefs.

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Often, a mother may make a will to exclude a specific relative from the heirs for personal reasons. The testator must take into account only the interests of the obligatory heirs when drawing up the document, since their rights and obligatory share will in any case be provided to such heirs. Therefore, it is better to mention compulsory heirs, if any, in the will, and determine in advance their share in the total composition of the inherited property.

If the share of compulsory heirs is not taken into account, then close relatives who are unable to work due to age or disability will be able to receive 50% of the estimated legal share of the inheritance in court.

The mother must draw up the will clearly so that there is no situation of discrepancy, since the heirs have the opportunity to turn to the notary for clarification of the meaning of the text of the will. The notary may interpret the text differently and assign greater rights to interested relatives.

The mother's will can be challenged in court by any heir or declared void on the basis of Art. 1131 of the Civil Code of the Russian Federation. The court may invalidate the entire document or several clauses, preserving the remaining provisions in the will as valid.

The testator has the opportunity to include the following points in the text of the document:

To force an heir to fulfill an obligation, the value of which does not exceed the value of the successor's share, such an action is called testamentary refusal;
To oblige the heir to perform a generally beneficial action, using the money allocated by the testator for such an action, such an action is called a testamentary assignment.