Inheritance is a process that is always accompanied by emotional and legal difficulties. It often happens that the heirs do not have time to submit an application for acceptance of the inheritance. In conditions of war or other extraordinary circumstances, this process becomes even more difficult. What to do if the deadline for accepting the inheritance coincides, and you did not have time to submit the documents? How does the legislation protect the rights of heirs and provide an opportunity to extend this term? Experts from the “Repeshko and Partners” Bar Association comment on the legal aspects of this issue and provide practical advice on how to act in similar situations.
General rules of inheritance
We are approached quite often with questions regarding the acceptance of inheritance, and in the conditions of martial law, it now has many nuances that must be taken into account. According to the article 1269 of the Civil Code of Ukraine an heir who wishes to accept the 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 the 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.
According to Part 1 of Art. 1270 of the Civil Code of Ukraine, a period of six months is established for the acceptance of the inheritance, starting from the time of the opening of the inheritance.
The main thing to remember:
- If the heir was registered at the same address as the testator at the time of the latter’s death, the application for acceptance of inheritance may not be submitted to a notary public. But, firstly, it is registered, and not actually living with registration in another place, and secondly, lawyers still recommend submitting such a statement to the notary, so that the latter can clearly see the circle of persons who claim to inherit property.
- The term for accepting the inheritance is set at six months. And full stop. There is currently no other term, even under martial law.
In 2022-2023, they tried to settle the issue of extending the term for inheritance with some by-laws, first stopping the term until the end of martial law, then providing four additional months to the standard six, but then all this was recognized as illegal by the Supreme Court of Ukraine, since the by-laws actually introduced changes in the current law, which are unacceptable from a legal point of view, and therefore the deadline for accepting inheritance is the same as in peacetime.
However, the inheritance legislation did undergo some changes. On January 30, 2024, two laws came into force, which changed the rules for opening and registration of inheritance. The main changes took place in Art. 1221 of the Civil Code of Ukraine. Currently, the new wording is as follows: “The place of opening of inheritance is the last place of residence of the testator. If the place of residence of the testator is unknown, the place of opening 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”.
Special rules of inheritance
We considered the general rules of inheritance, but due to the fact that part of the territory of Ukraine is occupied, there are special rules that apply to these territories. Current regulations establish:
“During the period of martial law in Ukraine, introduced by the Decree of the President of Ukraine “On the introduction of martial law in Ukraine” dated February 24, 2022 № 64/2022, and within two years from the date of its termination or cancellation, if the death of a natural person is registered later than one month from the date of death of such a person or the date from which he was declared dead, the terms established by articles 1269, 1270, 1271, 1272, 1273, 1276, 1277, 1283, 1298 of this Code, are calculated from the date of the state registration of the person’s death. At the same time, the day of the testator’s death or the day from which the testator was declared dead is considered the time of opening of the inheritance, regardless of the time of state registration of death.
The provisions of the first paragraph of this clause also apply to the inheritance that was opened after the introduction of martial law in Ukraine, introduced by the Decree of the President of Ukraine “On the introduction of martial law in Ukraine” dated February 24, 2022 № 64/2022, before the entry into force of the Law of Ukraine “On Amendments to the Civil Code of Ukraine on Improving the Procedure for Opening and Registration of Inheritance”, as well as to inheritance that was opened before the introduction of martial law, the deadline for acceptance of which did not expire before its introduction, provided that the certificate about the right to inheritance was not issued to any of the heirs.”
Therefore, in the case when the death of a natural person is registered later than one month after the death of such a person, the terms determined by the Central Committee of Ukraine regarding inheritance are calculated from the day of state registration of the death of the testator.
For example, a person died on October 1, 2023, and the death was registered on December 30, 2023. In this case, the period of 6 months, in particular, for accepting or refusing to accept the inheritance, is calculated starting from 12.30.2023. The specified norm is very relevant for those territories where, unfortunately, there are a lot of dead civilians, and the territories themselves are occupied or were occupied and later liberated. Usually, the registration of a death in such territories goes through the judicial procedure of establishing the fact of death with the subsequent receipt of a death certificate from the civil status registration authorities, which is connected either with the absence of a Ukrainian-style death certificate or with the presence of a death certificate issued by the occupation authorities, which is not is recognized on the territory of Ukraine.
The following changes indicate:
“During the period of martial law in Ukraine, introduced by the Decree of the President of Ukraine “On the introduction of martial law in Ukraine” dated February 24, 2022 № 64/2022, and within six months from the date of its termination or cancellation in the event that the place of opening of the inheritance is a settlement in the territory of which the state authorities temporarily do not exercise or do not exercise their powers to the full extent, the territory where active hostilities are taking place, or the territory temporarily occupied by the Russian Federation, in respect of which the date of the end of hostilities or temporary occupation has not been determined, the date of the restoration of the exercise of their powers by state authorities in full, application for acceptance of inheritance, application for refusal to accept inheritance, application for refusal of testamentary refusal, demand the creditor of the testator to the heirs, the application for the protection of the inherited property, the application for consent to be the executor of the will after the opening of the inheritance, other applications regarding the inheritance, joint property of the spouses (former spouses) within the scope of the inheritance case are submitted to the notary regardless of the place of opening of the inheritance.
