Inheritance is an important process, especially when it comes to children’s rights. In situations where a child is an heir, the issue of registration of inheritance requires special attention, since legal nuances created to protect the interests of minors come into force here. Children often have the right to a share of the inherited property, but this procedure is not always simple: it can include the division of property, special rules for managing it until adulthood, and even situations where the child’s rights are violated by other heirs or due to the ignorance of the parents.
Lawyers of the “Repeshko and Partners” Bar Association commented on the main rules and features of inheritance of property by children, which legal aspects are important to consider, and what steps should be taken to maximally protect children’s rights to inheritance. Their advice will help you understand key issues and understand how to make the inheritance process as transparent and safe as possible for minors.
Incorrectly executed inheritance rights can result in long-term difficulties for the child, including legal proceedings or loss of rights to the property belonging to them. In order to ensure the legal protection of children in inheritance matters, it is important to know all the key aspects of inheritance, the rights and responsibilities of guardians, as well as mechanisms to help avoid legal pitfalls.
One of the main points from which to start considering this issue is the types of inheritance. After all, it depends on who exactly and what will inherit. Inheritance can be of two types:
- according to the law
- by will
As a general rule, inheritance follows the law, but as a person has made a will – then it is he who regulates the issue of receiving an inheritance. Moreover, a will can be drawn up both for the whole property and for a part of it. In the latter case, everything that is not covered by the will will be inherited according to the law.
It must be remembered that regardless of who the property is registered to in marriage, it is still the joint property of the spouses. Exceptions are situations where such property is purchased at personal expense. So, if the wife, who has registered three apartments purchased during the marriage, believes that after the death of her husband, the daughter from the previous marriage will not receive anything, she is wrong. You may have to go to court to prove your rights, but the daughter will receive the “one and a half apartment” quite legally.
Inheritance by law
When inheriting according to law, the main thing is the order of inheritance. There are several of them, but first of all, the testator’s children have the right to inherit by law, including those conceived during the testator’s life and born after his death, the surviving spouse, and parents.
Children-heirs are:
- children born in a registered marriage. There are no special issues here, such children inherit both as the first priority by law and in the case of a will, by the right to a compulsory share (general grounds of inheritance).
- children born out of wedlock, but the main condition for such children is that the deceased must be listed as the father of the child in the birth certificate or there is a court decision to establish paternity. Then they have the right to everything, as well as the children from the point above;
- adopted children This refers to the presence of a court decision on adoption and making appropriate changes to the birth certificate. In this case, they also inherit according to the law and have a mandatory share in the inheritance at will.
- a child born in the future. Not only children who were alive at the time of the testator’s death, but also children who were conceived during the testator’s lifetime and born after his death have the right to inherit. When deciding who should be considered such a child, the rule is applied, according to which a child of the deceased is considered a person who was born within a period of no more than 10 months after his death.
If the child was born after the death of the man with whom the woman was married, then it will be automatically registered to the husband. If a woman gave birth out of wedlock, she must prove through the court that the deceased is the father of the child. But such children also inherit on general grounds.
- adult children unable to work, if there is a will, in any case have the right to a mandatory share in case of disability;
If we consider the situation in specific cases:
- a man and a woman divorced 10 years ago, there is a minor child – the child inherits on general grounds;
- a woman who was married gave birth 8 months after the death of her husband – the child is an heir on general grounds;
- the man was married to one woman all his life, but after his death a man appeared who claims that the deceased is his father, because he is recorded as such in the birth certificate according to his personal statement – since he does not have a will, then such a person will be to inherit equally with all other heirs of the first rank;
- husband and wife adopted a child, the woman died – the child inherits on general grounds as a relative;
- the husband divorced his first wife, who stayed with their joint disabled son. The man got married, more children were born in the new marriage, according to his will he left everything to his second wife and children from the second marriage. A disabled child from the first marriage has the right to a mandatory share in the inheritance, even if she is of legal age.
So, the situation when, after the death of the husband, the property of the wife from the second marriage will be divided by the children from the first marriage, is quite real and legal. At most, children from a mistress also have a right to the property of the deceased if he is recorded or recognized as their father.
It should be noted that the shares in the inheritance of each of the heirs are equal by law, and therefore in the case of two children from the first marriage, two children from the second marriage, a woman and living parents of the deceased, the inheritance will be divided into seven equal shares. The only thing to remember is that the property acquired by the spouses during the marriage is their joint joint property. That is, if in our case, in the second marriage, the husband and wife bought, for example, a house, then ½ of the house will belong to the wife, and ½ to the husband. Exactly ½ part of the house will be inherited property, and each of the heirs will receive 1/14 part.
