The institution of guardianship is designed to protect the rights of the ward and ensure his decent upbringing and maintenance. The standard rule is that guardianship is assigned to the person's relatives.
As a rule, grandparents, aunts, uncles and other relatives act as guardians.
Only in the absence of relatives is it possible to appoint third parties as guardians. This also happens when relatives refuse to raise a minor.
It must be said that the establishment of guardianship occurs in relation to persons who are under 14 years of age and in relation to those who are incompetent. From the point of view of the law, these persons cannot make independent decisions and bear responsibility for their actions. Therefore, they need the care of capable adults.
At the same time, wards have the right to have property, which remains their property until adulthood. And guardians do not have the right to dispose of such property without the approval of the guardianship authority.
Accordingly, in the event of the death of the ward, his assets form the estate. Therefore, the question of whether the guardian has the right to the inheritance of the ward is of quite practical importance.
Types of inherited property
Inheritance legal relations are regulated in great detail by a special chapter of the Civil Code of Russia. According to the provisions of the law, all property belonging to the deceased person is inherited. The law does not contain any exceptions regarding minors under guardianship or incompetent persons.
Accordingly, the guardian's rights to inheritance extend to the following assets:
bank savings . This is money that is in a savings account. The ward has no right to spend them. His guardians have this right. But they can implement it only with the approval of the above-mentioned body for the protection of the rights of minors; - real estate assets . Usually these are apartments, shares in common property, houses. No one has the right to sell such assets. Even if the child himself agrees with the sale, alienation of real estate is not allowed;
- securities . The exclusive right to them and to the dividends received belongs to the child. Accrued funds can only be spent to meet his needs;
- shares in commercial companies. Part of the authorized capital involves making a profit. These funds can be accumulated in a special account. Access to it is impossible except with the permission of the guardianship authority.
In the event of the death of a child, all of the specified property, as well as the obligations of third parties of a property nature, become the inheritance mass. This means that the assets must be passed on to the heirs.
Inheritance law is designed in such a way as to exclude the flow of assets of the deceased to the state. Therefore, inheritance occurs down to the person’s most distant relatives.
You must inform the notary about the opening of the inheritance. It is he who manages the process of the heirs taking over their rights. And he can only learn about the fact of death from the relatives of the deceased, his guardians.
If there is a will
This document is often drawn up in the presence of a notary or a person replacing him.
Such rules are designed to exclude unfree expression of will. In this case, the testator must be of sound mind and not show signs of even a temporary mental disorder.
It is the freedom of expression of will and awareness of one’s actions that determine the legality of a will. Meanwhile, guardianship is established over persons no older than 14 years. At this age, children do not even acquire limited legal capacity. They do not have the right to sign documents and do not have the right to independently exercise the rights of the owner in relation to their assets.
This means that the will drawn up by the ward will be obviously invalid. It is void in its essence and cannot entail legal consequences. Moreover, the insignificance of the document is so obvious that it does not require proof. In fact, such a will has no value, being an ordinary paper.
Therefore, it makes no sense to make him a ward. Accordingly, if it is drawn up and the guardians are indicated as successors, the transfer of ownership of the assets will still not occur.
Actions aimed at drawing up a will by guardians in their own interests may be regarded as fraudulent and lead to criminal liability under Art. 159 of the Criminal Code of the Russian Federation.
In law
The procedure for obtaining property is based on the principle of priority. That is, assets are received in order of proximity of relationship.
The closest relatives are the parents. But since guardianship has been established over the minor, it is obvious that there are no parents. Either they died or were deprived of their rights. This means that they cannot inherit in principle.
The next relatives are grandparents. There cannot be a descending line in age; only an ascending line remains.
Therefore, the assets will go specifically to these relatives. In the absence of such, brothers or sisters will become successors. And their age doesn't matter. Even if they have not reached full legal age, they will be the ones who will gain rights. Of course, all actions will take place through the participation of representatives.
In the absence of the specified relatives, the queue moves, and aunts, uncles, cousins, and so on become successors.
In total, the law provides for seven queues consisting of their relatives. The further the line, the further the relationship with the deceased. But in any case, the assets will go to relatives, even the most distant ones.
Is there a waiting list for caregivers?
It all depends on the closeness of the relationship. If the guardian turns out to be a close relative of the first groups, then the guardian has the right to inherit and he will receive the property.
But in this case, the presence of close kinship and the absence of relatives from closer groups must coincide. If there are no such circumstances, then the assets will be received by other relatives. And you won’t be able to claim them using guardianship.
Therefore, there are often situations when the guardian of the heir does not receive the inheritance of the deceased ward, which goes to his close relatives. At the same time, they may not take any part in his upbringing, maintenance, or providing the necessary necessities for a minor or incompetent person.