In the event that the place of opening of the inheritance is the settlement or territories specified in the first paragraph of this clause, in respect of which the date of the end of hostilities or temporary occupation has not been determined, the date of the resumption of the authorities’ exercise of their powers in full, as well as in the case of the initiation of an inheritance case not at the place of opening of the inheritance before the entry into force of the Law of Ukraine “On Amendments to the Civil Code of Ukraine on Improving the Procedure for Opening and Registration of the Inheritance”, performance of notarial and other actions by the notary regarding the inheritance and common property of the spouses (former spouses) within the scope of the inheritance case is carried out at the place submission of the first application. If the place of submission of the first application is the locality or territories specified in the first paragraph of this clause, the performance of notarial and other actions by the notary regarding the inheritance and joint property of the spouses (former spouses) within the scope of the inheritance case is carried out at the place of submission of the first application for the issuance of the certificate in the locality or in the territory not specified in the first paragraph of this clause.
The provisions of the first paragraph of this clause in the part of the place of submission of the application, which testifies to the declaration of will regarding the inherited property, heirs, executors of the will, persons interested in the protection of such property, or the demands of creditors, are also applied to the inheritance, the place of opening of which is a settlement located on a temporary occupied territory of Ukraine, during the entire period of temporary occupation of such territory and six months after the end of temporary occupation”.
Therefore, applications for acceptance of inheritance in the territory that is occupied or on which active hostilities are being conducted, are submitted to the notary regardless of the place of opening of the inheritance. At the same time, notarial actions regarding registration of inheritance will be carried out at the place of submission of the first application for acceptance of inheritance (in the event that there are several heirs and each of them submitted an application for acceptance of inheritance in different parts of the country).
If the heir missed the six-month deadline for accepting the inheritance, it is still necessary to apply to the notary in accordance with the established rules and obtain from him a decision on refusal to perform a notarial act. It is the presence of such a resolution that opens the way to further actions, namely, filing a claim with the court to establish an additional term for the person to accept the inheritance.
Accordance with the requirements Art. 1272 Central Committee of Ukraine the court, recognizing the reason for missing the deadline as valid, can determine an additional deadline for the heir to accept the inheritance. The decision of the Supreme Court dated May 22, 2019 in case No. 351/2403/17 (proceedings No. 61-21751св18) states:
“Deciding on the issue of determining an additional term for a person, the court must examine the validity of the reason for missing the term for accepting the inheritance. At the same time, the reasons related to objective, insurmountable, significant difficulties for the heir to perform these actions are valid.
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. The residence of the heir for a long time outside of Ukraine is also a valid reason. Now this is the most interesting point, because in itself being outside Ukraine does not deprive a person of the right to apply to a consular office to complete an application for acceptance of inheritance. On the other hand, the entry to the consulate still needs to be caught, which is quite difficult. That is, this point remains entirely at the discretion of the court and will be decided based on the specific circumstances of the case and the evidence provided to the court.
It should be noted that for the courts, the most important evidence is written: letters, certificates, acts and other documents related to the circumstances of the case. The more of them, the better. At the same time, documents issued by the authorities of other countries in a foreign language must be translated and apostilled (if necessary) for the court.
A significant factor is also the length of the grace period for submitting an application for acceptance of inheritance. At the same time, the court pays attention to two terms:
- The period from the date of the testator’s death to the receipt of a decision on refusal to perform a notarial act.
- The period from the date of the resolution on refusal to perform a notarial act to the date of the appeal to the court with the corresponding application for extension of the period.
The shorter the specified time intervals, the greater the probability that the court will approve the claim. In the practice of lawyers, there have been cases when a person came five years after the date of the testator’s death, or four years after the date of the testator’s death, received a decision from the notary on the refusal to perform notarial acts, and then a year later only applied to the court. Of course, with a high probability, the mentioned lawsuits will not be satisfied.
From the point of view of judicial practice, the following are not valid reasons for missing the deadline for accepting the inheritance: legal ignorance of the plaintiff regarding the deadline 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.
An innovation that needs to be actively used in this matter is the Order of the Ministry of Reintegration of the Temporarily Occupied Territories of Ukraine No. 309 of December 22, 2022 “On Approval of the List of Territories in which Hostilities Are Conducted or Temporarily Occupied by the Russian Federation.” It is this order that defines the territories that were occupied and for what time, the territories of active hostilities, or the territories of possible hostilities, which definitely affects the validity of these or other legal actions.
Another piece of evidence that should be actively used in these cases is information from the Internet about the presence of rocket attacks on one or another populated place, taking into account the date of death of the testator. Information about missile strikes carried out by the enemy is a well-known fact, which, according to part 3 Art. 82 of the Code of Civil Procedure of Ukraine does not need proof.
The court fee for filing a claim for granting an additional term for accepting inheritance as of 2024 is UAH 1,211.20.
In the event that you missed the deadline for accepting the inheritance and are in doubt whether to go to court, because this is just the case when it is better to do and regret than not to do and regret.
