Mandatory share of inheritance without a will (by law) and in the presence of a will

What is the purpose of allocating a mandatory share?
Who has the right to claim the obligatory share?
How is the mandatory share calculated?
Reducing the size of the mandatory share
Who may be deprived of the obligatory share
The procedure for registering a mandatory share with a notary

In Russian legislation, like in many other countries, the priority of the will of a deceased person who wants to leave his property to specific people whom he has chosen as his heirs operates. This is expressed by drawing up a lifetime disposition. However, according to the law, a part of the inheritance must be received by persons entitled to an obligatory share, even in the presence of a will.

What is the purpose of allocating a mandatory share?

The condition that part of the inheritance should, under any circumstances, go to the closest relatives of the deceased person existed in Roman law and was called “contrary to the will.” The current law (Article 1149 of the Civil Code of the Russian Federation) clearly defines the circle of persons who have special rights when inheriting the testator’s property. These include disabled relatives and dependents of the deceased person, whom he provided during his lifetime, or was obliged to do so in accordance with the provisions of the Family Code.

Caring for the listed categories of persons falls on the shoulders of the state if they are left without a means of subsistence. Considering this unfair, the legislator introduced into the law a provision on a mandatory share of the inheritance. Disabled family members of the deceased and his dependents receive a limited portion of his property, so that this does not infringe on the rights of the main heirs under the will.

How the right to an obligatory share in the inheritance is contested

Such a restriction in relation to the testator in most cases becomes the cause of disagreements between the heirs. The persons specified in the will, through the court, can reduce the size of the obligatory share or completely deprive the person of the inheritance. Considering that we are talking about disabled citizens, it is very difficult to achieve a positive decision in court: in practice, courts rarely take the side of the plaintiff in this category of cases.

Who has the right to claim the obligatory share?

Minor children of the deceased person, as well as those not yet born on the day of his death, as well as disabled people, regardless of their age. It does not matter whether they work or study, and the degree of their financial support. Illegitimate children have the same rights as legitimate children. However, if the testator is not recorded as the father in the birth certificate, the fact of paternity is established by the court.
The parents of the deceased and his widow (widower) who have reached the generally established age: w - 55 years, m - 60 years (those who became pensioners earlier, according to the preferential list, are not considered). Also, the listed persons are classified as obligatory heirs if they have a disability.
Disabled dependents of the testator whom he supported during his lifetime at his own expense. They are divided into two categories.
Those included in the circle of heirs of any line, even those not called for inheritance, for example, brother, sister (2nd line). They do not require the condition of cohabitation with the testator.
Strangers (not relatives). They can receive an obligatory share of the inheritance in a will only if they lived with the deceased person in the same residential premises.

The fact of dependency must be proven with documents; often for this you have to go to court (if the notary does not have enough evidence). For this purpose, certificates of payment for studies, checks for the transfer of funds, purchase of things, medicines, and witness statements are submitted.

Features of the mandatory share

It represents part of the testator’s property in various forms;
Mandatory inheritance by certain persons;
The order and circle of persons entitled to a compulsory share are determined by the rules of law;
The testator cannot influence the implementation of this norm;
The obligatory share cannot be the entire property - it is a minimal part;
According to the law, the testator has the right to award the person who claims the obligatory share the majority of the inheritance;
It is worth considering that the obligatory share is due to a certain person even when all the property under the will is transferred by other persons, and the applicant for the obligatory share is not an heir under the will.

The principle of freedom of will

According to Article 1110 of the Civil Code of the Russian Federation, a person has the right to transfer his property by inheritance:

To those persons whom he wishes;
Can make various orders regarding his property;
To deny a certain inheritance to persons who had claims to it by law.

At the same time, the testator cannot in any way influence the norm that ensures the implementation of the right of a certain circle of persons to an obligatory share in the inheritance. The list of such applicants is closed and clearly defined by legal norms.

The purpose of identifying the list is to protect certain individuals who, for a number of objective reasons, require material support and support. An expanded interpretation of the list of persons is not provided.

