Protection of inherited property: how a family does not lose an apartment, money or valuables after the death of a loved one

The issue of protecting inherited property has gained particular importance due to war, mass relocations, disappearances of people without contact, and situations in which apartments, houses, money, documents, or valuables of the deceased remain without proper control. Before accepting the inheritance, property may be damaged, disappear, be taken out, or end up with third parties, so the law provides for a separate notarial procedure that allows us to record the composition of the inheritance and ensure its preservation.

Lawyers from the Repeshko and Partners law firm, contacted by our editorial staff, commented on how the protection of inherited property works, who can initiate such a procedure, and what actions a notary must perform.

Given the circumstances in which the country lives during the war, a notarial act that was previously not widely known to most citizens is gaining increasing practical importance – the protection of inherited property. Its relevance is due to the fact that a significant number of people in Ukraine are recognized as missing or have an unknown whereabouts due to disappearance as a result of hostilities, departure abroad, movement within the country or other life circumstances. In such situations, the property of a deceased person may remain without proper supervision until the heirs accept the inheritance, therefore the law provides for a special procedure for its preservation.

It is worth noting that the protection of inherited property is a notarial act aimed at preserving the assets of the deceased until the heirs accept the inheritance. The Civil Code of Ukraine determines that such protection is carried out in the interests of the heirs, legatees and creditors of the testator, so that the property is preserved until the inheritance is accepted or until the court decision on recognizing the inheritance as deceased enters into legal force.

The protection of inherited property continues until the heirs accept the inheritance, and if the inheritance is not accepted, until the expiration of the period established by the civil legislation of Ukraine for its acceptance. This approach allows you to avoid situations in which the property remains uncontrolled, is damaged, disappears or is used by third parties before the completion of the inheritance procedure.

It is necessary to know that the protection of inherited property may continue after the expiration of six months from the date of opening the inheritance. This is possible if the notary receives an application for consent to accept the inheritance from persons whose right to inherit arises due to the refusal of the inheritance by other heirs, in accordance with Part Three of Article 1270 of the Civil Code of Ukraine. An additional condition is that less than three months must remain before the expiration of the six-month period established by law for accepting the inheritance.

In this case, the protection of inherited property continues until the acceptance of the inheritance by all persons. If they have not accepted it, the protection continues until the expiration of three months from the date of receipt of an application for consent to accept the inheritance from any of these persons, provided that the part of the six-month period remaining for accepting the inheritance is less than three months.

Measures to protect inherited property are taken by a notary at the place of opening the inheritance. He may act upon the application of interested persons or on his own initiative, if there are grounds for this. In cases where the inherited property is located in another place, measures may be taken by a notary at the location of such property. For this purpose, the notary conducting the inheritance case sends him an appropriate order.

The procedure begins with an application to take measures to protect inherited property. Such an application is registered in the Register, after which the notary proceeds to the actions necessary to establish the composition of the property, its location and the persons whose interests may be related to the inheritance.

Before taking measures to protect inherited property, the notary performs a number of actions that should ensure full and proper protection of this property. The notary determines the place of opening the inheritance, establishes the presence of inherited property, its composition and location. This is necessary in order to understand what property is subject to protection and where it is actually located.

After that, the notary checks according to the data of the Inheritance Register whether a succession case has been opened. If such a case has not yet been opened, the notary registers an application for taking measures to protect the inherited property also in the Book of Accounting and Registration of Inheritance Cases, opens a succession case and registers it in the Inheritance Register.

Separately, the notary finds out whether any measures have previously been taken to preserve the inherited property. If such actions have already been taken, he establishes by whom, when and in what way this was done, in particular whether the premises were sealed, where the keys are and who had access to the property. After establishing these circumstances, the notary notifies the heirs whose place of residence or work is known to him. If necessary, he may summon the heirs through a public announcement or a press release.

The notary notifies the housing and utility authorities, and if necessary, the internal affairs authorities and other interested parties, in particular the creditor, about the inventory of the testator’s property. If there is reason to believe that the inheritance may be recognized from a deceased person, the notary must notify the relevant local government body.

It is important that in order to conduct an inventory of the property, the notary also takes measures to attract witnesses. There must be at least two of them, and witnesses can be any disinterested persons who have full civil capacity.