The right of a guardian to the inheritance of the ward seems unfair. But that’s exactly how the law is formulated. And there are no exceptions.
Compensation of expenses
However, guardians may demand compensation for expenses incurred to ensure the safety of assets and maintain their normal condition.
Such compensation is not a procedure for entering into an inheritance. After all, claims for reimbursement of expenses will be submitted to the successors who have entered into the right.
To receive compensation, accurate calculations must be made. They must be documented. Arbitrarily stating demands will not produce any results. You need to prepare and provide evidence of the validity of your claims.
The reimbursement process itself can be divided into three stages:
- their statement orally. If there is agreement, the successors will reimburse the expenses from the property of the deceased person;
- a pre-trial claim should be prepared in case of refusal to voluntarily satisfy oral demands. The specified paper expresses the person’s requirements and contains the necessary calculations;
- The response to the claim must be received within 10 days. If this does not happen or the answer is negative, you need to go to court.
It should be noted that such claims are satisfied with proper argumentation.
If a party provides evidence of the fact of expenses and their volume, its demands will be recognized as justified and satisfied. This is fair, because guardians bore the costs of maintaining the property of the ward.
And after his death, this property passed into the possession of third parties. And the value of the assets was preserved precisely due to the efforts and expenses of the guardians.
Therefore, you need to collect supporting documents and attach them to the claim. The defendants in the case will be the successors of the deceased.
When filing a claim, it is necessary to prepare copies of the application itself and copies of all attached papers according to the number of defendants. That is, the number of copies must correspond to the number of participants in the proceedings.
This category of claims is material, so you will have to pay a state fee. Its minimum amount is 400 rubles. But if the case is won, these funds can be reimbursed from the defendant’s funds.
Thus, receipt of the inherited assets of a ward by his guardian is possible only if there are family ties. In this case, the degree of relationship must coincide, and there should be no closer relatives. Otherwise, it will not be possible to count on a share in the assets of the deceased.
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Does the guardian have the right to the inheritance of the ward after his death in 2023
In legal practice, it is often discussed whether guardians have rights to the inheritance of their wards after their death. The demand for this topic is explained by the fact that many people care about people who are adults but are unable to care for themselves. And often the cause of difficulties is not the inheritance of the guardians, but their right to claim the inheritance of the wards. Often the health of the latter has already been undermined and death overtakes them quite quickly, although always unexpectedly.
Basic Concepts
The current legislation already provides for various situations; all legal norms are described in the legal literature. But in order to understand the intricacies and answer the question of whether guardians can enter into inheritance, you need to be able to use special terms and concepts. Legislatures clearly define whether a will can be rewritten or made in favor of a guardian.
There is also an option when the expression of will was not formalized. In this case, we are talking about accepting the inheritance according to the law. If more applicants are identified, the problems will have to be resolved through the courts.
The rights of guardians and wards arise from their legal status.
Federal Law FZ-43 (second article) provides that a dependent is a citizen who, even at the age of majority, for objective reasons, is prohibited from:
- to make deals;
- sign legal documents;
- manage your own property.
The prohibition arises from incapacity. A trustee (not necessarily a relative of the ward) is a person who takes responsibility for the dependent and decides all legal aspects for him. And when the latter passes away, disputes most often arise between the applicants. The subject of the dispute is inherited property.
Also included in the number of wards are minor children under 14 years of age. If parents die, the guardian becomes a grandfather, grandmother, aunt, stepfather, brother, sister, etc. The main requirement is the age of majority of the legal successor. There is a special government body that officially confirms the right to guardianship and controls its quality - this is the guardianship and trusteeship service.
Extracts from inheritance law
Articles 1142–1145 of the Civil Code of the Russian Federation stipulate a list of persons who have the right to claim the right to be a guardian.
The transfer of the owner's rights to inherited property on the basis of a will is carried out, regardless of the order of relatives.
The only condition is that the ward decided to transfer the property even before he became an incapacitated person. Otherwise, such a document is considered invalid (void).
The above-mentioned articles of the Civil Code of the Russian Federation suggest a classification of priority categories for the right to receive an inheritance in the following sequence:
- Sons and daughters of the deceased, his spouse.
- Siblings and their descendants.
- Grandfather and grandmother, if the parents are such.
- Aunt and uncle, parents' grandparents and their children.
- Grandson of mom or dad's brother or sister.
- Great-grandchildren and other distant relatives.
- Legal spouses of parents who are not blood relatives.
If you need to understand the family tree of a family and this is difficult, you can always consult with specialists. To ask a question, fill out the online contact form with a lawyer.
All family relationships are documented. Unofficial relationships do not give the right to claim property.
As can be seen from the list of heirs, the guardian, being the legal representative, is not included in it.