How is the mandatory share calculated?

According to the law, the compulsory heirs listed above receive at least ½ of the share of the inherited property that would be due to them upon inheritance by law. Consequently, in order to calculate its value, the notary determines the full circle of legal heirs, despite the presence of a will.

The obligatory part of the inheritance is allocated first from the intestate property of the deceased person. If there is no such thing, then it will be separated from the property bequeathed to other heirs, even if this infringes on their rights.

Example. The inheritance is divided according to the will of the deceased citizen A., pensioner B. (husband) and a seventeen-year-old niece (sister’s daughter) are claiming the obligatory share. The list of property includes an apartment bequeathed to the daughter, a plot of land and a house left to the son, and 500 thousand rubles. from a bank deposit, bequeathed to a niece. In addition, the testator owned a garage, as well as funds in her accounts. All property belonged to her personally, except for the apartment acquired during her marriage to B.

The full value of the inherited property is determined: 16.5 million rubles. (apartment - 8 million rubles, house and land - 4 million rubles, garage -2.5 million rubles, bank deposit - 2 million rubles). Including the cost of the unprobated part is 4 million rubles.
If inheritance took place according to law, without a will, the heirs would be a widower, two children (1st stage) and a niece (dependent). Each of them would receive 1/4 of the property, while the spouse initially allocated his marital half of the apartment, and only the remaining part of it was included in the inheritance estate. Thus, each heir would receive property worth: 12,500,000 / 4 = 3,125,000 rubles.

*The niece, who was supported by the deceased aunt, is included in the circle of heirs, since the obligatory share in inheritance by law is allocated to disabled dependents on an equal basis with participants in the conscript queue (Article 1148 of the Civil Code of the Russian Federation).

In this case, each of the 2 obligatory heirs is due 1,562,500 rubles. (half of the share according to the law). The cost of unprobated property is 4 million rubles. However, according to paragraph 3 of Art. 1149 of the Civil Code of the Russian Federation, in the obligatory share of the inheritance in the presence of a will, all property received by the heir on any other basis is included. Since the niece was already bequeathed 500 thousand rubles, the amount due to her is 1,062,500 rubles. Thus, a total of 2,625,000 rubles are required for mandatory shares.

This amount is deducted from the value of the intestate property, and another 1,375,000 rubles remain, which are divided between 2 heirs by law (the daughter and son receive 687,500,000 rubles each). The spouse and niece receive the remaining 1.5 million of the bank deposit and a share in the ownership of the garage in proportion to the amount missing to the size of their shares.

Disabled applicants cannot receive more than the mandatory share of the inheritance in the presence of a will. They must express their desire to accept the inheritance by submitting a written application to a notary within the period established by law - 6 months from the date of death of the testator.

If the obligatory heirs do not contact the notary's office, then it is as if they do not exist. They also have the right to officially renounce the obligatory share by writing a corresponding statement to a notary. Then the share of other legal successors will simply increase. Such heirs can renounce their rights only unconditionally, and not in favor of another person.

The size of the obligatory share in the inheritance

In the absence of a will, the estate is divided among the heirs by law in equal shares in order of priority. Heirs of the same line receive inheritance in the same amount, with the exception of those who are called to inherit in the order of presentation. A will violates this balance - the testator decides independently what share of the property each heir will receive.

The size of the obligatory share should not be less than half of the amount of property that would be due to a person upon inheritance by law. To determine the size of the obligatory share, it is necessary to take into account all heirs, including those who inherit by right of representation. Calculation example:

A mother bequeaths an apartment to one son, leaving the second (disabled) without an inheritance.
The family has no relatives, therefore, if inherited by law (without a will), both sons would receive ½ share in the apartment.
If there is a will, the disabled son has the right to a compulsory share - at least half of what is due upon inheritance by law.

