Peculiarities of inheritance acceptance under martial law conditions for those living in Ukraine and abroad. Part 1

The issue of inheritance has always been very relevant, but, unfortunately, in wartime, many more families were affected than usual. Over the past two years, there have been a lot of issues, controversial situations and people who have found themselves in difficult situations in this legal field. Lawyers of the “Repeshko and Partners” bar association provide advice on some of them.

Indeed, a trend has emerged in which more and more people are now faced with the question of accepting an inheritance. Let’s consider the normative part of the issue from the beginning, and then move on to the purely practical. For a more correct understanding of the terminology, we would like to note that a “testator” is a person who died and left behind an inheritance, and an “heir” is a person who has the right to receive an inheritance. According to part 1 of article. 1268 of the Civil Code of Ukraine, the heir under the will or by law has the right to accept the inheritance or not to accept it. As follows from the norm of this article, inheritance is not given by force and is not mandatory.

According to parts 1 and 2 of Art. 1269 of the Civil Code of Ukraine, the 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 a statement of the desire to accept the inheritance to the notary public or to an official of the relevant local self-government body authorized for this purpose in rural settlements. It is submitted by the heir personally. Here is the main nuance. “Residence” in such a case means precisely the fact that the person who is the heir at the time of death is registered at the place of residence together with the testator. The option in which the heir lived with the testator, but was not registered with him, is very common in practice. For example, the daughter took care of her seriously ill mother for the last six months and lived with her constantly, due to the nature of the disease, although she was registered at a different address. The daughter thought that she had accepted the inheritance, but in fact she did not. We will consider what exactly to do in this case a little later.

According to part 1 of Art. 1270 of the Civil Code of Ukraine, a period of six months is established for acceptance of inheritance, starting from the time of opening of inheritance. In accordance with the requirements of Art. 1272 of the Civil Code of Ukraine, if the heir has not submitted an application for acceptance of the inheritance within the period established by the law, he is considered to have not accepted it. And it is from this moment that the most interesting thing begins, what has been happening for the last two years in this matter.

After the introduction of martial law throughout the territory of Ukraine, the Cabinet of Ministers of Ukraine, by resolution “Some issues of notary in the conditions of martial law” No. 164 of February 28, 2022, determined some features of the heirs’ exercise of their right to inheritance. Paragraph 3 of the resolution established that during martial law, the expiration of the period for acceptance of inheritance or refusal to accept it is stopped, and the certificate of the right to inherit is issued to the heirs after the expiration of the period for acceptance of inheritance. There is even information about this fact on the website of the Notary Chamber of Ukraine via the link – https://npu.ua/news/notar-vs/ Many citizens, having received this information at the beginning of 2022, calmed down and decided that the procedure for registration of inheritance after the death of a loved one will be able to start only after the end of martial law, but in our things are not so simple in the country. On June 29, 2022, new changes regarding the terms of registration of inheritance during martial law came into force, introduced on the basis of Resolution No. 719 of the Cabinet of Ministers of Ukraine dated June 24, 2022 “On Amendments to Certain Resolutions of the Cabinet of Ministers of Ukraine Regarding Notary and State Registration in Martial Law “. Now the period for accepting inheritance or refusing to accept it is suspended for the duration of martial law, but for no more than 4 (four) months. At the same time, the certificate of the right to inheritance is issued to the heirs after the expiration of the term for accepting the inheritance. In practice, this means that the suspension of the period for acceptance of inheritance or refusal to accept it was canceled, and four months were added to the six-month period specified by the Civil Code of Ukraine, provided that martial law is not abolished by that time. That is, in practical terms, another 4 (four) months were added to the general 6-month period from the death of the testator for accepting the inheritance, and the total became 10 months. However, the Supreme Court noted the illegality of the additional four-month period for accepting the inheritance. Therefore, from June 19, 2023, all matters related to inheritance must again be resolved within six months, as was the case before the war, instead of ten months.

Thus, although the state of war continues to operate in the country, the term for accepting inheritance remains exactly the same as in peacetime – six months!

Why are we explaining in such detail the rules for accepting inheritance for the past two years? Precisely because this information depends on the fact whether a person accepted the inheritance within the time limit set by the law (6 or 10 months) or not, because in less than a year and a half, the rules of inheritance changed three times. If it so happened that, due to ignorance or incorrectly received information, you still missed the deadline for accepting the inheritance, then it will be necessary to substantiate valid reasons for missing the deadline and confirm it with documents. The main thing to remember at the moment is that if the heir was not registered together with the testator at the time of the latter’s death, he needs to apply to the notary within six months with an application for acceptance of the inheritance at the place of opening of the inheritance. At the same time, the text of the statement itself is drawn up directly by the notary.