This is not a relative, and therefore in this situation they use other ways to obtain the right to dispose of the inheritance. Another nuance of the legislation is that the whole order changes in an instant if the property of the ward is transferred on the basis of a will. This is possible if the inheritance was formalized during life, during the period when the deceased was still legally competent.
Does the guardian have the right to inheritance?
43 Federal law does not provide for the inclusion of guardians among the persons who can claim an inheritance only on the basis of the care shown to the testator, if they are not relatives. The fact that the legally appointed representative of the incapacitated person performed certain functions is not a sufficient reason for the right to obtain ownership of the property.
And paragraph 3 of Art. 37 of the Civil Code completely invalidates transactions concluded between a guardian and a ward, thereby abolishing any rights and claims in relation to the latter’s property. At the same time, practice shows that the law has levers that allow one to enter into an inheritance both under a will and without it.
In what cases is succession by will possible?
The relationship between the guardian and the ward regarding inheritance is ambiguous.
If there is a guardian needed to help the testator in solving everyday and legal issues, it means that the person he is caring for is incompetent and does not have the right to draw up a will.
But, if at some point he becomes legally capable, it is enough to go to the notary at his place of residence and sign the declaration of will.
To obtain the right to inherit, the guardian must lose this status. Legal capacity presupposes that:
- The court recognized this fact and reflected it in the court ruling.
- The condition occurred upon reaching adulthood.
- The minor got married and began working.
Only after the formation of the listed circumstances does the guardian have the right to enter into an inheritance after the death of the ward. But for this you need to document the expression of will. After the death of the ward, the guardian can use the data and receives the right to the property of the deceased. To do this, you must appear at the same notary office.
Is the guardian a first-degree heir?
The legal procedure for entering into inheritance for a guardian provides more opportunities than for another heir. The decisive factor is status in relation to the first line of succession.
However, guardians acquire rights to inheritance only at the moment when they are the spouse of the ward, son (daughter), granddaughter (s), if the father and mother have died. The age of the dependent is a mandatory requirement. Guardians of the second, third, fourth, etc.
order enjoy the right to inherit on the rights of their turn.
How to inherit an inheritance for a guardian
The step-by-step instructions are as follows:
- Preparation of documentation. The procedure for registering rights under a will presupposes the presence of a competently executed and notarized expression of will.
- Appearing at the notary's office. It is necessary to find the will in the archives and write an application for acceptance of the inheritance.
- Submission of documentation. The guardian pays the state fee and also bears other expenses associated with obtaining inheritance rights.
- Obtaining a certificate of title to property. If there is no will, they can only act through the court.
- Re-registration of the owner's rights to the legal successor. Appropriate notes are entered into the State Register and certificates are issued.
Entering into an inheritance obliges the trustee to pay all the debts of the ward. And this is in addition to the fact that he maintained decent living conditions for years. When inherited property requires repairs, the costs of restoration are also borne by the successor to the right of use.
Right to part of the common property
The legislation determines the existence of indivisible shares, the owner's rights to which the guardians do not lose. When the time comes to divide the inheritance, this part is separated from the total mass of transferred values and becomes the property of the guardian. This is the case when during the life of the dependent they had common property.
If the shares are not officially confirmed, they are considered equal. When other heirs express a claim, it is necessary to act through the courts. A statement of claim for rights to part of the common property and allocation of a share of the inheritance is filed with the court at the place of residence or location of the object of the dispute. At the same time, the right of the guardians to claim the inheritance is preserved.
Feature - when dividing, the allocated share is not taken into account, because it is already indisputable property. Persons holding the status of legal successor have the right to make claims.
To do this you need to refer to the inheritance queue.
Although the rights of trustees are often overlooked, they are essentially people who cared, spent time and money, and therefore should be rewarded.
Does a guardian have the right to inherit after the death of the ward?
Does a ward have the right to inherit: relations between adopted children and guardians
The guardian becomes one of the most important people in the life of the person under his care, helping him cope with actions that he cannot perform on his own.
He may or may not be related to the person under his care, but in any case he becomes a real member of his family.
Does he have the right to receive an inheritance from the ward, and in what cases is this relevant? Such questions are often asked and therefore require a detailed answer.
Who is a ward?
A ward is a person who is incapacitated. There may be several reasons for this:
- minors, under 14 years of age;
- a long-term mental disorder that prevents awareness of actions.
These are vulnerable members of society who need the protection provided by a caregiver. The decision to appoint such a person is made exclusively by the guardianship authorities, in the second case - by the court. In this case, preference is given to relatives - adult sisters and brothers, grandparents.
A spouse can be appointed as a guardian. Being a close relative, this person can claim inheritance within his line of kinship, line.
However, outside of family ties, or through distant kinship, the guardian receives no special privileges in inheritance, and the law prohibits any transactions with either the guardian or his family.
