Legal advice

Peculiarities of accepting inheritance under martial law for those living in Ukraine and abroad Part 2

Returning to the issue of acceptance of inheritance, which we considered in previous publication, we would like to remind you once again – although the state of war continues to operate in the country, the deadline for accepting an inheritance remains exactly the same as in peacetime – six months! No exceptions.

A fairly natural question arises in connection with the circumstances that have turned the lives of many citizens upside down – what to do with those who, for any reason, did not turn to a notary within the six-month period with an application for acceptance of inheritance?  In this case, unfortunately, there is only one way – to go to court with a claim: to establish an additional term for accepting the inheritance. But before going to court, you still need to contact a notary.

For what? No court will consider this category of case without one important document – the notary’s decision on refusal to perform a notarial act. In this case, the notary will take an application from you, copies of the necessary documents (passport, identification code, death certificate of the testator, documents confirming family relationships, will), will open an inheritance case, enter all data in the registers, but after carefully checking independently that you do not has grounds to issue a certificate of the right to inherit the inherited property – will be refused by a corresponding resolution. This is done in order to bring cases to the court that really cannot be resolved in any other way. The notary’s decision has a certain form and it clearly states why the notary refuses you to perform a legal action. This service is not free, at public notaries it is a little cheaper, at private ones it is more expensive, but the figures that can be safely named are somewhere between UAH 2,500 and 4,500. For example, a family lived in Kharkiv – a grandmother, her daughter and granddaughter. All were registered at the same address. With the start of hostilities and the shelling of the city, the daughter took her child, her grandson, and left as an internally displaced person to live in the city of Uzhgorod. The grandmother refused to leave and soon died of a heart attack. Believing that due to the hostilities, all deadlines were suspended, the daughter missed 6 months and did not submit a statement to the notary after her mother’s death.  In the future, the daughter thought that since she did not live with her at the time of her mother’s death, she missed the deadline for accepting the inheritance, and therefore decided to immediately go to court. It was in this case that the court was not necessary – the mother and daughter were registered together, and therefore are considered to be living together. The court fee for submitting to the court a statement of claim on the establishment of an additional term for accepting the inheritance for 2024 is UAH 1,211.20. But in such a case, the most important thing is what you will use to justify before the court the respectability of missing the deadline for accepting the inheritance.

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” will come in handy here. It is in this document that the territories on which active actions are being conducted, on which active hostilities were conducted and at what time and territories that are on the list of possible hostilities are defined.

It is no secret to anyone that life in Mariupol, Kharkiv and Vinnytsia is radically different, and therefore the missed deadline for accepting an inheritance in Vinnytsia will be different even from Kharkiv.

What else will the court consider a valid reason for missing the deadline? There is the following list, which has been determined by court practice over the years:

  • long-term illness of the heir;
  • serving a sentence in places of deprivation of liberty;
  • stay of the heir in the military service of the Armed Forces of Ukraine
  • difficult working conditions, which, in particular, are associated with long business trips, including foreign ones;
  • a long distance between the place of permanent residence of the heirs and the location of the inherited property;
  • ignorance of the heir about the existence of a will
  • stay of the heir for a long time outside of Ukraine, but not the fact itself, but rather the proof that it is impossible to appear at the consular office or at the diplomatic mission of Ukraine for the purpose of filing an application
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This list of circumstances is not exhaustive. Life is quite complex and unpredictable, and therefore sometimes completely non-standard situations arise, the main thing to remember when going to court is to collect as many documents as possible that would confirm the existence of circumstances that justify the validity of missing the deadline for accepting the inheritance. Such documents can be the following: a certificate from the Border Service Administration on crossing the border of Ukraine for exit/entry, a certificate on registration of an internally displaced person; medical certificates confirming diagnoses, confirmation of hospitalization for treatment of you personally or, in serious cases requiring external care – of your relatives, copies of train/bus tickets, certificate from the Armed Forces of Ukraine on completion of service, company order on sending on a business trip, certificate from a penitentiary institution about serving a sentence, postal documents about sending an application to the address of a notary, etc.

In addition to the list of valid reasons for missing the deadline for accepting inheritance, there is also a mirror list of reasons that will not be considered valid for missing the deadline under any circumstances, namely:

  • old age (by itself, but if serious diseases are added to it, then this is a completely different story);
  • adverse weather conditions;
  • lack of funds to travel to the place of opening of the inheritance (especially according to the current regulations, the application can be submitted not at the testator’s place of residence);
  • uncertainty among the heirs who will receive the inheritance;
  • incapacity;
  • the claimant’s legal ignorance regarding the term and procedure for accepting the inheritance (but as the above is taking place in the territory of the outbreak of hostilities, now this reason can be considered from a slightly different angle);
  • the person’s ignorance of the existence of inherited property;
  • establishment by the court of a fact that has legal significance for the acceptance of inheritance (for example, establishment of the fact of residence by one family);
  • being depressed due to the death of the testator.

