Many perceive inheritance matters as a simple formality: there is a will – it means everything has already been decided, you did not help your parents – you do not have the right to an inheritance, it is registered in the apartment – it means you are automatically an heir. In practice, everything looks much more complicated. Among dozens of circumstances and nuances, there is one that causes the most controversy: living together with the testator at the time of his death. It often depends on this whether a person will receive the property he claims. But what is “residence” – physical presence, registration, the fact of living together or something else? And is just one stamp in the passport always enough?
The editors of IA “FACT” turned to the lawyers of the “Repeshko and Partners” bar association to find out how the rule that the heir who lived with the deceased at the time of the opening of the inheritance is considered to have accepted it is applied in practice. The focus is on situations when the heir was registered at a different address, but actually lived with the testator, or vice versa – was registered, but did not actually live. The experts explained which documents are of crucial importance for a notary, when an appeal to the court is required, in which cases a lawsuit is filed to establish the fact of residence, and in which cases to establish the fact of residence.
Permanent residence of the heir and inheritance
The law stipulates that the heir, who lived permanently with the deceased at the time of the opening of the inheritance, is considered to have accepted this inheritance. This works on the condition that he has not submitted an application for refusal of inheritance within six months from the day of its opening – this is the period stipulated by Article 1270 of the Civil Code of Ukraine.
It is possible to confirm the fact of joint residence with the testator with the following documents: an extract from the register of the territorial community, a certificate of registration of the place of residence or any other document confirming this fact. Notaries are guided by this evidence when they check whether the heir lived with the deceased permanently. For a notary, the main thing is the official registration of both persons at the same address at the time of the testator’s death. If the relevant documents are provided, the notary issues a certificate of the right to inheritance, regardless of whether it is inheritance by law or by will.
Separately, it is worth paying attention to the provisions that concern minors, minors, incapacitated persons, as well as persons with limited civil legal capacity. All these categories are considered to have accepted the inheritance automatically – with the exception of the cases directly provided for by the second – fourth parts of Article 1273 of the Civil Code, that is, when a statement of refusal was submitted, drawn up in accordance with the requirements of the law.
However, in real life, situations are more complicated. It often happens that the heir actually lived with the testator, but was not registered at the same address. It also happens the other way around – he was registered, but in fact he had not lived with the deceased for a long time. In the first case, the notary cannot automatically recognize that the heir has accepted the inheritance, so it is necessary to submit an application for acceptance of the inheritance within a six-month period. After its end, the notary, in the absence of registration, will issue a decision on refusal to perform a notarial act. In such cases, the only way forward is to go to court.
Depending on the circumstances of a specific case, a lawsuit can be filed with the court with the following requirements:
– to establish the fact of permanent residence of the heir at the time of the opening of the inheritance (the day of the testator’s death) together with the testator;
– or establish the fact that on the day of the testator’s death, the heir did not actually live with him at the testator’s registered address.
Since the establishment of one of these facts is often decisive for the further processing of the inheritance, the claim must also ask the court to recognize the ownership of the inherited property. Without this, even a positive decision of the court on residence or its absence will not give a legal result — the right to inheritance will remain unregistered.
The matter of establishing the fact of permanent residence
Cases of establishing the fact of permanent residence with the testator have their own specifics. In such processes, all other heirs must be involved, regardless of whether they claim to inherit. The court considers the evidence confirming the fact of living together with the testator on the day of his death. These can be various documents: acts, certificates, declarations with a doctor, testimony of neighbors or relatives – everything that can justify actual cohabitation.
The case with which our lawyers worked is illustrative. At the end of 2022, a woman registered in the Kupyan district of the Kharkiv region, in a rural area, died. Due to a serious illness, she actually lived with her daughter in Vasishchev village of Kharkiv district for the last three years. After her death, the daughter, despite the fact that she was the only one for whom the will was drawn up, did not submit an application for acceptance of the inheritance to the notary within the six-month period. As a result, when she applied for registration of several hectares of agricultural land, the notary refused her. The daughter was sure that since there was a will and she was taking care of her mother, no additional actions were needed. However, the lack of registration at one address was the reason for the refusal.
The only option was to appeal to the court, which was provided with the following documents:
– a will certified by a private notary of the Kharkiv district notary district of the Kharkiv region. It states that the document was issued to the woman’s mother due to her health condition at the address where they lived together. The will was signed by another person on behalf of the mother, in the presence of two witnesses;
– a declaration on the choice of a doctor, signed by the woman’s mother, with a medical institution of the Kharkiv district at the same address in the town of Vasishchevo, which testifies to the actual residence there;
– a death certificate, in which the place of death is also indicated as the village of Vasishchevo, Kharkiv district;
– information from the Bezlyudivska settlement council that the mother lived with her daughter in accordance with the deputy’s act, starting from a certain date until her death;
– the act of the deputy of the village council, drawn up in the presence of neighbors, in which it is confirmed that the woman lived at this address from 2019 until the day of her death;
– a medical death certificate, which also confirmed that the death occurred at the same address.
