Testamentary refusal

What is a testamentary refusal?

A testamentary legacy (legate) is a property obligation assigned by the testator to the heir in favor of third parties, who are the legatees. It is fulfilled within the limits of the value of the property passing to the person.

If he has the right to an obligatory share in the inheritance, determined by Art. 1149 of the Civil Code of the Russian Federation, then it is preserved, and the transferred obligations are fulfilled for the remainder of the value of the property.

Art. 1137 of the Civil Code of the Russian Federation states that a testamentary refusal is the wish of the testator, personifying the obligation of the heir to resolve his property issues in favor of other persons. It is a certain condition for acquiring part of the property during the inheritance process.

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Svetlana Samoilenko

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The law provides for the possibility of obliging a citizen to fulfill obligations in relation to several people at once. These can only be those people who have the right to demand that the successor pay the property obligations of the deceased citizen.

The maintenance of the legacy has an obligation that the heir will have to fulfill when accepting the property within the framework of the law. It acquires legal force, that is, it becomes valid only after the order with it is approved by a notary.

Only the successor fulfills the obligation, which cannot exceed the value of the property he inherits. The process begins at the end of the inheritance procedure.

Thus, legislative removal implies the possibility of the heir fulfilling property debts to other people after the death of the testator.

Example of a testamentary refusal

Obligatory refusal in the practice of inheritance law occurs often, for example:

Examples of testamentary refusal

A man executed a will for his daughter. After his death, she inherits a three-room apartment. At the same time, this order specifies the daughter’s obligation to provide her father’s brother with access to the property. Next, the daughter will decide whether to accept this privilege or refuse it. If the removal is not limited by time, then his successor receives the property for unlimited use.
Family X has a family necklace that each child of the deceased mother wishes to inherit. She bequeaths it to only one child, and the rest must receive financial payments from the heir based on the legacy.

What is a testamentary assignment?

A testamentary assignment is described in the will in the same way as a refusal. That is, the deceased determines which of his close people fulfills his obligations. can also (in the event that none of the close people want to fulfill their duties and will refuse everything).

The peculiarity of the assignment is that it does not designate the persons to whom money should be given or a service done . That is, this number can be unlimited. This is quite difficult to understand, so it is better to explain with an example.

When your relative died, he left behind what he owned. This could be money, living quarters, precious things and much more (in principle, anything that costs money).

He shares part of all this between his close people and others, as he sees fit. And he may oblige you to give the rest to an orphanage, for example, or invest it in a fund.

If a relative had a lot of money, then even establish an award or grant . That is, there are many options, and the deceased is free to choose the one he likes best. So he can oblige you to do some of the above, but leave family members nothing.

Let's say you find yourself in a similar situation and you don't like it, you are free to refuse (you either refuse your share, which is given to you along with obligations, or refuse to accept the will).

What can be the subject of a legacy?

Clause 2 Art. 1137 of the Civil Code of the Russian Federation states that the subject of obligatory refusal can be both material and non-material benefits. A legacy can be aimed at inheriting property for ownership or at obtaining the right to dispose of it.

The process of transferring a person's right to own property does not provide a chance to dispose of it.

The subject of the legacy may be:

The obligation to make financial payments in favor of a person.
Transfer to a person of the right to own property.
Providing the recipient with an obligatory refusal of services.
Performing work for another citizen.
Receipt by a person of ownership of property from an heir.
Transfer of the right to use property to the legatee.
Fulfillment of other obligations of the testator.

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If the successor receives the burden of paying debts to the creditor, then they are carried out exclusively within the value of the property. All the finances remaining from this process are his inheritance for further disposal.

Registration of refusal under a will

The document for removal by order is drawn up in writing in the form of a list, which indicates the things to be transferred and the actions necessary to perform in favor of the person and information about him:

FULL NAME.
Date of birth and place of residence.
If the third party is legal: address, name, registration date.

The Civil Code of the Russian Federation gives a citizen the right to draw up a legacy without a will, but it will only be valid if it is certified by a notary.

When registering, it is worth indicating all the heirs who, by the will of the testator, must fulfill his obligations.

A legacy is part of a will, which is why they have common requirements for execution.

A prerequisite for the further validity of the document after the death of its originator is a notary certificate. This unilateral transaction will be canceled if it has not been approved by a notary.

What is a testamentary assignment? Differences from legate

Testamentary refusal and testamentary assignment are similar legal concepts, among which there are still differences:

Obligatory assignment involves the transfer to a successor at the disposal of the deceased of non-property debts. For example, when receiving an apartment, he will have to take care of the dog. If this condition is not met, the citizen will not be able to receive the inheritance.
A testamentary assignment obliges not a specific person to fulfill an obligation as a condition for receiving property, but all heirs in accordance with their shares in the object of inheritance. If the person accepting it dies, the property, along with the debts, passes to another person.
The assignment can be directed not only to the maintenance of property and its elements, but also to the commission of other actions that do not concern it. For example, the condition for receiving things may be to give someone bonus money, or to open a charity foundation or clinic.
If one of the heirs does not fulfill the obligation to assign, another equal or next-ranking relative may file a claim in court with this statement and a request to take away his share subject to the conditions of performing the necessary actions.

It turns out that removal by will controls the heir’s attitude towards the testator’s things, and assignment controls the achievement of non-property goals, which are the conditions for receiving them.

