Inheritance by testament and without: features of the inheritance in various situations

Inheritance procedures differ depending on whether the deceased has written a will. We are contacted by Clients who wish to undergo the procedure within the shortest possible time and with a minimum of problems. So, we decided to elaborate on the issues related to the inheritance process in two options: with and without a will.

Today, we will talk about the peculiarities of accession to the heirship in different situations, as well as consider the case of late accession to the heirship.

Note: We can help with notarial registration of the will, accession to the heirship and defending the interests in court only within the city of Kyiv. If the inheritance opened outside Kyiv, we can offer you the advisory assistance, and if necessary, develop draft documents (will, life care contract, inheritance contract, the statement of claim).

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Succession procedure by will

How to Execute a Will?

As a general rule, the will shall be certified by a notary. The law provides only for exceptional cases where the will may be certified by others:

  • local government officials in areas where notaries do not exist;
  • chief medical officer of a healthcare facility;
  • the ship’s captain, etc.

That is, a will can only be certified by someone other than a notary when a notary is not within close reach.

Which notary to go to for accession to the heirship?

  • If the heirs know which notary has made the will, they shall go to him/her, show the death certificate of the testator and make an application for succession by will.
  • If the heirs do not know which notary made the will, the application shall be filed with any notary at the place of the inheritance opening.
  • If the heirs do not know the exact place of registration of the deceased, the law allows you to apply at the location of real estate or its main part.

An application for accession to the heirship must be submitted within six months from the date of the opening of the inheritance (the day of death or the day on which the testator is declared dead). Within the city of Kyiv, our notary will execute the will, the opening of the inheritance and accession to the heirship.

We also offer services for registering the contract of inheritance and the life care contract. This can be an alternative option to a will, because in the presence of these contracts, the will is not required.

Why can a life care contract be better than a will? 

For testators, it is an opportunity to take care of their guardians and ensure that the inheritance is given to the person the testator chooses. It is also a way to ensure that the elderly person receives the care he/she deserves.

For inheritors:

  • no taxes (this may be relevant for relatives in Ukraine, starting from the third degree of kinship, as well as for persons of the first and second degree of kinship living abroad);

  • the contract may be terminated only through the court proceedings;

  • wills, drawn up after the conclusion of the life care contract, are invalid (provided that the contract has not been terminated in court). 

Our lawyers will develop a life care contract advantageous for both parties. We will organize the arrival of the notary to the alienator (“heir”), and if necessary, will sign this contract by proxy instead of the acquirer (“inheritor”) if they can’t come personally, for example, because of the inability to come from another country.

Can the testator deprive all relatives of the right to inherit and transfer everything, for example, to a person who was not a relative of the deceased or legally wed?

Yes, such a situation is possible, because according to Part 1 of Article 1235 of the Civil Code of Ukraine, a testator may institute a person / persons as his/her heirs, irrespective of any family relations. And in accordance with Part 2 of the same article, the testator may divest any of the legal heirs of the right to succession.

However, part 1 of Article 1241 of the Civil Code of Ukraine defines the circle of persons who cannot be deprived of the right to inheritance:

  • the testator’s juvenile children;
  • incapable parents;
  • widow / widower;
  • the testator’s grown-up incapable children.

So if the will bypassed any of these individuals, they can challenge the will in court. In such a case, it’s better to seek for qualified legal support, since the success of the case depends largely on both the claim and the defense of interests in court. With many years of experience in defending the interests of our Clients in court, our lawyers will draw up a statement of claim, which will argue why you cannot be deprived of the right to inheritance, provide you with professional support in court or represent your interests without your presence.

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The inheritance procedure through a secret will.

This is a separate category of wills. Even a notary does not know its content, as the testator submits it in an envelope to the notary when drawing up the will. The signature on the envelope is certified by a notary.

