In accordance with the Civil Code of Ukraine, inheritance is the transfer of rights and obligations (inheritance) from an individual who died (testator) to other persons (heirs).
It should be noted that only a natural person can be a testator, and heirs may be besides natural persons and legal entities, but only by will.
To establish the fact of the death of a natural person a notary needs to obtain the death certificate from the heir issued by the civil registration authority.
The notary opens an inheritance case in order to formalize the transfer of inheritance to the heirs. The inheritance case on the property and property rights of the testator can be opened only one and it is opened at the place of opening the inheritance.
Place of opening of the inheritance is the last place of residence of the testator. If the place of residence of the testator is unknown, the place of opening of the inheritance is the location of real estate or its main part, and in the absence of real estate - the location of the main part of movable property.
The application, the message, the telegram, etc. from the natural person or legal entity can be the basis for the opening of the proceedings in the inheritance case by the notary.
To open the inheritance case to the notary the documents confirming the moment and the place of opening of inheritance are submitted.
- In confirmation of the moment of the opening of the inheritance (this is the day of death of the person or the day from which it is declared dead), a certificate on the death of the testator or an extract from the State Registry of Acts of Citizens on the relevant death record is submitted to the notary.
- In confirmation of the place of opening of the inheritance, a certificate from the local government body, housing maintenance organization, the board of housing cooperative on registration of the place of residence of the testator, house book, which contains a record of registration of the place of residence of the testator is submitted to the notary.
The inheritance case may be opened at any time during the period set for accepting or refusing the inheritance. That is, the moment of the opening of the inheritance and the moment of the opening of the inheritance case may not coincide. Also, there is no obligation for natural persons and legal entities to apply to the notary in order to open the inheritance case.
The heirs have the right to transfer the inheritance case to another notary, but within the same notarial district upon the expiry term established by the legislation for acceptance of inheritance and if there are the following reasons:
1) termination of notarial activities of a private notary (prior to the transfer of the archive of a private notary to the appropriate state notarial archive)
2) suspension of notarial activities of a private notary;
3) the temporary blocking of the notary’s access to the State Register of Real Estate Rights;
4) cancellation of access by a notary to the State Register of Real Estate Rights;
5) liquidation of a notary public office (prior to the transfer of the archive of the office to the appropriate state notarial archive).
To do this, a notary who conducts an unfinished inheritance case or retains a completed inheritance case shall be submitted an application for the transfer of the inheritance case from all heirs. Such an application may also be submitted by representatives of the heirs.
A term of six months is established for acceptance of inheritance or refusal of acceptance of inheritance, which begins from the moment of opening the inheritance. If the heir within six months did not submit to the notary office an application for acceptance of inheritance, he is considered not accepted the inheritance. The court may determine the heir who passed term for acceptance of inheritance for a good reason, an additional term sufficient to submit an application for acceptance of inheritance.
Applications for acceptance of inheritance or refusal of it can be submitted by the heir personally in writing at the place of opening of the inheritance (in this case, the authenticity of the signature of such person on the application is not subject to notarization) or by mail (in this case, the authenticity of the signature of such person on the application is subject to notarization).
The heir who lived together with the testator as of the moment of opening of the inheritance shall be deemed as having accepted the inheritance if no refusal was declared during 6 months.
In this aspect, there are certain controversial points, for example, if the heir who constantly live with the testator but certain even significant period before the testator died he left at the place of residence of the testator on a long-term business trip will this heir be considered to have accepted inheritance without taking any action for it? The Supreme Specialized Court of Ukraine for the consideration of civil and criminal cases considers that yes - the person, in this case, is considered to have accepted the inheritance according to the Civil Code of Ukraine.
An application for refusal of acceptance of inheritance, as well as an application for acceptance of inheritance, cannot be stated with any condition or with reservations.
Acceptance of inheritance or refusal of acceptance of it may occur in relation to all inherited property. The heir has no right to accept a part of the inheritance and to refuse another part of the inheritance.
After a term in 6 months for acceptance or refusal of acceptance of inheritance, the share in the inheritance cannot be increased on the grounds that one of the heirs refuses inheritance in favour of other heirs. In such cases, the person who accepted inheritance has the right to dispose of all or part of the property received by way of inheritance, by alienating it to another heir under a contract of sale, gift, exchange, etc.
The personal attendance of the heir for obtaining a certificate of inheritance is not mandatory. The certificate of inheritance may be issued by the notary to the representative of the heir, subject to the submission of the relevant documents on the powers of the legal representative or the representative of the heir by a power of attorney, which provides for the powers of the representative to receive such a certificate.
Issue of the certificate of inheritance, the property right to which is subject to the state registration, is carried out by the notary after submission of the documents certifying the property right of the testator to such property (the certificate, the state act).
If real estate is a part of the inheritance, the notary obtains information from the State Register of Real Estate Rights by direct access to it.
If the real estate was issued till 2012 (prior to action of the State Register of Real Estate Rights) and information on it was not transferred to the State Register according to the application of the owner (testator), then heirs need to provide to the notary originals of documents of title for the execution of the certificate of inheritance.
If the title document necessary for the notary on the property was damaged, spoiled or lost and it is impossible to receive the duplicate due to the lack of the relevant documents in bodies which issued them or at their successors, or in archival institutions, this issue is resolved in court.
Today the procedure for acquiring ownership of inherited property takes place under a simplified procedure: a notary issuing a certificate of, in particular regarding real estate immediately enters it into the State Register of Real Estate Rights, thereby registering the property right of the heir, which does not require additional registration actions in other state or local authorities and institutions.
Often there is a question how to be the heirs in the case when the property of the testator, which is included in the inheritance mass, was formalized in marriage on another spouse who is alive because according to the general rule, property acquired by spouses during the marriage is owned by the wife and husband under the right of joint ownership? Here the law says the following: the second spouse, who is alive, shall apply to the notary for the issuance of a certificate of ownership of the share in the joint property of the spouses. The notary, in turn, informs other heirs of the inclusion in inheritance the share of the joint property of the spouses, and if other heirs have no objections regarding the share of another spouse who is alive, the notary will issue him a certificate of ownership of the share in the joint property of the spouses.
In practice, the above application is often not filed to a notary, therefore, other heirs either do not know about the composition of the joint property of the spouses or do not have the opportunity to prove the existence of the joint property of spouses in the notarial process because title documents are held by the second spouse whom the notary has no right to force to provide these the document.
In such cases, the heirs can protect their violated rights only in a judicial proceeding, appealing for recognition of the right of ownership of inherited property. Through the court, the heirs already have the right to demand title documents to confirm their claims.
The limitation of actions for such cases is established for a period of three years and begins to be calculated from the day when the person got to know or could know about the violation of his right or about the person who violated it.