Division of inheritance
As a general rule, the shares of each heir in the inheritance are equal, unless the testator himself distributed the inheritance among them. However, in accordance with Article 1267 of the Civil Code of Ukraine, heirs have the right to deviate from the equality of shares at their discretion. At the same time, the legislation does not specify the limits to which the heirs by law can deviate from the size of the inheritance shares.
Article 1278 of the Civil Code emphasizes that the division of the inheritance into equal shares prevails over other methods of division, but only if the testator in the will did not distribute the inheritance among the heirs.
How is inheritance divided?
Depending on what exactly is the subject of inheritance, two procedures for its distribution are applied:
- According to part 2 of article 1267 of the Civil Code of Ukraine, if the inheritance consists of movable things (with the exception of vehicles), the distribution takes place according to a simplified procedure: the heirs, by law, agreeing orally among themselves, determine the size of their own shares in the inheritance property.
- In accordance with part 3 of article 1267 of the Civil Code of Ukraine, if the inheritance consists of real estate or vehicles, then the distribution is carried out according to a special procedure: the legal heirs, in accordance with the provisions of a written and notarized agreement that they have concluded among themselves, determine the size of their own shares in the inheritance property.
We emphasize that the heirs, by a written agreement between themselves, certified by a notary, if it concerns real estate or vehicles, can change the size of the share in the inheritance of one of them.
If the heirs have not reached agreement on the size of their own shares in the estate, then its distribution may take place in court.
Options for the division of hereditary property
There are two options for the division (allocation) of hereditary property between heirs by law:
- By way of conclusion share change agreements in the inheritance (the heirs change the size of the inheritance shares: for example, instead of 1/3, they agree to change it to 2/3);
- By way of conclusion contracts for the division of inheritance (heirs determine the specific property that may correspond to their shares in the inheritance: for example, one heir inherits an apartment, another a residential building).
These contracts are treated as separate legal acts.
Of these contracts, the most commonly used Agreement on the division of inheritance.
An inheritance division agreement can be concluded both before the receipt of the Certificate of the right to inheritance (but not earlier than six months after the death of the testator), and after its receipt.
In the first case, after the conclusion of the inheritance division agreement, the heirs receive Certificates of the right to inheritance, while the agreement is not issued to the heirs, it remains in the inheritance file.
Otherwise, all heirs first receive Certificate of Inheritanceand then conclude an agreement on the division of property.
The division of property is also possible in cases of inheritance by several persons under a will, in which the inheritance is distributed among several heirs in partial terms (for example, 1/3 share each).
However an agreement on the division of an inheritance cannot be concluded according to a will, in which the testator specified the distribution of his property between this or that heir, and each heir by will becomes the owner of a specific thing specified in the will (one - an apartment, the other - a house).
The subject of the agreement on the division of the inheritance can be both all of the inheritance property, and part of it.
As a rule, the division of the inheritance is made by the heirs in accordance with the share in the estate that belongs to them by law or will, that is, upon division, the heir receives property equal in value to his inheritance part. But with the consent of the heirs, the division of the inheritance can be carried out not in accordance with the parts of the inheritance, since the law allows the division of joint property not in accordance with the shares of its participants. In this case, the heir, whose share is reduced in accordance with the agreement on the division of the inheritance, has the right to receive monetary compensation due to the unequal division. The amount of such compensation is determined by agreement of the parties and is reflected in the content of the contract. In addition, the agreement on the division of the inheritance may contain a provision on which of the heirs repays the debts of the testator, performs a testamentary refusal, and the like.
In cases of concluding agreements on the division of inheritance with the payment of monetary compensation, notaries must take into account the fact that the heir who pays such compensation is married, since the funds used as an additional payment may belong to the common joint property of the spouses. In the presence of these circumstances, the contract can be concluded only with a notarized consent of the second spouse such an heir and, as a result, is the basis for the emergence of the right of common joint property of the spouses as a result of the conclusion of such a transaction.
Separation of hereditary property in kind
Each of the heirs has the right to allocate his share in kind. However, only certain heirs have a preferential right to allotment in kind separate estate property.
Heirs who were co-owners of property with the testator shall have a preferential right over other heirs to allocate to them in kind their share of the property in the inheritance. At the same time, such separation cannot violate the interests of other heirs. First of all, it concerns the inheritance of household items and household items.
Redistribution of inherited property
For property passing by right of inheritance to heirs, a notary at the place of opening of the inheritance shall issue a Certificate of the right to inheritance. However, after the expiration of the period for accepting the inheritance and its allocation in kind between the heirs on the basis of Article 1300 of the Civil Code, there is an opportunity for the latter to amend the Certificates of the right to inheritance.
Therefore, heirs who have already received a Certificate of Inheritance can apply voluntarily with a written application to a notary to redistribute the inheritance between them and reduce their share in the tax property, for example, in connection with the appearance of other heirs.
Allocation of a mandatory share in the inheritance
The distribution of inheritance property by the testator (or heirs) is limited by the right of a certain category of persons who are involved in the inheritance regardless of the will of the testator by virtue of a direct indication of the law.
The list of such persons, defined by Article 1241 of the Civil Code of Ukraine, is exhaustive and is not subject to extended interpretation. This list includes only persons who belong to the first line of heirs by law and are minors, minors, disabled children of the testator (including adopted children), disabled widows (widowers), disabled parents (adoptive parents) and children who were conceived during the lifetime of the testator and born after the opening of the inheritance.
The right to a compulsory share in the inheritance does not depend on the consent of other heirs to receive it, as well as the place of residence of the heir. Deprivation of the right to a mandatory share in the inheritance legislation does not provide. But if other heirs are against the issuance of a Certificate of the right to inheritance, a mandatory share, or want to reduce such a share, they have the right to file a corresponding claim with the court.
To determine the size of the mandatory share in the inheritance, it is important to determine the circle of persons who could inherit by law in the absence of a will, and the composition and value of the property that makes up the inheritance.
The obligatory share includes everything that the person entitled to such a share receives from the inheritance on any basis - the value of ordinary household items and household items, the value of a legacy established in favor of a testament, a bank deposit, as well as the value of other things and property rights that have passed to him as an heir.
The heir may refuse to receive the Certificate of the right to inheritance for a mandatory share by submitting a corresponding application to the notary's office at the place where the inheritance was opened.
If the heir, who has the right to a mandatory share in the inheritance, does not accept the inheritance property within the time period established by law or refuses the inheritance, the property is inherited by the heirs according to will (if any) or distributed among the heirs in law (in the absence of a will).