When the notary learns about the opening of the inheritance, he/she will inform the family members and relatives of the deceased. If the notary has no their contact information, he/she simply publishes information about the opening of the inheritance in the printed media. This publication must specify the day, time and place of announcement of the content of the will.

In such a situation, you, as an heir, risk missing the date of accession to the heirship. As in order to get the message, you have to chance upon the exact print media where the message was published. This means you’ll have to defend your right to inherit in a court.

Inheritance in absence of a will

Where the heirs should start?

This depends on a particular line of succession you belong to. In the absence of a will, the order of succession defined in Articles 1261 - 1265 of the Civil Code applies. But first of all, it is necessary to apply to the notary with an application for accession to the heirship. It’s worth remembering that the inheritance is opened at the last place of residence of the testator (except in cases where the place of residence is unknown). That is, it is necessary to apply to the notary of that notary district.

In practice, it often happens that the heirs go rogue.

Read also: The Procedure Of Accession To The Heirship By A Foreigner In Ukraine

Please note! Only one notary can conduct the inheritance matters. Therefore, if the heirs act separately, the inheritance will be opened by the first notary.

When you go to the notary, you must have the following documents:

  • the death certificate of the testator;
  • a certificate of the testator’s last residence;
  • documents confirming that the property (inheritance) really belonged to the testator;
  • your personal documents (passport and ID code of the heir).

All the above documents are only available in one copy. Accordingly, only one heir may hold them. For example, the one who lived with the deceased. That is, he/she has a better chance of opening the inheritance at a notary advantageous to him/her. How to proceed in such cases? When going to “another person’s” notary, you should at least apply for legal support.

The lawyer will be able to protect you from accepting the inheritance on less favorable terms and from the signing of documents with hidden overtones, where your rights are violated.

The order of legal succession and actual acceptance of inheritance.

The law provides that the first priority right to inheritance has the first line of heirs, and the second line has the right to inherit only in the complete absence of any persons belonging to the first line of succession. This rule applies to each subsequent line of succession: they have the right to inheritance, only if there is no person from the previous line. So first of all, you need to determine which line of succession you belong to.

What is actual acceptance of inheritance?

According to Part 3 of Article 1268 of the Civil Code of Ukraine, if the heir at the time of opening the inheritance was permanently living with the testator and did not refuse the inheritance in due time, it is considered that he/she actually accepted it. That is, a person who lived with the testator shall be automatically deemed as having accepted the inheritance following six months of the date of opening of the inheritance.

This rule may even result in a person who is next in the line of succession becoming the heir.

For example, a civil wife was living with the testator when the inheritance was opened. She definitely falls within the criterion of the fourth line of succession defined in Article 1264 of the Civil Code: a person who lived as one family with the testator for at least five years before the inheritance opening. Suppose that persons from the third and second lines were not aware of the opening of the inheritance. Therefore, after six months, a person from the fourth line of succession became a full heir.

What to do in case of late accession to the hership, especially when the actual heirs are found (ipso facto)?

First, you have to go to court. But it’s worth remembering that the arguments where you have been for the last six months and why you did not know about the testator’s death, what else prevented you from applying for acceptance of the inheritance should be more than weighty. This includes, for example, staying in health care facilities for a long time.

If the court finds that the reason for the delay is valid, the term for acceptance  of inheritance may be extended for a period needed to submit the application to the relevant notary. Of course, in order for the court to agree with you, you must correctly state your arguments in the application and provide the relevant evidence. Our lawyers can help you with all inheritance issues. They will provide you with comprehensive legal support for assertion of your legal right to inheritance.

Getting an inheritance is a complicated process, not only because of a sad reason, but also because the procedure is time-consuming. 

We are ready to help you!

Contact us by mail [email protected], by phone number +38 044 499 47 99or by filling out the form:

Publication date: 06/05/2020

About author

Name: Marina Losenko

Position: Associate

Education: National Aviation University

Knowledge of languages: Russian, Ukrainian

Email: [email protected]

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