This is the law, but in practice everything may look different - under certain conditions.
Will
As long as the ward remains incapacitated, he cannot leave a will. Only capable people can do this.
However, as soon as this status is removed, the ability to enter into transactions and make a will is restored.
If the court proves that the adult can again control his actions, or if the minor reaches the age of 18 or is emancipated, he can leave a will, including including his former guardian in it.
Law
If we are talking about inheritance by law, then everything depends only on the degree of relationship. If the guardian is the wife or husband, first priority will be guaranteed through this.
Important! Inheritance is possible only if you belong to a priority group of heirs. No other benefits are provided.
Exceptions
An exception under a will is possible only upon restoration of legal capacity.- Within the framework of inheritance by law, receiving an inheritance is possible only in relation to the priority order of inheritance.
- In all other cases, obtaining property is not possible.
How to join?
Entry into inheritance is possible by contacting a notary within the six months allotted for this after the death of the testator. As a relative, you must provide documents that will allow you to prove this.
When inheriting by will, the will itself is necessary. In addition, you will need a death certificate of the testator, the heir’s passport, and property documents. You must contact a notary at the place of last registration of the deceased, or at the location of the most valuable property.
If the documents are submitted correctly and the fee is paid, it is necessary to contact the notary again six months after the death of the testator in order to obtain a notarial certificate, which will become the main basis for re-registering property to the heir.
Disposal of property
There is a certain set of rules regarding the possibility of disposing of the property of a ward during his lifetime. Guardians largely control the activities of their wards, and in particular, any transactions go through them.
But they cannot act in their own interests when disposing of property - all transactions must take place only in the interests of the ward. Transactions are controlled by the guardianship authorities, to whom these people report, prior permission is always necessary. And therefore, it will not be possible to simply transfer the property to yourself; this is a completely illegal action.
Adopted children
Adopting a child is a serious step that provides him with many rights at the legal level.
A will can be written for any of the adopted children. This document can be written not only to relatives, but also to completely strangers, even legal entities. And therefore they can inherit according to a will without restrictions.
If there is no will, inheritance occurs according to law, and here the adopted child is completely equal to his own child. For example, if there is one natural child and one adopted child, they inherit 50/50, exactly half.
By not specifying an adopted child in the will, you can disinherit him. But if he is entitled to a compulsory share, it will still be provided to him, even if there is a will in which it is not in it.
Conclusion
Thus, the guardian has no special rights to inheritance, since he should not initially have an interest in the property of his ward. Any transactions in this regard are prohibited and supervisory authorities are conducting thorough checks in this regard.
However, it is possible to become an heir - in some cases it is possible to formalize a will accordingly if the testator receives the right to do so.
In addition, if the person providing guardianship is a close relative, he has the full right to receive property under the law if the property is distributed precisely within his degree of relationship.
But he will not be able to receive special rights for helping the testator.
Does a guardian have the right to the inheritance of the ward?
Home / Inheritance / Does a guardian have the right to the inheritance of the ward
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Issues of guardianship and trusteeship are regulated in detail by the legislation of the Russian Federation. This ensures the protection of the rights of the most vulnerable categories of citizens - the incompetent (partially capable) and minors.
But if everything is more or less clear with the rights of those under guardianship, many questions arise regarding the rights of guardians and trustees. The most pressing question is whether guardians (trustees) have the right to the property of the ward (ward)? Does the law include them among the heirs? After all, the responsibilities of guardianship and care are taken on not only by close relatives, but also by strangers.
Rights of guardians (trustees) to the property of wards (wards)
All rights and obligations of persons appointed as guardians and trustees are provided for in the Civil Code of the Russian Federation (Articles 31-40) and the Federal Law of the Russian Federation “On Guardianship and Trusteeship”.
Paragraph 1 of Article 17 of the Federal Law states that neither guardians (trustees) nor wards (wards) have any rights to each other’s property. The exception is the right to free use of property with the consent of the owner or with the permission of the guardianship and trusteeship authority.
In addition, both legislative acts (clause 1 of Article 21 of the Federal Law of the Russian Federation and clause 2 of Article 37 of the Civil Code of the Russian Federation) provide that without the permission of the guardianship and trusteeship authority, the guardian cannot enter into transactions (and the trustee cannot give permission for transactions) on the alienation of the ward’s property (donation, sale, exchange), about leasing, about transfer on security, about division.
In paragraph 3 of Article 37 of the Civil Code of the Russian Federation, the law deprives guardians (trustees) of the right to enter into transactions with wards (wards), with the exception of the transfer of property to the latter as a gift or free use.
These provisions of the law indicate that the property of the ward (ward), including that received by the latter by inheritance, cannot become the property of the guardian (trustee) and third parties, without the permission of the guardianship and trusteeship authority.