These phenomena of inheritance law are similar in that both express the will of the deceased person in relation to his property.

Why is a testamentary assignment necessary?

Having indicated the procedure for the distribution of financial and property assets, the owner can also provide in the will for the imposition of obligations on the recipients of the property. If a subject included in the circle of heirs has expressed consent to accept the assets, he will not be able to evade fulfillment of the assigned duties.

Since the assignment may entail financial costs for the recipient of the assets, the testator may indicate in the document:

a list of property or financial sources for the fulfillment of obligations (this requirement is mandatory if the obligations are assigned not to the heir, but to the executor of the will);
the period during which the actions must be performed (for example, when entrusting supervision and care of pets, such a period may be determined by the life span of the animals);
the procedure for performing actions (for example, to perform a burial, the testator can stipulate all the conditions of the funeral).

The assignment may come into force immediately after the death of the testator, i.e. before the actual distribution of property and issuance of certificates. For example, to perform burial actions it is impossible to wait for the completion of the inheritance process (6 months). Therefore, the potential heir must fulfill the instructions of the deceased, and the receipt of bequeathed assets will take place according to standard rules.

What may be specified in a will

In Art. 1139 of the Civil Code of the Russian Federation regulates an indicative list of actions that may be assigned under a will:

all actions related to the burial of the deceased testator (as a rule, the testator indicates from which sources the expenses will be paid, or will leave these issues to the permission of the heir);
maintenance, supervision and care of the deceased’s pets for the entire period of their life;
actions for generally beneficial purposes, or in other directions that do not contradict the law.

Since the will of the testator, expressed in the text of the will, is protected secret until the moment of his death, the heirs learn about the assigned responsibilities only after the opening of the inheritance case. The right to demand the performance of actions arises from any interested parties, and it can be presented in court.

Execution of a will after death

If the actions attributed to the assignment are of a property nature, they will be executed according to the same rules as a testamentary refusal. In particular, beneficiaries are given 3 years from the date of opening the inheritance case to submit claims. There are no time limits for non-property assignments.

The assignment will be carried out according to the following rules:

if the actions must be performed by the heirs, they bear all expenses at their own expense or at the expense of sources indicated by the testator;
the executor of the will will fulfill the assigned obligations at the expense of part of the assets allocated for these purposes by the testator;
Any interested person can control compliance with the will of the testator, including by filing lawsuits in court.

The heir cannot refuse to perform the assigned actions if he has submitted an application to receive the bequeathed assets. If a refusal of inheritance is declared, or the subject has not submitted an application to the notary within 6 months, no obligations are imposed on him.

Example of a testamentary assignment

What can the testator demand? First of all, the legislator highlights the point with pets. Here is an example of how to write in a will:

Example of a testamentary assignment for the maintenance of pets
I entrust to the heir under this will the responsibility for maintaining the pets that belong to me, as well as for providing the necessary supervision and care for them during their lives.

You can also require the heir to take action, for example, to transfer something valuable to special institutions.

An example of a testamentary assignment for the transfer of property
I entrust the heir with the obligation to transfer my collection of paintings to the city museum of fine arts.

Failure Size

Legislation determines the amount of the legacy solely within the framework of the inherited property .

The successor fulfills the material obligations of the deceased relative for the amount equal to the inheritance. What remains after this procedure is now his property. If he has circumstances under which he can legally claim an obligatory share in the inheritance, then he first receives it, and the remaining funds go to fulfill the obligations.

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Svetlana Samoilenko

Inheritance lawyer

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The full amount of a possible legacy is calculated after the heir has incurred the costs of the citizen’s funeral, paperwork, etc.

Description of testamentary assignment

A testamentary assignment is similar to a testamentary refusal. The only difference is that the testator prescribes the execution of actions aimed at fulfilling obligations of a material and non-property nature.

The assignment must also be executed only after its acceptance. If the successor refuses to accept the inheritance, then the obligation passes to other relatives who are specified in the will and have the right to part of the inheritance. If the successor dies after accepting the inheritance share, then his heirs will need to fulfill the assignment.

The testamentary assignment may indicate the following instructions of the testator:

Transfer bonus payments to finance certain projects.
Present collection items.
Issue vouchers to people in need for treatment in a specific institution, which is in the possession of the testator.
Admit children raised in low-income families to a specific educational institution created by the deceased.
Directing funds to finance research programs.
Other orders of non-property and material nature.

If the executor of the assignment irresponsibly approaches the fulfillment of the testator’s instructions, then any relative has every right to apply to the judicial authority with a request to provide him with the opportunity to become an executor.

Deadlines for receiving a legate

Citizens have the right to rely on the legacy left by them for a period of up to 3 years from the death of the citizen. As soon as this time period ends, the testamentary refusal loses legal force, and the terms can no longer be restored.

According to paragraph 3 of Art. 1138 of the Civil Code of the Russian Federation, if the legatees do not declare their property rights in relation to the inheritance from the deceased, then they will no longer be able to receive the benefits previously allocated to them, and the heir is released from the obligation to make payments.

To avoid such nuances, the testator can indicate another successor to the legate. He will fulfill obligations and receive the citizen’s property in the following cases:

Upon the death of the first heir before the opening of the inheritance.
His death together with the testator.
Removal of the successor from receiving a legate.
The continuator misses the three-year period to obtain a waiver.
Recognizing him as an unworthy heir.