Previously, the last place of residence of the testator was considered the place of inheritance opening. If the place of residence of the testator was unknown, the location of the immovable property or its main part was considered the location of the inheritance, and in the absence of immovable property – the location of the main part of the movable property. It was according to this principle that citizens went to the relevant notary. The father lived and died in Kyiv – we go to a private notary of the Kyiv city notary district, the mother died while living in the Poltava district of the Poltava region – we go to the Poltava district notary office. However, on May 22, 2023, the Law of Ukraine “On compensation for damage and destruction of certain categories of immovable property as a result of hostilities, acts of terrorism, sabotage caused by the armed aggression of the Russian Federation against Ukraine, and the State Register of Property Damaged and Destroyed as a result of hostilities” entered into force. actions, terrorist acts, sabotage caused by the armed aggression of the Russian Federation against Ukraine”, which made significant changes. Now the place of opening of the inheritance is the place of submission of the first application, which indicates 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. On the basis of the first application received, the notary initiates an inheritance case, which is subject to state registration in the Inheritance Register in accordance with the procedure established by the Cabinet of Ministers of Ukraine.

So, now, if the father lived and died in Kyiv, nothing prevents the daughter, who lives in Lviv, from applying to the private notary of the Lviv City Notarial District with an appropriate application for acceptance of inheritance.

With the acceptance of inheritance on the territory of Ukraine, everything is more or less clear, but what should be done by those who are outside the borders of Ukraine due to military actions?

The easiest way, which appeared precisely on May 22, 2023 in connection with changes in the legislation, is to go to any western part of our country for a day or two, choose the city with the most notaries and contact the first notary who will like it by submitting an application for acceptance of inheritance to him. But you need to remember that you must have a death certificate of the testator with you. Why do we recommend cities with the largest number of notaries? After all, notaries are people too, they get sick, go on vacation, have their workload, attend advanced training courses. Therefore, if there are several notaries and one is on vacation, and the second is sick, then the third will certainly be able to help you.

If for some reason this is not possible, there is a slightly more complicated mechanism, but still effective, which will help to avoid missing the deadline for accepting the inheritance. There are two ways to apply for inheritance while abroad. The first – at a foreign diplomatic institution – a consulate or diplomatic institution, the second – at a local notary.

Regarding the application for acceptance of inheritance by the consulate. The main thing is that it will be valid on the territory of Ukraine without any additional procedures, as if you had issued it at a notary in Ukraine. Certification of an application for acceptance of inheritance by a consulate (or diplomatic mission) abroad of Ukraine takes place in accordance with the procedure and rules of the current legislation of Ukraine.

Regarding the application for acceptance of inheritance issued by a local foreign notary, such applications are certified by notaries of a foreign country according to the legislation of the foreign country itself. According to Article 13 of the Law of Ukraine “On Private International Law”, documents issued by authorized bodies of foreign states in the established form are recognized as valid in Ukraine in the event of their legalization, unless otherwise provided by law or an international treaty of Ukraine.

At this time, two ways of legalization of documents are possible on the territory of Ukraine: consular legalization and apostille.
Apostille is a special stamp affixed to official documents from member states of the Convention Abolishing the Legalization of Foreign Official Documents (The Hague, 1961). The list of countries that recognize “Apostille” currently includes 125 countries of the world, such as Canada, Norway, Romania, the Czech Republic, Slovakia, France, Croatia, Montenegro and many other European countries. According to the provisions of the Convention, a document bearing an apostille does not require any additional registration or certification and can be used in any other state party to the Convention. The application for acceptance of inheritance abroad prepared in this way can be sent to Ukraine by the notary’s postal service.

Another, the most reliable option, in order to be able to process the inheritance properly without entering the territory of Ukraine, is to issue a power of attorney to process the inheritance for one of your relatives or friends immediately along with the application for acceptance of the inheritance. Such a power of attorney will help bring the inheritance process to a logical conclusion and have legal documents for the inherited property in your name, as well as free disposal of it, which is extremely important in these difficult times.
The fact is that the Civil Code establishes the duty of the heir who has accepted an inheritance, which includes immovable property, to apply to a notary for the issuance of a certificate of the right to inherit immovable property. Previously, in practice, this meant that, in principle, it was enough to submit an application for acceptance of inheritance to the notary, but the documents themselves should be drawn up at some point, when there is time and inspiration. Sometimes, time and inspiration did not come to citizens not only for years, but also for decades.

Everything changed unexpectedly and as usual – from nowhere. The decision of the Supreme Court made a legal conclusion, the essence of which is briefly reduced to the fact that in the event that the heir did not receive a certificate of the right to inheritance for a long time (the final document in the inheritance procedure) and at this time it so happened that his rights were violated and he no longer the heir cannot take possession of the inherited property, then he may not even go to court – he himself is to blame, it was necessary to draw up the documents in advance.

Read more in our next article.