But there is no direct indication in the law about the possibility or impossibility of inheritance. What are the chances of a guardian (trustee) of inheritance after the death of the ward (ward)?
Guardian (trustee) and inheritance
As you know, inheritance is possible on two grounds - by will and by law. Let's consider whether a guardian (trustee) can be an heir on one of the grounds.
By will
Yes, a guardian (trustee) can become an heir under a will after the death of the ward (trustee).
BUT! Only if a will in his favor was drawn up by an adult before he was declared incompetent (partially capable).
After all, as we know, a will drawn up by minors and incompetent persons is invalid. And even the legal representative does not have the right to draw up a will on behalf of the ward (ward).
A guardian (trustee) can draw up a will in favor of the ward (ward), as a result of which the latter will inherit his property.
In law
The law provides for 7 lines of legal heirs who are relatives of the deceased. If the guardian (trustee) is not a relative of the ward (ward) and does not belong to one of the seven lines, he cannot claim inheritance by law. The fact of registration of guardianship (trusteeship) does not give any inheritance rights.
But the ward (ward) has a chance to become an heir after the death of the guardian (trustee).
Legal heirs include persons who were dependent on the deceased and/or lived with him for at least 1 year before his death (according to Articles 1142-1148 of the Civil Code of the Russian Federation).
Guardians (wards), who were dependents of the guardian (trustee), inherit simultaneously with the legal heirs.
Exception
It must be said that part of the inheritance after the death of the person under guardianship (ward) can still be received. If the guardian (trustee) has incurred certain financial expenses for managing the inherited property, he has the right to reimbursement of these expenses. Expenses are reimbursed by the guardianship and trusteeship authority from the funds of the deceased.
Results
The guardian (trustee) does not have any rights to the property of the ward (ward) and cannot enter into transactions with this property without the permission of the guardianship and trusteeship authority.
A guardian (trustee) is not considered a legal heir. But he can be an heir under a will if the ward (ward) has drawn up a will in his favor - at the age of majority and full legal capacity.
Therefore, even if a completely lonely person is under guardianship (trusteeship), after his death the guardian (trustee) cannot claim an inheritance. It will become the property of the state or municipality.
Does a guardian have the right to the inheritance of the ward after his death?
2,013 views
There are many nuances in the issue of inheritance. This takes into account the order of inheritance, the composition of applicants and the method of entering into property rights. One of the key points is the degree of relationship.
It is not taken into account only if there is a will. The first priority applicants are close relatives of the deceased subject. However, not everyone knows whether guardians are included in this category of legal successors.
Let's consider whether the guardian has the right to inherit the ward after his death.
Guardian of a minor
According to Federal Law No. 48-FZ dated April 24, 2008, guardianship means the form of the device:
- citizens under the age of 14;
- persons declared legally incompetent.
Guardian information:
- appointed by the guardianship and trusteeship authority;
- may be either relatives or strangers to the ward;
- are the legal representatives of the above citizens and are authorized to perform any legally significant actions in their interests;
- transactions with real estate and other property of the ward are carried out by guardians only with the consent of the guardianship authority.
The responsibilities of guardians of minors include:
- caring for the health of the ward;
- protection of his property interests;
- education of minors;
- providing them with education.
Guardianship is appointed over a minor in the event of the death of parents, deprivation of their rights, unknown absence, personal removal from child care, or imprisonment.
Important! A minor child retains his first name, surname, and patronymic.
The state pays monthly funds to the guardian of a minor for the maintenance of the ward citizen. Control over the use of targeted public funds is exercised by the guardianship authority.
Is the guardian of a minor a first-degree heir?
The guardian of a minor may be a relative or a stranger, including foreign citizens. Restrictions on the appointment of guardians are described in Article 146 of the RF IC.
The procedure for selecting a suitable candidate is enshrined in Government Decree No. 423. Preferential right is given to the child’s relatives in order to preserve blood ties.
Since a minor citizen cannot draw up a will, the guardian cannot become a legal successor by will.
The recipients of the 1st stage are the children, parents, and spouses of the deceased. A minor is placed under guardianship because his mother and father cannot take care of him on their own; he simply does not have other first-degree relatives. Therefore, the guardian of a minor cannot be the primary claimant to the inheritance.
However, if the parents of the ward are deprived of parental rights, then they are unworthy successors. If the legal representative is his brother or sister, then they can become heirs by law.
Can a child's guardian claim his apartment?
The child's guardian can claim his apartment only as an heir by law. If guardianship is assigned to a brother or nephew, then in the absence of other recipients, the property will pass to the legal representative.
