According to the general rules of inheritance, the right to inheritance arises on the day of opening the inheritance, and the inheritance is opened due to the death of the person or declaring it deceased and for the acceptance of the inheritance a six-month period is established that begins with the opening of the inheritance in accordance with articles 1220, 1222, 1269, 1270 and 1272 of the Civil Code of Ukraine.
On the basis of the provisions of Part 1 of Article 1269 of the Civil Code of Ukraine – the heir who wishes to accept the inheritance, but did not permanently reside with the testator at the time of opening the inheritance, must file an application with the notary for acceptance of the inheritance.
Consequently, the right to inheritance arises from the moment of its opening, in connection with which the heir, who did not permanently reside with the testator, must file a declaration of acceptance with a notary or a notary office at the place of opening the inheritance within six months.
According to the third part of Article 1272 of the Civil Code of Ukraine and paragraph 3.16. on the suit of the heir, who missed the deadline for accepting the inheritance for good cause, the court can determine to him an additional period sufficient to file an application for acceptance of the inheritance.
According to the provisions of Article 1271 of the Civil Code of Ukraine, valid reasons for missing the time limit for accepting the inheritance are the reasons connected with objective, insurmountable, significant difficulties for the heir to commit actions for the acceptance of the inheritance.
It is important to point out the position of the Supreme Court of Ukraine, in a decision of November 4, 2015 in case No. 6-1486 c15:
“… In accordance with part three of Article 1272 of the Civil Code of Ukraine on the claim of the heir, who missed the deadline for accepting the inheritance for good cause, the court can determine to him an additional period sufficient to file an application for acceptance of the inheritance. According to the contents of the above-mentioned article, valid reasons for missing the time limit for accepting the inheritance are those that are related to objective, insurmountable, significant difficulties for the heir to commit these actions … “.
So, the court can be taken into account, in order to recognize the validity of the reasons and applied, if the heir had real obstacles to filing such a statement. And this is why these circumstances are recognized by the court as valid.
In practice, some plaintiffs ask the court to “determine”, “establish” and “provide” an additional period for the acceptance of the inheritance. We are convinced that it would be most appropriate to formulate the wording of the Civil Code, namely, “to determine” the term. According to the Academic Dictionary of the Ukrainian language, “determine” – to establish, recognize something according to certain characteristics; calculating, measuring, etc., to find a definite value, place, etc.; allocate, assign someone anything for what purpose; specify, assign a place, time, etc. for something; to schedule for execution; to cause something, to be the cause of something.
Sufficient time for acceptance of the inheritance will be a period of 2 to 3 months, taking into account the necessary time for the court to make a decision, entry into legal force and appeal to the notary with the necessary documents.
It is important to recall the state registration and the receipt of a relevant death certificate. According to Part 1 of Article 17 of the Law of Ukraine “On State Registration of Civil Status Acts,” the state registration of death is carried out by the state registration of acts of civil status on the basis of:
1) a document of the established form of death issued by a health care institution or a forensic medical institution;
2) a court decision to establish the fact of the death of a person at a certain time or to declare it dead.
In part 2 of Article 17 of the Law, it is stated that the application for state registration of death is submitted not later than three days from the date of death or the discovery of a corpse, and in case it is impossible to obtain a document of a health care institution or a forensic institution – no later than five days.
And according to part 3 of article 17 of the Law, the state registration of death on the application submitted within the time limits specified in part two of this article, and before the expiry of one year from the date of death, is carried out at the last place of residence of the deceased, at the place of death or detection corpse or at the burial place.
In the event of death on the road (on a train, on a ship, on an airplane, etc.), state registration of death can be carried out at the nearest state registration body for acts of civil status.
State registration of death is carried out at the request of the relatives of the deceased, representatives of the guardianship and trusteeship agency, workers of housing maintenance organizations, the administration of the health care institution where the death occurred, and other persons.
The corresponding certificate is issued by the department that committed the state registration of the death of the person of the testator.
Because of “ignorance of the death of the testator.”
The Supreme Court of Ukraine in the above decree of November 4, 2015 also formed a position: “… Ignorance of the death of the testator as a reason for missing the time limit for accepting the inheritance can not be recognized as valid, because in itself this circumstance, without setting other objective, insurmountable, significant difficulties to commit actions to accept the inheritance does not indicate the validity of missing the specified period. .. “.
Who does not need to worry about missing the deadline for accepting the inheritance. According to Part 3 of Art. 1268 of the Civil Code of Ukraine: “… the heir who permanently resided together with the testator at the time of opening the inheritance is considered to have accepted the inheritance, if during the period established by Article 1270 of this Code he did not declare his refusal.” In practice, sufficient evidence that the heir resided with the testator, may be a certificate of registered persons in the room.
On individual issues of inheritance of certain categories of persons, on the basis of legal capacity. A minor, minor, incompetent person, as well as a person whose legal capacity is limited, are considered to have accepted an inheritance, except for cases of renunciation of inheritance in accordance with the procedure established by the legislation of Ukraine.
