Legal advice

Inheritance abroad: how not to lose your rights

The right to inheritance is an important component of ensuring the transfer of the property of the deceased to his heirs. At the same time, for the realization of this right, the legislation of Ukraine sets a clear time limit – six months from the day of the opening of the inheritance. Missing this deadline can lead to the loss of the right to inheritance, if the heir cannot prove the reasons for his delay. One of the circumstances that often occurs in such situations is the presence of the heir outside the country. It seems to many that this is a strong enough reason for renewing the deadline. However, the legislation of Ukraine and judicial practice say otherwise: the fact of absence from the country in itself is not considered a valid reason for missing the deadline.

Lawyers of the “Repeshko and Partners” Bar Association commented on the legal aspects of such situations, explained the approach of the courts to the question of the validity of the reasons and provided advice on how to avoid the loss of inheritance and protect one’s rights even while staying abroad.

As you know, more than 10 million Ukrainians are currently abroad, and not a few of them plan to return to the Motherland. In addition, according to the reports of the Office of the United Nations High Commissioner for Refugees, 1.2 million Ukrainians were deported or voluntarily left for the internationally recognized territory of the Russian Federation and the Republic of Belarus.

Of course, those who left left behind their relatives and friends, sometimes a part of the family, almost all of them some kind of property. Life goes on, but in connection with this, some legal issues constantly arise. That is why one of the most urgent questions that concern Ukrainians is the following: is the heir’s stay outside the country a valid reason for missing the deadline for accepting the inheritance? What happens if the heir misses this period due to staying abroad?

According to ch. 1 Art. 1270 of the Central Committee of Ukraine for the acceptance of the inheritance, a period of six months is established, starting from the time of the opening of the inheritance. This norm applies without any exception to martial law, to combat operations on the territory of Ukraine. Six months and no options!

According to the requirements  Art. 1272 Central Committee of Ukraine the court, having found out the reason for missing the deadline, can determine an additional deadline for the heir to accept the inheritance. That is, if a citizen missed the 6-month deadline established by law for accepting an inheritance, then there are two options for the development of events – an additional deadline can be established for the following reasons:

– with the written consent of the heirs who accepted the inheritance. For this, it is necessary that there were other heirs who accepted the inheritance in a timely manner and they agreed to share the inherited property with the one who was late;

– on the basis of a court decision to establish an additional period sufficient for submitting an application for acceptance of inheritance. This option comes into effect when there are no other heirs who have accepted the inheritance or they exist, but they do not have a strong desire to share the inherited property.

Regarding the first option, everything is more or less clear, but in the judicial development of events, the interesting part begins. The decision of the Supreme Court dated May 22, 2019 in case No. 351/2403/17 (proceedings No. 61-21751св18) states that “when deciding the issue of determining an additional term for a person, the court must examine the validity of the reason for missing the deadline for accepting the inheritance. At the same time, reasons related to objective, insurmountable, significant difficulties for the heir to perform these actions are valid.

At the same time, important reasons for missing the deadline for acceptance of inheritance from the point of view of judicial practice are:

  • illness of the heir,
  • ignorance of the heir about the existence of a will,
  • difficult working conditions, which, in particular, are associated with long business trips, including foreign ones;
  • the need to obtain a death certificate of the testator with an apostille, since her death occurred abroad;
  • serving a sentence in places of deprivation of liberty;
  • stay of the heir in the military service of the Armed Forces of Ukraine;
  • a long distance between the place of permanent residence of the heirs and the location of the inherited property
  • and others, that is, the list is not exhaustive.

At the same time, from the point of view of judicial practice, the following are not valid reasons for missing the deadline for accepting inheritance:

  • legal ignorance of the claimant regarding the term and procedure for accepting the inheritance;
  • incapacity;
  • the person’s ignorance of the existence of inherited property;
  • old age;
  • lack of funds for travel to the place of inheritance opening;
  • adverse weather conditions;
  • being depressed due to the death of the testator;
  • uncertainty between the heirs who will receive the inheritance.