Guardian of an incapacitated person
Guardianship over adult citizens is appointed if they are declared incompetent by a court decision due to a mental disorder. The guardian does not receive payment for the performance of his duties. In most cases, close relatives (children, spouses) become guardians of adult incapacitated citizens.
If the ward is assigned a disability pension, then the legal representative has the right to receive funds and spend them in the interests of the ward.
Can wards use the assets of their guardians? Yes, but only with their consent. Whereas guardians are prohibited from using the property of their wards for personal interests.
Is the guardian of an incapacitated person an heir of the 1st stage?
When assigning guardianship to adult citizens, their relatives (parents, spouses, brothers and sisters) have priority rights. According to the law, the guardian can be the heir of the 1st line.
In this case, a brother or sister can be appointed as a guardian. These persons belong to the heirs of the 2nd stage. Guardians do not have any additional preferences due to their status.
However, there is a reason why close relatives did not become guardians. If the children, spouse and parents refuse to care for the incompetent, they may be recognized as unworthy heirs. In this case, the property will be received by the brothers and sisters.
Can a guardian claim the ward’s apartment after his death?
The law does not exclude this possibility. For example, if the guardian is a close relative of the ward (spouse, father).
Heirs of the 2nd line can accept the property of the ward under the will. Provided that the document was drawn up long before the registration of guardianship. Also, succession arises in the absence of 1st line applicants.
Rights of a guardian after the death of the ward
Guardians are not the owners of the property of the citizens under their guardianship. Likewise, wards are not the owners of property that belongs to guardians (Article 17 of Federal Law No. 48-FZ). However, guardians and wards can be co-owners of certain property.
Example. Citizen P. became the guardian of her younger brother after the death of her parents. Although the girl was only 20 years old, there were no other relatives who could obtain guardianship.
Their grandmother was 80 years old and seriously ill. After the death of her grandmother, the girl and brother became the heirs of her apartment.
Since the testator did not allocate a share, the living space was divided equally, ½ share to each of the grandchildren.
Additionally, the guardian can count on reimbursement of expenses he incurred in connection with the funeral of the ward or protection of the inheritance (Article 1174 of the Civil Code of the Russian Federation). The maximum amount of compensation for the burial of a citizen is 100,000 rubles .
The money is reimbursed from the opened inheritance. Funds can be withdrawn from the bank account ahead of schedule. For example, if the testator opened an account and/or placed a deposit during his lifetime. Money is issued based on a notary's decree. However, the applicant for compensation must first contact the guardianship authority.
Rights of a ward after the death of a guardian
The law classifies a minor or incompetent ward as a dependent of the deceased. Therefore, they enter into inheritance regardless of the method of inheritance.
Possible options:
- Acceptance of inheritance by law occurs in the order of priority. The first to enter into rights are children, parents, and spouses. After them come brothers and sisters, etc. The ward enters into the inheritance together with the inheritor, as a dependent. He is entitled to a share equal to the shares of other recipients.
- You can change the usual order with the help of a will. The heir can assign his property to any person. For example, a business partner, a neighbor in the country, or a nephew. The ward may also be the heir of the guardian under a will.
Even if a citizen wanted to deprive the ward of a share in the inheritance, a limitation is provided - a mandatory share of the inheritance. It is due to young children, disabled parents or dependents of the testator. The ward has the right to ½ share of the property that he would receive by law.
If there is a will
An administrative document allows you to change the order of inheritance and the composition of applicants for the testator’s property. However, there are some limitations.
A guardian can assume property rights provided that a will was drawn up in his name before the citizen was declared incompetent. Otherwise, the order will be declared invalid in court.
Whereas the guardian is unlimited in his expression of will. He can freely assign his property to the ward. Naturally, the new guardian or adoptive parent will accept the property in the interests of the ward.
A young child does not have the right to write a statement of will on his own. The law does not provide for the possibility of formalizing an expression of will through a representative.
Inheritance of property of a ward
The procedure for entering into inheritance is determined by law.
Algorithm of actions of applicants
No.Action| 1 | Preparation of documents | The heirs need to collect papers that confirm their involvement in the deceased subject and his property |
| 2 | Submitting an application to a notary office | You must declare your rights within 6 months. Failure to contact a notary in a timely manner will result in loss of property rights. The papers are submitted to the residential address of the deceased ward. |
| 3 | Obtaining a certificate of inheritance | The document is issued 6 months after the death of the testator. The certificate is issued after payment of the state fee. Its size depends on the degree of relationship between the beneficiary and the deceased citizen. The necessary calculations are made based on the property value report. You can order an assessment 2 weeks before contacting a notary. |
| 4 | Registration of ownership | The basis for registering property with the state is a certificate issued by a notary. Where exactly the heir should apply depends on the type of property being registered. Real estate registration is carried out at the Rosreestr branch. Papers can also be submitted through the MFC. |
After receiving an extract from the Unified State Register of Real Estate, ownership passes to the heir. After which he can sell, donate or bequeath the property to third parties.