The calculation of the obligatory share in the inheritance in a will is carried out according to the described example: initially the property is divided among all heirs, then half is calculated from one separate part. According to the law, half of the share of the inheritance is a mandatory share. From the above example it follows that the disabled heir will receive an inheritance of ¼ share in the mother’s apartment.

Reducing the size of the mandatory share

In some cases, the amount of property allocated to the obligatory heir may be reduced or not allocated at all (clause 4 of Article 1149 of the Civil Code of the Russian Federation). This is only possible in court and, as a rule, the demand is made by heirs whose rights are infringed by the allocation of a compulsory share. The reason for this is usually the following circumstances.

A person who requires an obligatory share of the inheritance in a will does not need this property, whereas the heir used it during the life of the testator and continues to use it after his death.

Example. The testator's son was bequeathed a personal plot on which he grew vegetables for sale and sold them as an individual entrepreneur.

The elderly mother of a deceased citizen (grandmother of the heir), living in her apartment and not intending to change her place of residence, declared her rights to an obligatory share of the inheritance. Most of the amount due was paid to her in the form of funds from the deceased's account, but this was not enough and she acquired 1/10th of the title to the land.

The heir appealed to the court with a demand to reduce the size of the obligatory share by the part of the real estate belonging to her. Taking into account all the circumstances, the court decided the case in favor of the heir under the will.

The size of the obligatory share in the property is very small, while this significantly limits the heir’s ability to use and own residential premises.

For example, even if the obligatory part is only 1/20 of the apartment, and the person who received it has his own home. The heir under the will cannot sell the premises, because the transaction may be blocked by another owner, or he may demand disproportionate compensation for his consent.

In this case, the successor under the will may justify his claim by the fact that the obligatory heir is abusing his right, infringing on the rights of the person who received the property under the will.

In practice, controversial situations regarding inheritance issues often arise, especially if they involve minor heirs. Their legal representatives can waive the obligatory share only with the permission of the guardianship authorities, which will be required by the notary in charge of the inheritance case.

How is the obligatory share allocated from the common property?

When calculating the share, the value of all bequeathed and intestate property, including home furnishings, is summed up. As a rule, the obligatory share is allocated from the untested part of the estate. That is, if the heir is entitled to ¼ of the apartment, but in addition to the bequeathed apartment, for example, a car is left, then the vehicle is used as a mandatory share. It is important that the share in the apartment and the cost of the car are commensurate in monetary terms.

There is not enough untested property to allocate the obligatory share, then it is allocated from part of the bequeathed property. In this case, the right to the obligatory share can be challenged by other heirs through the court: it is reduced or completely eliminated. Its increase is not allowed.

Who may be deprived of the obligatory share

As a general rule, the testator's property cannot be received by persons recognized as unworthy heirs. These include those who:

committed unlawful acts against the deceased person or other heirs;
maliciously evaded the statutory obligation to support the testator;
was deprived of parental rights in relation to the deceased person.

If the notary is presented with documents confirming this fact, he excludes the applicant from the number of heirs. As a rule, this is a verdict or court decision. At the same time, if the testator knew about their existence, and after that he bequeathed his property to such a person, his will must be executed.

Is there a mandatory share in inheritance by law?

Disabled family members, as well as dependents of the testator, may apply for the allocation of a mandatory part of the inheritance when the inheritance procedure is carried out according to law (without a will). Only the procedure for allocating the share here will be different and more beneficial for the heir.

The difference is that the majority of persons included in the circle of compulsory heirs are simultaneously members of the 1st line of inheritance without any conditions: spouse, parents, children. As for disabled dependents, they are also included in the draft line along with other legal successors, and will receive an equal share of the inheritance.

At the same time, it remains necessary to prove the fact of dependency with documents, and the condition of living together with the deceased testator, if the dependent is not a relative. Let us add that in the absence of heirs of all 7 orders, such persons, by law, receive the inheritance in full.

Waiver of the obligatory share in the inheritance

The law does not oblige a person to receive an inheritance without fail. In the case of a compulsory share, everything is purely voluntary: the person himself decides whether or not to accept the inheritance. The right to refuse is enshrined in Art. 1157 Civil Code of the Russian Federation.