We would like to emphasize that measures to protect the inherited property are taken by the notary only after receiving documents confirming the fact of the death of the testator, the time and place of opening the inheritance, but no later than the next day from the date of receipt of such documents. The inventory of the inherited property is carried out with the participation of interested persons (if desired) and at least two witnesses. Moreover, the presence of the executor of the will when carrying out the inventory of the inherited property is mandatory. The inventory act must indicate:

• date and time of drawing up the inventory act, as well as the surname, first name, patronymic of the notary conducting the inventory;
• name of the state notary office or notary district in which the private notary is registered;
• date of receipt of the application for taking measures to protect the inherited property (notification of the approximate composition of the inherited property) or the instruction of the notary, who opened the inheritance case, to take measures to protect the inherited property;
• surname, first name, patronymic, address, and in necessary cases – the place of work and positions of the persons participating in the inventory;
• surname, first name, patronymic of the testator, date of his death, place of opening the inheritance and location of the inherited property;
• information about heirs;
• information on whether the premises were sealed before the notary’s arrival and by whom, the condition of the seals and stamps, if the premises were sealed;
• a description of the inherited property with a detailed description of each item separately (color, weight, denomination, size, grade, brand, year of issue, and for foreign currency – a banknote, its denomination, value at the rate of the National Bank of Ukraine, etc.) and determining their value, taking into account the percentage of depreciation.

In case of disagreement with the assessment of the inherited property, the heirs have the right to invite a specialist-expert or appraiser to conduct an additional check of the value of the items entered in the inventory act. Such a need arises quite often, especially if the inheritance contains jewelry, antiques, equipment, collectibles or other property, the market price of which may cause disputes between interested parties. In this case, the payment for the work of experts and appraisers is borne by the heirs.

After completing the inventory of property, the notary records in the act not only a list of things that were in the deceased’s house or apartment, but also the total number of items and their value. The results are entered on each page of the document, and after the inventory is completed, the total value of all inherited property is indicated. The act includes all property found in the deceased’s apartment, since it is this document that subsequently determines the composition of the inheritance, which is subject to preservation until it is accepted by the heirs.

During the inventory, situations often arise in which neighbors, acquaintances or other persons declare their rights to individual things that were in the deceased’s apartment or house. The notary enters such statements in the inventory act, after which he explains to interested persons the procedure for applying to the court to exclude this property from the inventory of the inheritance. However, the notary does not have the right to independently resolve a dispute about the ownership of property.

If the inventory of the inherited property cannot be completed in one day or the procedure is interrupted for other reasons, the premises are sealed by a notary each time. The document must indicate the reasons for the interruption, the time of termination and resumption of the inventory, as well as information about the condition of the seals and stamps when the premises are reopened. This procedure is necessary in order to eliminate the risk of unauthorized access to the inherited property or the disappearance of individual items.

After the inventory is completed, the property is transferred for safekeeping to a custodian, whose data is entered in the act. The notary indicates the surname, first name and patronymic of this person, year of birth, place of residence, as well as the details of the document certifying the identity. The inventory act itself is drawn up in at least three copies, which are signed by the notary, witnesses, interested parties and the custodian of the inherited property. One copy of the document is transferred to the person who accepted the property for safekeeping.

The heir, the guardian of the property of a person recognized as missing, or another person designated by the heirs may be appointed as the guardian of the entire estate. If there is an executor of the will in the estate, he receives the authority of the guardian of all estate. Before transferring the property, the notary warns the guardian about criminal liability for embezzlement or concealment of the estate, as well as about material liability for possible losses.

A separate procedure is provided for property that requires special storage. If weapons, ammunition, explosives or special means of self-defense are discovered during the inventory, such items are transferred to the internal affairs bodies under a separate inventory. The notary transfers money and securities to deposit accounts or to a banking institution, and receipts for their acceptance are attached to the estate.

It should be noted that jewelry, precious metals, foreign currency, pearls and other valuables also do not remain in the usual place of storage. After entering them into special records, the notary transfers them to a banking institution under a separate description. This mechanism allows for proper preservation of property until the completion of the inheritance procedure.