The stay of the heir for a long time outside of Ukraine was also considered a valid reason for missing the deadline for accepting the inheritance. Indeed, the number of our citizens abroad in peacetime was a small part of the population, most of whom were there on business trips or simply worked. However, the present has made its adjustments. Now this is the most interesting point, because in itself being outside Ukraine does not deprive a person of the right to apply to the consular office for filing an application for acceptance of inheritance. On the other hand, the entry to the consulate still needs to be caught, which is quite difficult.

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The rules of the third part of Article 1272 of the Civil Code of Ukraine on granting an additional period for submitting an application for acceptance of inheritance can be applied if:

1) the heir had obstacles to submit such an application;

2) these circumstances are recognized by the court as valid.

Important reasons for missing the deadline for accepting the inheritance are reasons that are associated with objective, insurmountable, significant difficulties for the heir to perform these actions.

The decision of the Supreme Court dated October 9, 2024 in case No. 619/2906/23 changed the current judicial practice and the court noted that ignorance of the death of the testator and the stay of the heir outside the country are not valid reasons for missing the deadline for accepting the inheritance, as they are not related with objective, insurmountable, significant difficulties for the heir to apply to the notary public with an application for acceptance of the inheritance.

According to the circumstances of this case, after the death of the husband in July 2022, his wife, son and daughter remained as the first-line heirs by law. The wife of the deceased accepted the inheritance within the time limit established by law, submitting the relevant application to the notary. Almost a year later, in June 2023, the daughter learned about her father’s death from a letter from a private notary. In the statement of claim to the court, she substantiated the validity of her missing the deadline for accepting the inheritance by the fact that she did not know about her father’s death, since with the beginning of the war she was forced to move to Great Britain, where she is still living, and the defendants did not inform her of his death father

It should be noted right away that this case originates from the Dergachy district court of the Kharkiv region. Part of the Dergachy community was once under occupation, and the entire community is under constant shelling starting from February 2022 and up to now. Even this was not a decisive factor.

Refusing to grant the claim, the court noted that there is a special mechanism for submitting an application for acceptance of inheritance through consular institutions of Ukraine, established by order of the Ministry of Justice of Ukraine and the Ministry of Foreign Affairs of Ukraine dated December 27, 2004 No. 142/5/310 “On the approval of the Regulation on the procedure for performing notarial acts in diplomatic missions and consular institutions of Ukraine.” At the request of a citizen of Ukraine, the consul (or authorized consular secretary) certifies the authenticity of the signature on the application for acceptance of inheritance, affixes his signature and stamp on the application, after which the heir must send the application to Ukraine by means of international mail.

Thus, there is no need for citizens of Ukraine to leave their country of permanent residence and return to Ukraine to accept inheritance (subclause 3.13 of the Regulation on the procedure for performing notarial acts in diplomatic missions and consular institutions of Ukraine and paragraph 3.23 of the Procedure for performing notarial acts by notaries of Ukraine, approved by order of the Ministry of Ukraine dated February 22, 2012 No. 296/5).

In addition, clause 3.5. The procedure for performing notarial acts by notaries of Ukraine is established, if the application, on which the authenticity of the heir’s signature is not certified, is received by mail, it is accepted by the notary, the inheritance case is opened, and the heir is notified of the initiation of the inheritance case and the need to send a duly executed statement (the authenticity of the signature on such applications must be notarized), or personally come to the notary. In emergency cases, when there is a risk of missing the deadline for accepting the inheritance, the heir has the right to send an electronic message (an analogue of a telegram) to the notary at the place of opening of the inheritance, in which to indicate the acceptance of the inheritance (clause 2.1. Procedure for notarial acts by notaries of Ukraine).

Therefore, the heir’s stay outside the country is no longer a valid reason for missing the deadline for accepting the inheritance.

