The procedure and conditions for inheritance are enshrined in the Civil Code of the Russian Federation. Article 1146 of this normative act establishes the rules of succession in the order of submission. Consider the features of this legal institution.
The content of the norm
According to Article 1146 of the Civil Code of the Russian Federation, inheritance by the right of representation is allowed in cases enshrined in paragraphs 2 of Art. 1142-1144. At the same time, the share of the successor under the law, who died simultaneously with the testator, or before the opening of the inheritance case, passes. It is divided between descendants in equal parts.
The provisions of Art. 1146 of the Civil Code of the Russian Federation does not apply to cases where the deceased successor was deprived of an inheritance (Clause 1119 of the Civil Code). A similar rule applies to a successor who would not have inheritance rights in accordance with paragraph 1 of Art. 1117.
Art. 1146 of the Civil Code of the Russian Federation with comments
Based on the provisions of the norm, succession by the right of representation is such a situation in which the heir, as it were, replaces the deceased ancestor, who would accept property rights within his line if he did not die.
Institute, secured by Art. 1146 of the Civil Code of the Russian Federation , provides a special procedure for calling persons to inherit. A kind of "reserve" successors are involved in the case within the same line. To implement the provisions of the norm, there should be no immediate heirs in an ascending (direct) line. In this sense, the rules established by Art. 1146 of the Civil Code of the Russian Federation, similar to the order of assignment of a successor related to inheritance by will. However, between them there are a number of significant differences due to the basis of succession.
Differentiation issues
The testator, at his discretion, may indicate in the last will of another successor in case the heir appointed in the will, or determined by force of law, dies. He may die:
- Before the opening of the case.
- At the same time as the testator.
- After opening the case, not having time to accept the inheritance.
Appointment can also take place in the event of a person not accepting, rejecting or removing the inheritance.
The succession provided for by Art. 1146 of the Civil Code, is allowed not by any, but only by persons specified in the law. At the same time, there is a reservation in the norm. The provisions expressly indicate the articles in which cases of inheritance are fixed, in the manner with art. 1146 of the Civil Code: 1142, 1143, 1144 of the Code.
Differences from Representative Relations
Despite a certain similarity of names, inheritance in the order of presentation and representation do not have common features.
Objectively, they should not be. The fact is that relations of representation are impossible with the deceased entity. The entry into the place of the deceased successor is not connected with the protection or realization of his interests and rights.
The subject called to inherit according to the rules of Art. 1146 of the Civil Code , becomes an independent successor. Consequently, he exercises his rights in relation to the share in the hereditary mass due to the deceased descendant of the owner.
These provisions, as indicated by lawyers in the comments to Art. 1146 of the Civil Code of the Russian Federation , do not contradict clause 2 of clause 1114 of the norm and do not cancel the order fixed by it that persons who died on the same day do not inherit from each other.
Inherited Transmission
Succession in the order of presentation must be distinguished from transfer of rights to accept inheritance. It is established in article 1156 of the Civil Code. The transmission takes place in a situation where the heir was alive on the opening date of the case, but did not manage to take his share. Consequently, this successor does not mediate the exercise of independent rights by the heirs of the transmitter in relation to the respective share.
Nuances of implementing the provisions of the norm
Taking into account the rules enshrined in Articles 1142-1144, the features of the succession in the order of presentation are as follows. Such inheritance is allowed only within the first 3 queues. The heirs under Art. 1146 perform:
- Grandchildren and their successors (1st turn).
- Nieces and nephews (2nd turn).
- Cousins / brothers (3rd stage).
The legislator has established such a procedure for the implementation of the protection of the rights and interests of close relatives. Moreover, the norms of inheritance are not determined by such criteria as cohabitation, disability, etc.
Features of the first stage
Together with the grandchildren of the successors, their descendants can inherit in the order of presentation. But in the remaining groups, the descendants are not included. Due to the fact that the rules governing inheritance are not subject to extensive interpretation, representatives of future generations of nieces / nephews and cousins / brothers inherit in the 5th and 6th stages, respectively.
The descendants of the grandchildren are called to the inheritance case in the order of presentation if their parents, i.e. the grandchildren of the property owner, also died before the opening of the inheritance or with it.
In fact, the circle of successors can be considered closed only relatively. The fact is that the degree of kinship of possible descendants is not limited. Therefore, by virtue of life expectancy, descendants of several future generations, i.e., great-grandchildren, great-great-grandchildren, etc., can theoretically be called on to succeed in the order of representation within the first stage.
Important point
When inheriting in the order of presentation, the descendants of the deceased heir receive the status of immediate successors of a particular queue. Consequently, they automatically exclude other persons included in all subsequent groups.
For example, if the owner has a grandson, a nephew, and a brother, the first one removes from the hereditary mass of citizens included in the following lines, including successors by right of representation.
Void Circumstances
As mentioned above, successors by law represent the deceased heir. Consequently, their call to inheritance is carried out taking into account legal circumstances that annul the rights of the deceased successor.
So, in accordance with paragraphs 2 and 3 of article 1146, the descendants of the deceased are not called to inheritance if the latter was deprived of the rights of the owner or would not have powers as an unworthy successor. Legal sources indicate that rule 2 of paragraph 1 of paragraph 1117 of the article on recognizing heirs as unworthy by virtue of the deprivation of their parental rights is not relevant to the provisions of Art. 1146 of the Civil Code of the Russian Federation. In judicial practice, this is justified by the fact that parents cannot act as heirs.
Controversial moment
The legislation has not resolved the issue of the effect on the rights of heirs involved in the proceedings in the manner of presentation, recognizing the deceased descendant as unworthy, in accordance with the provisions of paragraph 2 of paragraph 1117 of the article, due to his failure to fulfill obligations to maintain the property owner. Given that successors replace their parents, the corresponding influence takes place.
The difficulty lies in the fact that in paragraph 3 of article 1146 there is a reference only to paragraph 1117 of the norm. Formally, this excludes the possibility of implementing paragraph 2 of Art. 1117 (by virtue of the provisions on literal interpretation).
Additionally
When called for succession in the order of representation, persons become immediate heirs and exercise their rights. Consequently, the provisions of 1146 norms are implemented regardless of whether these entities have the right to inherit from their parents in the framework of separate legal relations. In other words, it will not matter if they are deemed unworthy or have been denied the opportunity to inherit.
Meanwhile, it should be borne in mind that the right to represent involves the exercise of independent rights. Succession in accordance with Art. 1146 is not allowed in relation to the mandatory share due to the deceased descendant. The provisions of the norm also do not apply in situations where the successor himself, called in the order of submission, was previously deemed unworthy and removed by the owner from inheritance or the testator assigned another entity in case of death of the immediate heirs.
If there are several successors by right of representation, the share is divided equally between them. If there is only one heir, the content of his rights to property does not differ from the legal capabilities of other entities included in the same queue.