Allocation of spousal share
If the estate includes property that belongs to a living spouse, then he can submit an application to a notary for the allocation of the marital share. The action is carried out within 6 months . The remainder of the property is distributed among the heirs by law/testament.
Guardians can claim the property of the ward in 2 cases - they are close relatives of the testator or under a will. The second option has some features. The order must be drawn up exclusively by an adult citizen and before the person is declared incompetent.
Otherwise, it will be declared invalid. To avoid getting lost in legal labyrinths, it is advisable to consult a lawyer. You can request a call back on our website. The lawyer will study the circumstances and tell you what your chances are of accepting the inheritance after the death of the ward.
- Due to constant changes in legislation, regulations and judicial practice, sometimes we do not have time to update the information on the site
- In 90% of cases, your legal problem is individual, so independent protection of rights and basic options for resolving the situation may often not be suitable and will only lead to a more complicated process!
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Does a guardian have the right to the inheritance of the ward after his death?
Home » Inheritance » Does a guardian have the right to inherit the ward after his death?
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A guardian occupies an important place in the life of his ward - he replaces parents or performs an important task of maintaining a decent existence for an adult but incapacitated citizen.
Whether he is endowed with special property privileges and the right of inheritance in relation to the ward is a subject of debate at the everyday level.
The law has already indicated the answer to this question; all that remains is to identify it from individual provisions of regulatory legal acts.
Basic Concepts
Property relations between a guardian and a ward are established by law and arise from their legal status.
Ward in st. 2 Federal Law No. 43-FZ of April 24, 2008 is defined as a completely incompetent citizen who is deprived of the right to carry out transactions, dispose of his property and perform duties due to the lack of an objective perception of the environment, assessment of his actions and their possible consequences.
The following were declared incompetent:
- minors (under 14 years old);
- adult citizens in a state of long-term mental disorder, which is an obstacle to an adequate thought process and understanding of reality*.
* - declared as such by the court.
The described category of citizens is considered vulnerable. To ensure normal living conditions and realize their legitimate interests, they need care and support, which is what guardianship embodies.
This form of placement of incapacitated persons provides for the appointment of a guardian to a citizen in need - a person who will perform legally significant actions and represent the legitimate interests of his ward.
The decision to appoint a guardian is finally made by the guardianship and trusteeship authority, with the prior consent of the minor or incompetent person in whose direction the guardianship is being issued. In this case, preference is given to:
- Grandparents, adult brothers and sisters of a minor.
- The spouse, adult children, grandparents, brothers, sisters and grandchildren of a disabled person over 18 years of age.
Extracts from inheritance law
The property rights of the deceased can be accepted by his heirs by law or by will.
Succession by law takes place in cases where the testator did not establish otherwise during his lifetime, that is, in the absence of a will. Art. 1142–1145 of the Civil Code of the Russian Federation establishes the circle of possible heirs and the sequence of their calling to inheritance:
- first priority - spouse, parents, children (grandchildren - by right of representation);
- second stage - brothers, sisters (nephews), grandfathers, grandmothers;
- third - aunts and uncles (their children);
- the fourth - parents' grandparents;
- the fifth - grandchildren of brothers and sisters, uncles and aunts of parents;
- sixth - great-grandchildren of brothers and sisters, grandchildren of uncles and aunts, nephews of grandparents;
- the seventh is the legitimate children of the official spouse or, conversely, the official spouse of the legal parent.
A prerequisite for inheritance by relatives is the presence of documentary evidence of their connection with the testator (marriage certificate, birth certificate).
Illegalized relationships - civil marriage, lack of official recognition of children by parents or deprivation of their parental rights - are not recognized from a legal point of view, and therefore cannot serve as a basis for succession.
A registered relationship with adopted children, on the contrary, equates them to the status of relatives.
However, the entire procedure described can change radically if it is the will of the testator. According to his own considerations and with the support of current legislation, he has the right to assign his property even to a foreign state, depriving his heirs of the established privilege. This is the main difference between the legal and testamentary modes of inheritance.
Does the guardian have the right to inheritance?
The status of a guardian in itself is not a basis for including a citizen performing guardianship functions in the circle of heirs of the ward. This is confirmed by paragraph 1 of Art. 17 Federal Law No. 43-FZ, which denies the right of claim of the parties to guardianship in relation to each other’s property. Moreover, in accordance with paragraph 3 of Art.
37 of the Civil Code of the Russian Federation, transactions concluded with a guardian or members of his family are deprived of legal force. That is, they cannot become heirs under the will. But in practice, everything is not so clear.
The representative of the ward appointed by law has the right to become an heir both by law and by will, but subject to certain conditions.