It is impossible to refuse the obligatory share in favor of another heir. Also, the heir will not be able to refuse part of the share due to him. Part of the inherited property is accepted for inheritance or not accepted. As a result of non-acceptance, the shares of the heirs under the will will increase: each of them will receive the same part of the “abandoned” inherited property.

Individuals refuse inheritance when it comes to possible claims from the testator's creditors. In accordance with Art. 1175 of the Civil Code of the Russian Federation, all heirs who inherited property are liable for the debts of the testator. Heirs entitled to an obligatory share are no exception.

The incapacity to work of the person who has received a share in the inheritance does not exempt him from fulfilling the claims of creditors. Therefore, in certain cases, citizens refuse to accept an inheritance.

about the author

Anatoly Darchiev - higher education in economics with a specialty in “Finance and Credit” and higher education in law in the direction of “Criminal Law and Criminology” at the Russian State Social University (RGSU). Worked for more than 7 years at Sberbank of Russia and Credit Europe Bank. He is a financial advisor to large financial and consulting organizations. Engaged in improving the financial literacy of visitors to the Brobank service. Analyst and banking expert. [email protected]

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The procedure for registering a mandatory share with a notary

Like all other heirs, persons wishing to receive a mandatory share of the inheritance, with or without a will, must contact a notary at the place of residence of the testator. This must be done within 6 months after his death, otherwise you will have to prove your rights in court. If it turns out that the inheritance case has already been opened in another notary office, the applicant will be sent to the right address. The registration procedure consists of several stages.

Submitting an application to accept a mandatory share of the inheritance.
Submission of documents confirming the right to it: a pension certificate, a certificate of disability, from the place of residence, receipts for the transfer of money, payment by the testator of the dependent’s expenses and others, depending on the circumstances.
Payment of state fees and technical services of a notary for the preparation of documents.

Notary comments: *Note. Veterans of the Great Patriotic War and military operations, orphans, and minor children are exempt from paying state fees. Disabled people pay 50%. It is also not required to be paid to persons inheriting residential premises where they were registered jointly with the deceased citizen.

Obtaining a certificate of inheritance rights - issued after 6 months after the opening of the case.
If necessary, conclusion of an agreement between the heirs on the division of the inheritance and payment of monetary compensation.
Registration of the received real estate with the Rosreestr body, as well as other property requiring inclusion in state registers (enterprise, transport, weapons, patents).

A pensioner or disabled person can entrust the registration of an obligatory share of the inheritance by will or by law to any other person by means of a notarized power of attorney. On behalf of minor heirs, their legal representatives (parents, guardians, social institutions) act.

In our notary office you can always get advice on the allocation and acceptance of a mandatory share of the inheritance, submit an application and other necessary documents. We work every day, including weekends and holidays. You can make an appointment by phone, on the website, or just come during business hours.

Grounds for reducing the share or refusing to receive

Article 1149 of the Civil Code of the Russian Federation provides for situations in which persons entitled to a compulsory share may not receive it or receive it in a reduced form. The main reason for this is the financial situation of the person himself, which is included in the list outlined above. This is a logical and legal provision, based on the very purpose of allocating a compulsory share: it is received by persons who need financial assistance and cannot provide for themselves for objective reasons. If there is no need, the court may revise the size of the share.

The basis for a complete refusal may be the impossibility of transferring to a compulsory heir a share that is part of the real estate used during the life of the testator by another heir from the will. This also applies to the testator’s main income, if the obligatory person did not use it.

A decision on this issue can only be made by a court, based on consideration of the specifics of the case and the financial condition of the parties.

According to the law, an obligated person has the right to refuse to accept his share, but the person cannot decide the future fate of this property.

Author of the article

Kuznetsov Fedor Nikolaevich

More than 15 years of experience in the legal field; Specialization - resolution of family disputes, inheritance, property transactions, disputes over consumer rights, criminal cases, arbitration processes.