In case of refusal of minors and incompetent persons – it is carried out on their behalf by parents (adoptive parents), guardian with the permission of the guardianship and trusteeship authority.
In a letter sent by the VSSU on May 16, 2013, No. 24-753 / 0 / 4-13 “On Judicial Practice of Consideration of Civil Affairs on Inheritance,” the following is stated: “Courts predominantly correctly resolve the issue of validity of the reasons for missing this deadline and recognize as valid:
In this letter, VSSU also formed the reasons for missing the terms for the acceptance of the inheritance, can not be recognized by the court as valid, namely:
Separately, we draw attention to the fact that, in accordance with para. 5 p. 24 of the Resolution of the Plenum of the Supreme Armed Forces of Ukraine dated May 30, 2008 No. 7 – the repeated determination by the court of an additional time limit for filing an application for acceptance of an inheritance by the same heir is not provided by law.
Due to circumstances in which it is not necessary to apply to the court to restore the time for acceptance of the inheritance.
According to paragraph 3.18. “Order of notarial actions by notaries of Ukraine” committed by the Order of the Ministry of Justice of Ukraine on February 22, 2012 № 296/5 (hereinafter – the “Order”):
No appeal is required to the court to determine an additional period sufficient for the acceptance of the inheritance, if all the heirs who have accepted the inheritance will file a written statement of consent to the acceptance of the inheritance by the heir, who has missed the time limit for accepting the inheritance. Such statements of the heirs must be submitted to the notary before the certificate of the right to inheritance is issued.
Also according to paragraph 3.19. Order, thereafter, in the presence of such consent to the heir, who missed the deadline for acceptance of the inheritance, it is necessary to file an application for acceptance with the notary at the place of opening the inheritance.
So, given the foregoing, if you miss the deadline for the inheritance of the heir, there are two legal ways to restore and obtain an inheritance:
In court it is necessary to justify the validity of the reason for missing the specified period, for example: a long illness, the presence of an heir for a long time outside of Ukraine, serving a sentence in places of deprivation of liberty, staying on urgent military service in the Armed Forces of Ukraine, etc. And, accordingly, and admissible evidence.
In respect of persons serving a sentence in the institution of execution of punishments.
From the theoretical point of view, in the event that a person does not have the opportunity to come personally to the notary’s office at the place where the inheritance is opened to file and certify the application, in connection with the serving of a sentence in the form of deprivation of liberty, it is possible to write to the head of the institution, in writing, meeting with the notary of the notary district concerned, where the institution is located.
Therefore, during the meeting, the notary certifies the statement of the convicted person about the acceptance of the inheritance. This possibility is usually determined if the colony has a minimum level of safety. However, as practice shows, it is easier and faster to witness such a declaration by the head of the institution with his signature and seal.
So, the application is sent to the administration of the institution, and within three days is sent to the notary office at the place of opening the inheritance. However, in case of missing the terms of acceptance of the inheritance, a notarized office shall issue a reasoned decision to refuse to perform a notarial act.
Subsequently, through a representative, a person serving a sentence after receiving this decision, files an action for determining an additional period for the acceptance of the inheritance, indicating the circumstances and validity of the reasons for the pass, namely, serving the sentence by providing the necessary written evidence and explanations.
Separately note that in practice, in 99% of cases, notaries in such situations, in violation of the requirements of the said Order, provide a letter-notification that the deadline is missed for filing an application for acceptance of the inheritance. It is important to point out that even if the deadline is missed, the notary must open the hereditary case. This is an exclusively technical aspect that does not guarantee the issuance of a certificate of inheritance to the applicant.
It is not ruled out that in the presence of another heir, who properly initiated the hereditary case, and with a view to preventing new heirs, he claims to enter the case as a third person. The court can attract such an heir, and he, in turn, will prove the importance of missing your deadline for the acceptance of the inheritance. Since he is interested in excluding other heirs from the hereditary case.
What about the opening of the inheritance, if the testator and his property in the temporarily occupied territory of Ukraine?
According to the provisions of Art. 11-1 The Law of Ukraine “On Ensuring the Rights and Freedoms of Citizens and the Legal Regime in the Temporarily Occupied Territory of Ukraine” of 15.04.2014 states:
“1. If the last place of residence of the testator is the temporarily occupied territory, the place of filing the first application is the place of opening the inheritance, which indicates the will of the heirs, executors of the will, people interested in protecting the inheritance property, or creditors’ claims.
That is, in such a situation, the place of opening the inheritance is the place where the first application for acceptance by the heir is filed.
So, taking into account the foregoing, our lawyers are ready to provide you with high-quality legal services in case of missing the terms of acceptance of the inheritance, to issue and prepare the necessary documents for the notary and / or to solve the disputable issue of inheritance in court.