Inheritance by will
It is clear that, according to the general rule, the one to whom the will is made inherits the property, but there are certain nuances. The testator has the right to include in the will the rights and obligations that belong to him at the time of making the will, as well as those rights and obligations that may belong to him in the future.
Minors, minors, adult incapacitated children of the testator, incapacitated widow (widower) and incapacitated parents inherit, regardless of the content of the will, half of the share that would belong to each of them in case of inheritance by law (mandatory share).
The size of the mandatory share in the inheritance may be reduced by the court, taking into account the relationship between these heirs and the testator, as well as other circumstances that are of significant importance.
The mandatory share in the inheritance includes the value of things of ordinary household furnishings and use, the value of a testamentary refusal established in favor of a person entitled to a mandatory share, as well as the value of other things and property rights that passed to her as an heir .
Any restrictions and encumbrances established in the will for an heir who is entitled to a mandatory share in the inheritance are valid only for that part of the inheritance that exceeds his mandatory share.
Thus, if one of the parents wants to disinherit the child, it is not possible if:
- the child is a minor and has not reached the age of 18;
- the child is unable to work due to a disability (I, II, III groups);
- the child is unable to work due to age and retirement (it is necessary to see the pension legislation regarding the specific situation within the definition of “inability to work”).
Thus, if the husband wrote a will for his wife, and there are still three children from the first marriage and they are minors, then each of these children receives ½ part of a ¼ part, which is equal to 1/8 part as in the absence of a will by the heirs by law, there would be a wife and three children.
Can a child refuse an inheritance?
If the child is of legal age, the question of accepting the inheritance is entirely his decision – he can accept it, or refuse it. The heir under the will or by law can refuse to accept the inheritance within a period of six months from the day of the opening of the inheritance. An application for refusal to accept inheritance is submitted to a notary or, in rural settlements, to an official of the relevant local self-government body at the place of opening of the inheritance.
A natural person whose civil capacity is limited may refuse to accept an inheritance with the consent of the guardian and the body of guardianship and guardianship.
At the same time, a minor between the ages of fourteen and eighteen may refuse to accept an inheritance with the consent of the parents (adoptive parents), the guardian and the body of guardianship and guardianship.
Parents (adoptive parents), guardians can refuse to accept the inheritance belonging to a minor, incapacitated person, only with the permission of the body of guardianship and guardianship.
However, we would like to emphasize that the guardianship authority will not give permission to refuse the inheritance in 99%. 1% is an assumption about some complicated exotic situation.
Acceptance of inheritance by a child
Article 1270 of the Civil Code of Ukraine states that a period of six months is established for the acceptance of inheritance, which starts from the time of opening the inheritance. The heir, who permanently lived with the testator at the time of the opening of the inheritance, is considered to have accepted the inheritance, if within the period established Article 1270 of this Code, he did not declare his refusal.
A minor, a minor, an incapacitated person, as well as a person whose civil legal capacity is limited, are considered to have accepted the inheritance, except for the cases established parts two – four Article 1273 of this Code. At the same time, regardless of the time of accepting the inheritance, it belongs to the heir from the time of the opening of the inheritance.
An heir who wishes to accept an inheritance, but at the time of the opening of the inheritance did not live permanently with the testator, must submit an application for acceptance of inheritance to a notary public or, in rural settlements, to an official of the relevant local self-government body.
The application for acceptance of inheritance is submitted by the heir in person.
A person who has reached the age of fourteen has the right to apply for acceptance of inheritance without the consent of his parents or guardian.
An application for acceptance of inheritance on behalf of a minor, incapacitated person is submitted by his parents (adoptive parents), guardian. The permission of the guardianship authority is not required for this. A person who submitted an application for acceptance of inheritance may withdraw it within the period established for acceptance of inheritance.
The place of inheritance opening is the last place of residence of the testator. If it is unknown, the location of the inheritance is the location of the immovable property or its main part, and in the absence of immovable property – the location of the main part of the movable property. If the testator had the last place of residence on the territory of a foreign state, the place of opening of inheritance is determined in accordance with Law of Ukraine “On international private law”.
The document that the child should receive at the end of the day should be a Certificate of Inheritance by Law or a Certificate of Inheritance by Will. Sometimes, due to some circumstances, the notary is unable to process the inheritance and issues a decision on refusal to perform a notarial act. Do not be afraid, this is not a sentence and does not mean that the heritage has disappeared like a mirage in the desert. In this case, it will be necessary to go to court and to close the gaps that prevented the notary from issuing inheritance rights in court.
We touched only on general issues of inheritance, because it is impossible to talk about all possible options and cases in one comment. In general, each situation is unique, although sometimes it seems that it is quite similar to another. Our general advice is not to be afraid to seek advice from specialists.