State awards, orders, medals and award documents, if there are heirs, remain with the deceased’s family. With the consent of the heirs, such awards may be transferred to museums for temporary or permanent storage. If there are no heirs, state awards and award documents are transferred to the state.

In addition, valuable manuscripts, literary works, correspondence and other documents of historical or scientific significance are also included in the act of description of inherited property. If there are heirs, such materials are transferred to them for storage. In the absence of heirs, the notary transfers documents under a separate description to the relevant institutions – archives, museums, scientific institutes or other organizations that have the right to ensure their proper preservation in accordance with the requirements of the law.

In cases where objects included in the state register as historical and cultural monuments are found among the inherited property, the notary shall notify the cultural heritage protection authorities. This procedure is necessary so that the state can control the preservation of things that have historical or cultural value.

Savings books, mortgage documents for things transferred to a pawnshop, and other similar documents are transferred to the heirs for safekeeping. If there are no heirs, these documents remain with the notary until the issue of the further fate of the inheritance is resolved.

During the inventory of property, the notary may discover things that have lost any material value due to significant wear and tear. In such a situation, with the consent of the heirs or the financial authority, if the inventory is carried out without their participation, such items are not included in the inventory act. In the future, they may be transferred for destruction or to a specialized base of recyclable materials under a separate inventory.

A separate procedure also applies to food products found in the deceased’s apartment. If the heirs participate in the inventory of the property, the products are transferred to them. If the inventory is carried out without heirs, long-term storage products can be transferred to the appropriate organizations for sale. Such a transfer is formalized by a separate act signed by the notary, witnesses and the person or representative of the organization receiving the products.

In our practice, there are situations in which it is impossible to take measures to protect the inherited property. The reasons may be different: the persons who lived with the testator do not allow the notary to enter the premises, object to the inventory, hide the property or report that it has already been removed. In such a case, the notary draws up an appropriate act and informs the interested parties about the situation, and if necessary, the financial authority or the prosecutor.

If, during the protection of the inherited property, it turns out that the inheritance includes property that requires constant care, maintenance or performance of certain legal or factual actions to maintain its proper condition, the notary may conclude an agreement on the management of the inheritance. Such an agreement is concluded with an interested person provided that the heirs or the executor of the will are absent. Before concluding the agreement, the notary must make sure that the property actually belonged to the testator at the time of opening the inheritance. Information about this is indicated in the text of the agreement with a reference to the relevant documents, if any. The agreement itself is drawn up on the basis of an inventory of the inherited property, which becomes an integral part of it.

If, after concluding the agreement, an application for acceptance of the inheritance is received by the notary, the person who managed the property receives a notification of the termination of such agreement. If the heirs are absent, have been removed from the right to inherit, have renounced the inheritance or no one has accepted it, the inheritance management agreement continues to be valid until the court makes a decision to recognize the inheritance as deceased.

Sometimes, after drawing up the inventory, people appear who believe that their belongings were mistakenly included in the inherited property. For example, this may apply to equipment, furniture or other items that were temporarily in the deceased’s apartment. In this case, the dispute is resolved through the court by filing an application to exclude the property from the inventory act. After receiving the court decision, the notary makes a special entry on the act indicating the details of the court decision and a list of items that are excluded from the inventory of the inherited property. This entry is certified by the signature and seal of the notary, and a copy of the court decision is attached to the inheritance case materials.

The termination of measures to protect the inherited property is carried out by the notary who introduced them. If the place of opening the inheritance and the place of protection of the property do not coincide, the notary who terminates the protection shall first notify the notary at the place of opening the inheritance. The heirs and the executor of the will also receive a corresponding notification. After the termination of the protection of the inherited property, the powers of the executor of the will continue to operate until the testator’s will, set forth in the will, is fully fulfilled.

It should be noted that in rural settlements, the authority to take measures to protect inherited property, in addition to a notary, may be exercised by an authorized official of a local government body.

Therefore, we advise you not to postpone contacting a notary if, after the death of a person, property remains that is accessible to third parties, or there is a risk of its loss, damage or concealment. An application for the protection of inherited property helps to record the composition of the inheritance, determine the responsible guardian, transfer valuables for proper storage and reduce the risk of future disputes between heirs, creditors and other interested parties.