According to clause 24 resolutions of the Plenum of the Supreme Court of Ukraine No. 7 dated May 30, 2008 “On judicial practice in inheritance cases” deciding the issue of determining an additional term for a person to submit an application for acceptance of inheritance, the court examines the validity of the reasons for missing the term for acceptance of inheritance. At the same time, it is necessary to proceed from the fact that the reasons associated with objective, insurmountable, significant difficulties for the heir to perform these actions are valid. When evaluating the applicant’s arguments about the validity of the reasons for missing the deadline for filing an application for acceptance of inheritance, the court must take into account the duration of the deadline for submitting an application for acceptance of inheritance.

In accordance with the decision of the Supreme Court/CCC No. 681/203/17-ts dated 17.10.2018, a small time interval between the end of the term of acceptance of inheritance and the filing of a claim for the determination of an additional term for submitting an application for acceptance of inheritance is the basis for meeting such requirements. For example, if we are talking about a month or three of missing the deadline on the territory of the Donetsk region, then this is definitely a win-win case. Courts try to behave loyally, taking into account the situation in those territories where hostilities took place or near which hostilities are taking place.

Lawyers are very surprised by people who come and ask to set an additional deadline for accepting inheritance after … fifteen, ten years after the death of the testator. At the same time, such lawyers are always asked what the first thing a judge asks at a court session – what has prevented you for fifteen whole years?  If you don’t find a solid, reasoned answer for yourself, then a lawyer won’t find it for you, even more so.

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It will also be important when solving this issue in inheritance, with whom exactly you will be suing. It must be remembered that no one wants to give away what is supposedly “theirs” or to share it. This is human nature, and sometimes just the position of government bodies and instructions from above.

Thus, in the case of the extension of the deadline for accepting the inheritance, those heirs who properly accepted the inheritance, who also did not accept the inheritance, or/and the local territorial community (city, village council, etc.) will participate in the case on the opposite side. As a general rule, the appeal must be submitted to the court on whose territory the inherited property or its part is located. At least this applies to immovable property (houses, land, commercial premises, etc.). In the event that it is not possible to definitively determine the presence of inherited property, or it consists only of movable property (car, jewelry, antiques, etc.), the appeal must be directed to the court in whose territory the testator was registered and lived.

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, if no application for refusal to accept inheritance (Part 4 of Art. 1268 of the Civil Code of the U.Scountries). This must be remembered, because the mentioned persons are considered to have accepted the inheritance even if no application has been submitted on their behalf for the acceptance of the inheritance, and therefore it is not necessary to renew the deadline for acceptance in relation to them.

There is another loophole in our sensitive issue. In our practice, there are quite a few cases where a person actually lived with the testator, or he was with her at the time of death without the appropriate registration. This can be due to a number of reasons, most often it is an illness of the testator. Therefore, it will be more appropriate to ask the question of establishing the fact of living with the testator at the time of the opening of the inheritance, and therefore the acceptance of the inheritance. The evidence in this case will be the following documents: documents from the deputy of the local council with the participation of witnesses-neighbors about cohabitation, a declaration from the local family doctor for medical care, certificates of stay for examinations and treatment in local hospitals, testimony of witnesses, evidence of appeals to local public authorities institutions and official bodies for certificates and services, registration of documents at a local notary (for example, a will) and others.

And one more very important point. What are all these actions for? Of course, to receive an inheritance, that is, property or funds! But, according to the current legislation, the heir inherits not only the rights, but also the obligations of the testator! According to Art. 1281 of the Civil Code of Ukraine “The heirs are obliged to notify the creditor of the testator about the opening of the inheritance, if they know about his debts, and/or if they inherit property encumbered by the rights of third parties.” And according to Art. 1282 of the Civil Code of Ukraine “1. The heirs are obliged to satisfy the creditor’s demands in full, but within the limits of the value of the inherited property. Each of the heirs is obliged to satisfy the demands of the creditor personally, in the amount that corresponds to his share in the inheritance.”

That is why, before starting legal proceedings for inheritance, remember whether the testator has loans, debts, mortgages. This is necessary to determine whether it makes sense to go to court, spend time and money, then go to a notary and also spend time and money, and at the end of the journey it turns out that there is actually no sense, how about a loan of three million hryvnias for the testator , and the cost of the apartment that will be inherited is only one and a half million hryvnias at current prices. Of course, you will not be required to pay another one and a half million, but there is a good chance that the apartment may be taken away for debts.

 

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