In what cases is succession by will possible?
In order to independently carry out transactions, a citizen requires full legal capacity. The same applies to the right to leave posthumous dispositions regarding one’s property, in other words, to the execution of a will.
And the ward, due to his status, cannot carry out such actions.
But this restriction is completely lifted with the termination of guardianship due to the recognition of the ward as legally competent based on the following circumstances:
- restoration of the ability to understand and control one’s actions as an adult (requires court confirmation);
- the citizen reaches 18 years of age;
- emancipation of a minor (marriage, employment under an agreement or contract, entrepreneurial activity).
Only in the cases listed above can a fully legally capable testator draw up a legally significant will, including in favor of his former guardian.
Is the guardian a first-degree heir?
If we turn to the procedure of inheritance by law, then the guardian here has much more opportunities to become the legal successor of the person entrusted to him. It all depends on the current queue of heirs and whether he is one of them.
A guardian can become a first-degree heir only in relation to an adult ward if he is his spouse, child or grandchild (in the case where the parents and/or children of the testator have died).
Brothers, sisters, grandfathers, grandmothers who have taken guardianship over their relative have the right to receive his property on the basis of belonging to the second line of inheritance and in the absence of applicants to the first.
Guardians from other categories of relatives can count on inheritance only if they belong to the priority group of heirs - they do not have any advantages over other legal successors.
How to inherit an inheritance for a guardian
If there are grounds for this, the guardian can establish his inheritance rights by performing the following algorithm of actions:
- Step 1. Collection of documents. You will need: a will or certificate of kinship, deeds of title and valuation of inherited property, a certificate of deregistration of the testator, a death certificate.
- Step 2. Visit to the notary at the place of last residence of the deceased (the location of the most valuable real estate, and in their absence, movable assets, if the residence address of their owner is not determined or is located abroad of the Russian Federation).
- Step 3. Writing an application for acceptance of the inheritance or issuance of a certificate of right to it. On paper, in capital or printed text, the desire of the applicant to enter into inheritance rights and the powers to do so is stated, the personal and contact information of the applicant and the notary, date, and signature are also indicated.
- Step 4. Submitting an application and package of documents to a notary. They must be accompanied by a receipt for the state fee if the successor intends to receive a certificate of the right to inheritance (the monetary fee is 0.3% of the assessed value of the accepted property for a brother, sister, children, spouse and 0.6% for all other categories of citizens).
- Step 5. Obtaining a certificate of title. This stage is the final stage, then only state registration of movable, immovable assets or land ownership.
Registration of the inheritance must be carried out within six months from the date of death of the testator, otherwise the rights to it will be canceled with the possibility of restoration through the court.
Therefore, it is recommended to begin the procedure for acquiring property rights in advance.
And if the successor has difficulty collecting the necessary documents, the first step is to submit an application for acceptance of the inheritance to the notary in order to record his appeal within the prescribed time.
You can enter into inheritance in another way, much easier, but with significant risks of complications. The actual method of accepting the property of the testator is by law equivalent to the notarial method (Article 1153 of the Civil Code of the Russian Federation), but is initially carried out without collecting papers, paying state fees and visiting authorities.
To effect actual succession, the heir will need to perform at least one of the following actions:
- Pay the testator's debts in whole or in part.
- Start repairing the received property.
- Provide care and protection of inheritance.
- Pay sums of money for its maintenance.
- Manage and/or use inherited property.
- Receive the money due to the testator.
However, even if none of the other successors tries to register the same property with a notary, the actual heir will still have to resort to legal proceedings and prove acceptance of the property due to him within the prescribed period. This will be more difficult to do than through a notary. But there is no other option for further registration.
Right to part of the common property
Clause 2 Art. 17 Federal Law No. 48-FZ allows for the existence of indivisible property owned in certain shares by the guardian and the ward.
If its division did not occur during the life of the ward, the guardian has every right to request the allocation of his part after the death of the co-owner.
If you have official papers indicating the size or ratio of shares, this will not be difficult to do. It is enough to contact a notary with the appropriate application and title document.
In the case where the individual parts of the common property are not defined, they are considered to be equal. But, if the successors of the ward have complaints about this, they can go to court with the intention of challenging the division carried out and demanding a reduction in the guardian’s share.
The right to part of the property common with the ward does not deprive the guardian of the opportunity to inherit, provided that he belongs to the priority category of heirs.
The inheritance rights of guardians are often denied, but after delving into the essence a little, it becomes clear that this does not correspond to reality.
But it can be difficult for such an heir to competently substantiate his position in the light of certain circumstances.
And in order to prevent violation of your legitimate interests, it is better to contact the lawyers of the site ros-nasledstvo.ru. The first consultation regarding the issue raised is free.
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