Elena Vladislavovna KOSENKO, Candidate of Jurisprudence. Associate professor of Civil and Family law Department (Saratov State Academy of Law)
The scientific article is an analytical review of existing rules of inheritance law of the Russian Federation and some countries of the European Union. A generalization rules revealed some differences in the solution of certain legal issues. The scientific article is addressed to scientists, jurists, however, will be interesting for a wider audience.
Keywords: heirs, inheritance, spouse inherited debts.
Настоящая научная статья представляет собой аналитический обзор существующих правовых норм в области наследственного права Российской Федерации и некоторых государств Европейского Союза. Обобщив эти правила, мы выявили некоторые различия в разрешении определённых правовых проблем. Эта научная статья адресована учёным и юристам, но вместе с тем может представлять интерес и для широкой аудитории.
Ключевые слова: наследники, наследство, передаваемые супругам долги
From a scientific point of view the current stage of development rights is characterized by increased attention to the comparative characteristics of Russian and international law. However, if we previously observed the trend of exaggeration of the role and focused on the special status of “developed” legislation in Europe, today the Russian researcher sees the absolute progress of domestic law. Moreover, we can declare that some civil norms of the Russian law are the most responsible the democratic principles: equality, justice, integrity, and others.
Let us pay attention to the rules of succession to be in force in the Russian Federation, France and Germany.
Civil Code of Russia contains a rule that is included in the estate property, including property rights, which are owned by the testator at the time of death. Commitments inextricably linked to the identity of the testator are not included in the estate.1
Inheritance law in France includes estate donated to the heirs in the inherited estate. That is, if the heir during the lifetime of the testator received from him a gift it must be returned to the hereditary mass, and it is also taken into account when determining the value of the inheritance. While in favor of the heir to the legacy set, it also provides an advantage to the former present in the composition of their hereditary share.
There is a significant difference of French inheritance law on the definition of marital share in determining the hereditary mass. First of all, we note that the spouse is a special separate category heir. For a long time the husband was not a heir at all, as it was common concept according to which the inheritance is assumed to belong to blood relatives only. Only with the adoption of the Law number 2001–1135 dated December 3, 2001, the power of husband has changed significantly.2
Since that time the husband was included in the heirs, he was guaranteed the right to housing and the right to alimony (although this point is not entirely clear as to the current Russian legislation, because alimony can be recovered only from living persons).
Now, the spouse has the right to choose between the right to use all property and the right of entry into the inheritance on ¼ hereditary mass. At the same time, the spouse is entitled to demand the transformation of the right to use in the contractual rents. In other words, the surviving spouse has the right not to use the property, but to demand from other heirs lifelong benefits (as if he transferred the property to the contractual rents).3
In contrast to these regulations, the German Civil Code provides for the addition of registered marriages and the state recognizes the so–called partnership — cohabitation and conducting joint management by two persons. And in the first and — the second case, a roommate is the successor of the first phase, as well as a spouse in a registered marriage.
German Civil Code §1933 also contains a rule according to which the surviving spouse is generally excluded from the heirs, if at the time of making the will there existed conditions for divorce and the testator asked for divorce or agreed to divorce.4
We must pay attention to the position of the German Civil Code §1963. According to it, if at the time of opening the inheritance the birth of an heir is being awaited, the mother of the heir, if she is not able to support herself has the right to request the maintenance at the expense of the entire estate, or only a fraction of that owed to the future heir. At the same time based on the fact that only one heir is born. This rule seems to us amazing due to the fact that modern methods of determining fetal allow to establish with precision how many heirs will be born.
In accordance with the civil law of France, children born in and out of wedlock have equal rights when entering into the inheritance. However, this rule has been established recently — only in 2001, already referred to us by the law (which established the right of a spouse to be the heir). For the first time in France, illegitimate children were included in the list of heirs by the law of 25 March 1896, but they were limited in their rights and could only get a tenth of what was owed to the heir under the law establishing the relationship. According to Act of January 3, 1972, these differences were partly abolished. Illegitimate children were increased share in the inheritance, but they — were still more disadvantaged than legitimate children.
In accordance with Russian legislation, the heirs must apply to a notary for entry into the inheritance within six months after its opening. This rule is optional, as is allowed so–called actual entry, but in this case the heir has problems with registration documents of title to the objects included in the succession mass. In these cases, the heir is usually forced to apply to a court to establish the actual entry into the inheritance as notaries refuse to issue a certificate of inheritance due to the passage of six months.
