As it is not a shame to state, the topic of inheritance sooner or later becomes relevant for everyone. The order of inheritance, both by law and by will, is clearly regulated by legislation and does not cause particular difficulties in implementation. But the aggression of the Russian Federation in the East of the country made adjustments to the usual order of inheritance and significantly complicated the mechanism of obtaining inherited property by the heir. If you are faced with the problem of inheritance from the territory of an anti-terrorist operation and do not know how to accept an inheritance, how to receive inherited property and how to process it correctly so as not to lose everything, this article is for you.
Acceptance of inheritance AFTER the start of the conflict in Donbas and Luhansk region
I. _ Obtaining a death certificate
If you follow the legislation, then in accordance with the new Law of Ukraine “On the Peculiarities of State Policy to Ensure State Sovereignty of Ukraine in the Temporarily Occupied Territories in Donetsk and Luhansk Oblasts” No. 2268-VIII of January 18, 2018. documents confirming the fact of birth or death of a person in the temporarily occupied territories in the Donetsk and Luhansk regions are valid and generate legal consequences, that is, they do not require additional recognition in the territory under Ukrainian control. This means that if the occupation authorities of the so-called “DPR” or “LPR” issued a death certificate of a person, it should automatically be recognized on the territory of Ukraine.
However, in practice, this rule does not work, and RACs still require first to obtain a court decision on the recognition of the fact of death and only on the basis of this decision issue a state-style death certificate.
Therefore, in order to obtain a death certificate, the relatives of the deceased or their representatives must apply to the local court in the territory of Ukraine at their registered place of residence or at their temporary registered place of residence (on the basis of a certificate of registration of an internally displaced person) with an application for recognition of the fact of the person’s death in order of Art. 317 of the Civil Code of Ukraine. Such a statement is considered by the court immediately in the order of a separate proceeding. In this application, as an interested person, the relevant RATS should be involved and evidence should be added that confirms the fact of the person’s death in the non-controlled territory. Such documents are: a death certificate issued by the occupation authorities; certificate from Likrani about the cause of death; documents certifying family ties with the deceased (birth certificate, marriage certificate, etc.). Additionally, you can attach certificates, checks,
After receiving a court decision on the recognition of the fact of death, it should be submitted to the relevant RACS, which will issue a state-style death certificate.
II . Appeal to the notary
In order to accept the inheritance, the heir should apply with a personal application for acceptance of the inheritance (or refusal to accept the inheritance) to any public or private notary in any settlement on the controlled Ukrainian territory. In case of impossibility of personal application to the notary, this application can be sent by post, but in this case, the signature on it must be notarized. The deadline for submitting such an application is six months from the moment of the opening of the inheritance, that is, the death of the testator or his recognition as deceased.
If the application is not submitted within the specified period, it is considered that the right to inheritance is lost. This term can be extended in court if no one has accepted the inheritance by that time and if the term was missed for valid reasons. For example, due to the impossibility of leaving the territory of the ATO in the required time, delaying the court’s consideration of the application to establish the fact of the death of the person-heir, etc. In such a case, you should apply to the court with a statement of claim to determine an additional term for accepting the inheritance and prove the fact of the existence of important circumstances. In case of satisfaction of the claim by the court, the right to receive the inheritance will not be lost.
After submitting an application for acceptance of inheritance, the notary opens an inheritance case and issues a certificate to the heir with a list of documents that are necessary for registration of the inheritance, indicating the amount of the fee for performing notarial actions.
III . Repeated application to the notary
You should re-apply to the notary and obtain a certificate of the right to inheritance after six months have passed since the opening of the inheritance or even much later – the issuance of the certificate of the right to inheritance to the heirs is not limited by any time limit.
When accepting an inheritance by an heir by law, it is necessary to submit the following documents to the notary in advance:
- Death certificate of the testator.
- Documents certifying family ties (birth certificate, marriage certificate, etc.).
- Documents confirming the testator’s ownership of vehicles, bank accounts, etc. (title certificate, sales contract, etc.). If real estate is part of the inheritance, documents confirming the testator’s ownership of it are not required, because the notary directly receives information from the State Register of Property Rights to real estate.
- Passport and identification code of the heir.
- Statement on the presence or absence of the rights of minors and minors, incapacitated or persons with limited legal capacity to use the alienated residential building, apartment, room or part thereof (a sample of the application can be obtained from a notary public).
As for the list of necessary documents, it should be noted that quite often notaries in similar cases require a certificate of family composition from the Regional Office at the place of residence of the testator, which must confirm the registered place of residence of the testator and his family members in the territory of the ATO. However, the Letter of the Ministry of Justice of Ukraine No. 1535/13/32-16 dated 03.03.2016 clarified that such a certificate from the EO should not be required.
In the case of inheritance by will, note that for some time some notaries continued to certify wills in an uncontrolled territory, while not having the opportunity to register such a will in the Inheritance Register, and entered information about the form used for the will into the Unified Register of special forms of notarial documents. As practice shows, in such a case, the heirs must legally recognize the certified will as valid.
If the notary refuses to perform a notarial act (opening an inheritance case, issuing a certificate of the right to inheritance, etc.), he is obliged to state the reasons for the refusal in writing and issue a corresponding resolution within three days. A notary is prohibited from unreasonably refusing to perform a notarial act. The notary’s refusal to perform notarial acts can be appealed to the court.
Acceptance of inheritance BEFORE the beginning of the conflict in Donbas and Luhansk region
If the inheritance case was opened before the beginning of the conflict in the non-controlled territory, it is actually impossible to “finalize” the inheritance in the controlled territory of Ukraine and obtain a certificate of ownership of the inheritance. After all, the heir is deprived of the right to re-apply to another notary public with an application for acceptance of the inheritance.
I. _ Search for a notary public
The first thing to do is to find out whether the notary who opened the inheritance case moved to the controlled territory of Ukraine. It is possible to find out through the Unified Register of Notaries of Ukraine. If the notary has left, you can continue to process documents with him. If the notary remained in the uncontrolled territory, keeping all the notarial archives at his disposal, the way out of such a situation would be to file a lawsuit in court for recognition of the right of ownership of the inherited property due to the impossibility of registering the inheritance in a notarial manner.
II . Appeal to the court with a claim for recognition of ownership of inherited property
In the event that the notary who opened the inheritance case is located in an uncontrolled territory, a lawsuit should be filed with the court for recognition of the right of ownership of the inherited property. A notary’s decision on refusal to perform a notarial act must be added to such a statement of claim. But due to the fact that it is impossible to obtain such a resolution due to the absence of the notary himself, one should first contact the regional department of justice with a request to receive information about the location of the inheritance case. The response to the request will provide information about the lack of access to the case with a recommendation to contact the court. The received answer will be a confirmation of the impossibility of notarizing the inheritance.
Therefore, inheritance in the ATO zone is complicated by many points that should be known before contacting a notary to obtain the right to inheritance. Therefore, if you have any problems with inheritance, contact an experienced attorney specializing in these matters. With its help, you will not be immersed in a long-term and complicated inheritance procedure in an uncontrolled territory, and you will definitely not be left without the property that belongs to you.
attorney’s assistant – practice partner
Bachynskyi and Partners JSC