How should the heir act in case of limited time and difficulties with registration at the consular offices? We recommend acting according to the following algorithm:

  • make an appointment at the nearest possible date at the consulate to properly complete the application for acceptance of inheritance;
  • to find out which notary the inheritance case is with, and if there are no other heirs, to choose a notary at his own discretion;
  • handwritten in the name of the notary to write a statement that you accept the inheritance (an approximate form can be found on the Internet or ask the notary to provide it)
  • to send this statement to the notary as soon as possible within a 6-month period from the date of the testator’s death by return mail or courier delivery;
  • at the consular institution, draw up an application for acceptance of the inheritance in a proper manner and also send it to a notary;
  • if, for some reason, access to consular services is not possible, an application must be made at any local notary using the form provided by the Ukrainian notary, but then it is necessary to go through the translation and apostillation procedure and only then send it to the notary as well.
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Note that each life case is unique, each court case is not similar to another and may have minor differences from other similar cases, which ultimately allows you to win or lose the case. In case of disputed points, the court will decide the issue of resolving the situation.

In this case, the position of the Supreme Court of Ukraine on some aspects of inheritance at the current time is interesting. The issue of the place of discovery of heritage located in uncontrolled territory is relevant in today’s conditions. In accordance with the resolution of the Supreme Court of Ukraine dated November 13, 2023, in case No. 638/7337/21, it was determined that the heir has the right to apply for acceptance of inheritance in any city on the territory of Ukraine (free from occupation), to a public or private notary or in rural settlements – to the authorized official of the relevant local self-government body. In addition, in the case of the death of a person in the occupied territory, there is a need to establish the fact of the person’s death in a court of law in the territory under the control of Ukraine, which is a serious reason for skipping the six-month period established by law for submitting an application for acceptance of inheritance.

We would like to separately emphasize the methods of submitting an application for acceptance of inheritance. The resolution of the Central Committee of the Supreme Court dated February 9, 2022 in case No. 709/769/19 states that the current legislation does not deprive the heir of the right to send an application for acceptance of inheritance by postal means, as well as to submit it through a local self-government body.

Circumstances such as severe stress caused by the loss of a mother at the age of 18, the need to obtain a death certificate of the testator with an apostille and a small period of missing the deadline for submitting an application for acceptance of inheritance (less than two months) are sufficient legal grounds for determining the heir an additional deadline for acceptance of inheritance (resolution of the Supreme Court of Appeals of Ukraine dated August 16, 2023 in case no. 758/13293/18).

When considering the issue of the place of opening of the inheritance, attention should be paid to the resolution of the OP of the Supreme Court of Ukraine dated March 13, 2023 in case No. 398/1796/20, which states that in the case when the testator lived outside of Ukraine at the time of death and the inheritance includes the rights to immovable property located on the territory of Ukraine, acceptance of the inheritance takes place in the form of an application by the heir to the competent authority, authorized to perform notarial acts, at the location of the immovable property in Ukraine.

If the heir has not submitted an application for acceptance of the inheritance to the notary at the location of the immovable property in Ukraine within the period specified by law, he cannot be considered to have accepted the inheritance. Acceptance of inheritance outside Ukraine does not indicate acceptance of inheritance located in Ukraine. Such a fact has no legal significance for the inheritance of the right to immovable property located on the territory of Ukraine.

Therefore, staying abroad in itself is not an automatic reason for renewing the deadline for accepting the inheritance. Legislation and judicial practice clearly indicate that the “significance of the reasons” for missing the deadline must be properly substantiated and supported by evidence. In this case, everything is decided by speed and awareness. These components are the key to successfully solving difficult situations.

We always remind our clients that time limits in inheritance cases are not just a formality, but an important legal tool that helps avoid chaos in inheritance. Therefore, if you are outside the country, but want to receive an inheritance, you must act quickly and responsibly: seek advice from a lawyer, check the available mechanisms for remote actions and do not ignore the deadlines established by law. And most importantly, remember: success in inheritance matters depends not only on the circumstances, but also on the timeliness and competence of your actions. The law is always on the side of those who protect their rights in time.

 

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