An obligatory share in the inheritance under a will. Example calculation of the mandatory share in the inheritance

The right to an obligatory share in the inheritance is fixed by the civil legislation of Russia. For example, the norm 1149 CC defines a group of persons to whom such a share is based regardless of whether such persons are heirs by will, by law or not at all.

Constriction of freedom of will

With a detailed study of civil law, it can be determined that there is a group of people to whom hereditary law provides an opportunity to obtain an inheritance, regardless of whether there is a will of the testator or none. The rules of law that determine the mandatory share are mandatory, that is, they do not allow for any changes that require unconditional submission. The mandatory share in the inheritance under the will is also regulated by articles of the Civil Code of the Russian Federation, which limit the freedom of the last will of the testator. In particular, the norm 1119 of this legislative document explicitly provides for such a restriction. Heirs, who are entitled to an obligatory share in the inheritance under a will or under the law, are called necessary, or mandatory successors. They can not be denied the right to the share in question, except for the cases that will be described below.

Persons who are provided with an obligatory share

The Civil Code defines the circle of persons falling under the definition of heirs with an obligatory share. So, these persons can be divided into two categories, which will correspond to the descending and ascending lines.

1. The children of the deceased testator who did not reach the age of eighteen, as well as children of adults, but not able to work. To this category of persons, the spouse (a), who is incapacitated, is also included.
2. Parents of the testator who are incapacitated. Additionally in this category are included the legislator of the person who was on the maintenance of the testator. These dependents may be in blood relationship with the deceased, or may not be.

The presented list of people, to whom the obligatory share is assigned by inheritance under the will or by law, is complete. In addition to them, no one can use this right. That is, they are exclusively assignees of the first stage, and also may be additional heirs of other queues or in general persons who are not relatives of the testator, but only if they were dependent on him. All other heirs - from the second to the last turn - can not be holders of an obligatory share. Here it should be noted that descendants by right of representation can not claim an obligatory share.

In addition, it is necessary to consider the following moment. If the children of the testator were adopted by other persons after his death, they do not lose the right to an obligatory share as a result of such adoption, because the relations of the parent and the child at the time of opening the inheritance were not terminated.

Characteristics of law

The privilege for an indispensable share is not at all connected with the obligation of cohabitation or with the management of a joint farm of heirs claiming an obligatory share with the deceased. But even here there is an exception - this rule does not apply to disabled dependents.

The main characteristic that an obligatory share in the inheritance possesses in the presence of a will, as well as in the absence of such, is that the right to it is in no way dependent on the will of the other heirs. And this applies not only to heirs by law, but also by testament.

Acquisition of an obligatory share

Legislation stipulates that the right under consideration must be executed regardless of the queue of the respective successor. In this case, the absence or presence of a will is important. So, if there is no such will, then the successor, who owns the basis for the mandatory share, participates in the inheritance together with the queue that is being called. If such a testament does exist, then this successor will already participate with the heirs by will. And in those cases when only a certain amount of property was transferred by inheritance, and all other good is divided among successors by law, the heir receiving the obligatory share will be called to inheritance and successors under the will and those who receive the property of the deceased on The basis of the law.

How to determine size

An example of calculating an obligatory share in an inheritance is absolutely not complicated. Legislative acts determined that the smallest amount of such a share is calculated by dividing in half the size of the share that comes out when the common hereditary mass is divided into the number of successors by law that can be drafted for inheritance in the absence of a will. In this calculation, it is also necessary to take into account successors on the right of representation and the number of heirs claiming to be an obligatory share. With the help of such a calculation, you can easily determine what is the required share in the inheritance.

Advantage of mandatory share

The legislator has determined that the successor, who has the right to an obligatory share, has an undoubted advantage over all other heirs. This advantage, in particular, is expressed in the way of satisfaction of his right. Thus, the mandatory share in the inheritance under the will must be satisfied first from that part of the property that is not transferred by will. In the event that such property is not enough, then the mandatory share must be satisfied from the bequest of the inherited property. This advantage is due to the state's protection of the most vulnerable people, including socially.

The obligatory part in the inheritance guarantees that the successor, having the right to it, will receive the minimum amount of such share from the amount of the property of the testator, which was not bequeathed. Such a share shall be determined before the determination of the shares of the other successors of the queue caused for inheritance. Even the fact that the establishment of an obligatory share can adversely affect the share of the other heirs (they can significantly decrease or even disappear) does not reduce the rights of the heir claiming an obligatory share.

Minimum guaranteed size

The abovementioned persons are guaranteed the minimum size of the inheritance by civil legislation through the approval of an obligatory share. What does it mean? This implies that the mandatory share in the inheritance under a will, for example, which does not include figures claiming the mandatory part, will still be transferred to these persons in a minimal part. However, this share can be significantly increased. For example, if underage children participate as successors to the original line, their share in the inheritance will be much larger. The amount of property that they can receive, of course, is also directly related to the number of other heirs of the same queue.

Loss of share

Now we need to touch upon the situation in which successors who have the right to an obligatory part in the estate of the testator may be deprived of this part. This provision in the norms of the legislation appeared recently. Its essence lies in the fact that a successor counting on such a share may be deprived of it if the property under a will is transferred to a person who used it as a place of residence or an object considered to be the main source of income for the life of such a person.

Legislative flaw

In connection with the vagueness of the wording, what is a room for living, in practice there can be quite a lot of questions. If we turn to the norms of housing legislation, then it is possible to mean, not only houses and apartments, but also other buildings. It is also not entirely clear from the legislative source whether the heir residing in the testator's dwelling should live there permanently or sufficiently temporarily registering and living. All this provides loopholes for all sorts of tricks of unscrupulous heirs and, in fact, does not provide an understanding of how and what right to an obligatory share in the inheritance can be protected in such a case.

When establishing the share under consideration, the judicial body has the right to take into account and take into account the material condition of the successor who has the right to it. If such a situation is satisfactory, there is a place to live, then the court is able to take both the entire share of the successor and reduce its size.

It is noteworthy that, unlike a person pretending to be an obligatory part in the inheritance, the successor to the will is not subject to mandatory property analysis. In this case, the court must proceed from the priority of the execution of the last will of the deceased.

So, here, perhaps, and all that is necessary to know about the obligatory share in the inheritance.