French law provides for several other rules. While that may be the actual entry into the inheritance rights and direct expression of will by appealing to the notary, other terms for heirs are established. The heir shall, within three months after the opening of the succession to make an inventory of the property with the consent of the judge (i.e. the court is informed about the opening of the inheritance). Further more the heir is given 40 days to think (that is to make a decision: whether to accept the inheritance). During this period, creditors must declare all the debts of the testator to be the heir to repay. After this period, the heir must make a decision and creditors, if he accepted the inheritance require payment. If creditors are not announced as the heir, though it continues to use the property is not carried out (that is not issued), his choice, after thirty (30!) years is considered to have waived inheritance (st.789 Civil Code of France).
German law establishes a shorter period for entry into an inheritance and the refusal of it — just six weeks. At the same time, if the heir decided to abandon the inheritance, he must apply to the court for probate. The Court draws special application protocol and informs the other heirs about the refuse, so that they could take inheritance §1944–1945 §1953.
We must note here an interesting feature that distinguishes the norms of Russian and French inheritance law of succession. Thus, in accordance with the provisions of the Civil Code, the heir is liable for the debts of the testator only to the value of inherited property. While the French law of succession does not contain such a general rule. On the contrary, the heir has to make effective measures: consult with the requirement of entry in the register of the Office of the High Court at the place of the inheritance. Heir submits to the court an inventory of the hereditary mass, because up to this point it is considered that his property and hereditary mass are “mixed” and now the lenders may foreclose on the entire property. It is for the implementation of the possibility of excluding from his property “mixed” with hereditary he must perform these steps. The civil law of Germany is quite different. According to subsection 3 the heir is imposed with such serious responsibilities that can not help think that he is in a less advantageous position than the creditors themselves. Thus, the heir is liable for the debts of the testator to the value of inherited property, if voluntarily establishes guardianship over inheritance (some rules stated: legacy management) or it will be sued about the failure of estate (that is, recognized that its value is not enough to cover all debts).
At the same time, the heir is considered as an attorney of the creditors and must first take care of their interests. Even if the heir of the estate started ruling after another heir (for example, first refused the inheritance), it is considered in relation to the creditors to act without orders for the entire period prior to its management. If the heir becomes aware that the hereditary mass is not enough to repay the debt, he shall immediately report it to the court about the insolvency of estate. He is thus removed from the control and further actions to meet creditors’ claims are made by a designated manager.
Moreover, if the hereditary mass is so insignificant in value that it is not enough for this management (in fact a professional manager must obtain and reward), it becomes the property of the lender and without control by force. But the most stringent requirement to the heir contains §1992 according to which even if the value of inherited property is not enough to pay off the creditor’s claims and, in fact there will be no successor of any — or whether the inheritance, he must fulfill the established testament legacies and laying.
Civil Code of Germany also contains provisions according to which the State is encouraged to take inheritance in the absence of heirs under the law and under the will. However the “reasonable time” was established to identify the heir (the exact date is not set, despite the fact that as a general rule you need to start a legacy for six weeks). Court of probate has to make a public offer to a statement of their rights (as defined by the law in printed, and now the electronic edition) and if the heir did not respond, the court determines that the property is transferred to the treasury. If the value of the property is so small that will not cover the costs of a public offering of the statement of its rights, the court is released from this obligation (§§1964–1966).
German Civil Code does not contain specific rules of inheritance of land. A few paragraphs provide encumbrance inherited land (for example: rent, mortgage, servitude, other real rights). There is a clear rule of encumbrance things, known since ancient Roman law, namely: the right follows the thing. The rules of succession lay the obligation to the heir of Germany to respect previously imposed encumbrances (§§2135, 2166–2168).
1 The Civil Code of the Russian Federation (part three) of 26 November 2001. №146–FZ, as amended. Federal Law of 5 May 2014 // Collection of Laws of the Russian Federation. 2001. № 49. Art. 4552; Rossiyskaya Gazeta dated May 07, 2014. №101
2 See: Rostovtseva NV Property rights of juveniles: Development Trends inheritance laws of Russia and France. URL: http: // www. juristlib.ru> book_7407.html (date of treatment 04.24.2015).
3 For details, see Voir : P., J. Goubaux Civil Law, Private notary law. Modes of property relations between spouses. Inheritance by law — gratuitous transaction (the will. Giving) / Pierre Voir Gilles Goubaux (translated from French. Sosiete de traduction ALPHATRADE). M., 2007, pp 151–168.
4 Civil Code of Germany — Deutsches Bűrgerliches Gesetzbuch mit Einfűhrungsgesetz: input. to the Civil Law. ulozheniju; per. with it. / (B. Bergmann, enter., Ed.): Scientific. Editors — AL Makovski (etc.) — 2 ed. ext. — M., 2006.