The court recognized the arguments as well-founded, established the fact of the daughter’s permanent residence with the testator, recognized her as an heir and ordered to issue the ownership right to the land plot. This case clearly demonstrates that each inheritance case is individual. It is impossible to determine in advance which documents will be decisive. That is why it is important to analyze the circumstances comprehensively and seek legal help in a timely manner in order not to lose inheritance rights due to formalities.
In letter No. 24-753/0/4-13 dated May 16, 2013, the Higher Specialized Court of Ukraine for consideration of civil and criminal cases clarified the position of the courts in cases where the heirs permanently lived with the testator, but were registered at a different address. In such situations, courts should be guided by the following.
According to Article 29 of the Civil Code of Ukraine, the place of residence of an individual is considered to be a residential building, apartment or other habitable premises (for example, a dormitory or hotel) in the settlement where this person lives permanently, mainly or temporarily. The place of residence should be clearly distinguished from the place of stay – that is, the place where a person is only temporarily and does not live on a permanent basis.
Article 1268 of the Civil Code specifies that for inheritance by law or by will it is necessary to have an actual cohabitation with the testator at the time of the opening of the inheritance, and not to register at the same address. These concepts are not identical.
If the fact of such permanent residence is not documented, the notary has the right to refuse to perform a notarial act regarding registration of inheritance. In such a case, the heir has the right to apply to the court not with a request to establish the fact of acceptance of the inheritance, but rather with a request to establish the fact of permanent residence with the testator at the time of the opening of the inheritance. This legal position was also confirmed in the opinion of the Supreme Court as part of the panel of judges of the Third Judicial Chamber of the Cassation Civil Court in case No. 750/12880/19.
The case of establishing the fact of non-residence with the testator
There are also reverse situations – when a person was registered with the testator, but did not actually live with him. In such a case, any of the heirs who have properly accepted the inheritance may apply to the court. If the lawsuit is filed by only one heir, the other heirs must be involved in the case as third parties.
An illustrative example is a case in which two lawsuits were filed at the same time. A mother, father and son were registered at an address in the city of Kharkiv. At the same time, the son lived in the Russian Federation for a long time, in fact he did not live with his parents. After the death of the father, the car was inherited. Its registration for a person who will not actually appear in Ukraine created difficulties. Therefore, two lawsuits were filed: the first one was about recognizing the son as having lost the right to use the residential premises due to non-residence for more than two years; the second – about establishing the fact that the son did not live with his father on the day of the latter’s death and recognizing the mother’s ownership of the car.
The following evidence was presented in the case:
– two acts, drawn up with a difference of one and a half months, based on the results of a household survey with witnesses, in which it is recorded that the son is absent from the house, his belongings have not been there since 1993; according to his mother, he is either in the territory of Ukraine or in Russia;
– a certificate from a communal health care facility, which confirms that the son was not called by the district doctor at the address of registration and that the declaration was not made with the doctor;
– a certificate from the police department of the State Government of Ukraine in the Kharkiv region, according to which the relevant databases did not receive information about preventing the son from using housing at the place of registration;
– a court decision in absentia by which the son was recognized as having lost the right to use the residential premises due to long-term non-residence.
As a result, the court satisfied the claims – the son was removed from inheritance by law.
Both types of cases — both about residence and non-residence — can be considered in the order of separate proceedings, that is, without directly resolving the issue of ownership. If the court approves such an application, after the decision has entered into force, it is necessary to contact a notary to register the inheritance. At the same time, the notary public should be included in the case as an interested person.
If the right to inheritance directly depends on the establishment of a certain fact, the person has the right to apply to the court with a corresponding application. In the absence of a dispute, such an application is considered according to the rules of a separate proceeding. In this order, the courts consider, in particular, applications to establish family ties with the testator, living with him in the same family, the fact of permanent joint residence at the time of the opening of the inheritance, as well as the fact of acceptance of the inheritance, if it was opened before January 1, 2004.
It should be noted that a separate category of such cases is those related to inheritance, which was opened during the Civil Code of the Ukrainian SSR in 1961. In such cases, the courts should not apply the provisions of the new Civil Code of 2003, but should proceed from the norms in force at the time of the opening of the inheritance. This is important, because before January 1, 2004, the procedure for acceptance of inheritance was regulated differently: the Central Committee of the Ukrainian SSR provided for the possibility of actual acceptance of inheritance — for example, through taking possession or management of inherited property.
A peculiarity of inheritance under the old Civil Code was also that the terms for obtaining a certificate of the right to inheritance were not established either for the heirs or for the state. That is why even today there are cases where it is a matter of inheritance accepted back in the 1960s, 70s or 80s.
In such cases, the heir must apply to the court to establish the fact of acceptance of the inheritance after the death of the testator. Important: the heir who accepted part of the inheritance is considered to have accepted the inheritance as a whole. For example, in order to inherit a house, it is enough to prove that after the death of the mother, the daughter took the embroidered towels that are still kept in the family, or the sofa that is still standing in the summer kitchen and is used by the family.
Evidence in such a case can be: photos of things, acts of living in an inherited house, drawn up with the participation of witnesses, testimony in court under oath.
However, each situation is unique. Since inheritance often includes property of great value, any mistake or delay can lead to a complete loss of rights to it. That is why in such situations you should immediately contact a lawyer. One untimely or incorrectly executed document can cost not only the inheritance, but also the only home.
