21 January 2016
Association of Lawyers of Russia «discussed and supported the» progressive «project of Pavel Krasheninnikov amending the» hereditary «law. Notaries once again reported that» the project does not hold water «, and practicing lawyers arguing: all consider the proposed amendments» raw «, but some say their
On Friday there was a meeting of «Association of Lawyers of Russia», which the board acted in support of the bill to amend the Civil Code and other laws relating to inheritance law. For the first time talking about it on May 26 this year, when the chairman of the legislative committee of the State Duma, United Russia, Pavel Krasheninnikov, introduced a draft for discussion in the State Duma. He proposes to introduce in Russia fundamentally new for us form disposition of property after death, such as a joint will, the funds and the hereditary contract and replace the certificate of inheritance, certificate of inheritance, for the issue of which notaries will receive a fixed amount. In addition, the paper addresses the issues of trust management of property in the period before and after the adoption of the inheritance, the powers of notaries and executors.
On July 16, the Presidential Council for Codification and Enhancement of Civil Legislation refused to support the proposed changes to the Civil Code, assuming that they substantially increase the burden on the courts and make life difficult for citizens.
With principled objections made and the Federal Chamber of Notaries (PNP), noting that some of the ideas contained in the draft, «requires significant improvement," and some of them «may have disastrous consequences for citizens." «The project does not stand at its very conception. Some issues can be solved within the framework of existing legislation,« — voiced the position of the PNP’s press secretary Yevgeny Nikonorova Chamber. According to her, such innovations as a joint bequest and inheritance funds can meet the specific interest of the company or business, however, «there are many conceptual issues that are not addressed in any way in discussing a bill." Notary dissatisfied with the fact that, according to the project plan to eliminate the notaries from the process of determining the composition and value of inherited property. According Nikonorova, this will «highlight the impossibility of compulsory share, the share of married», while «there will a number of other issues for the citizens, especially disadvantaged." FNP believes that, on the one hand, the number of appeals to the courts to grow at times, and the other — not everyone will be able to bear the costs associated with participation in the trial (for the services of a representative, fees and other).
Elena Kravchenko, Head of the Secretariat of the Constitutional Court of the Russian Federation asked Krasheninnikov, change to somehow approach to the allocation of a mandatory share in inherited property because, as she said, Now there are distortions in the direction of violations of the rights of vulnerable heirs, and in the direction abuse of their rights. The MP said that as long as no changes are planned. Perhaps they will be included in the bill after the first reading will take place.
On the same say and practicing lawyers. Natalya Nazarova, a lawyer family law consultancy Heads, considers that the proposed amendments are not absolute, but rather are a way to resolve some procedural aspects, without changing the essential problems. According to her, in case of approval of the bill, the process will be more
Krasheninnikov responds to criticism optimistic. «The Civil Code of 1964 queues inheritance was only two, and when we are at the beginning of the XXI century is preparing amendments, for which they became eight, we also said that the courts will be inundated, but nothing, practice went,« — he recalled Speaking at a meeting of the Board Ayur, adding that now is the time to empower disposal of property in case of death. I agree with him Eugene Gurchenko, a senior lawyer AB «Egorov, Puginsky, Afanasiev and Partners», who believes that «although the bill looks very raw and underdeveloped in many moments, the very idea of self reform of inheritance law timely and relevant." According to him, the current legislation is focused more on the Soviet era, when the bulk of the assets of the citizens was flat. «For this reason, many aspects of the succession of larger states or states indebted, were settled not enough — says the lawyer. — In this regard, relevant short stories concerning the expansion of tools for the transfer of property to the heirs, as well as on management of hereditary property and creditor rights. Of particular interest are the norm of the possibility of setting up a fund for the management of the estate. " Lawyer company «Hrenov and partners» Maria Korovitsyna from the relevance of innovations do not agree. «In my opinion, it [the bill] adoption is impractical at this stage of development and changes in legislation of the Russian law." She believes that it is first necessary to adopt the Federal Law «On notary and notarial activities», «which will be a comprehensive act regulating the existing legal procedures and the procedures that will be introduced later.»
Alternative bequest
Krasheninnikov briefed the audience the main provisions of the proposed amendments to the «hereditary» law. According to him, all three alternatives to «traditional» will have long and successfully used abroad. «Such podynstituty as joint wills and hereditary agreement exist in Germany since the XIX century and proved to be good,« — he said. Sharing a will help to avoid conflicts in the division of marital property after the death of one of them, and inherited the contract, not only to avoid «surprises» after the opening of the will, but will also provide a clear fulfillment of the will of the testator due to set out in its conditions (for example, to oblige the heir to pay the tuition or treatment of another person mentioned in the contract). As for the funds, then they, too, for the world of practice is nothing new here MP recalled the Nobel Foundation, Bosch, Ford, Michael Jackson and Freddie Mercury, who not only do charity, but also to the further management of the business of the deceased. According to him, this story is also a sort of «Anti- offshore measure», as the Russians have created such funds, but abroad.
«Meanwhile, it is obvious that the introduction of similar legislation in the form of asset management requires the development of a more detailed regulation and work», — says Gurchenko of «Egorov, Puginsky, Afanasiev & Partners." Maria Korovitsyna of «Hrenov and partners," notes that the design of joint wills and inheritance flawed agreement, and the proposal on amendments to para. 4, Art. 256 of the Civil Code on the share of the surviving spouse — is irrelevant, in her view, for the regulation of these relations is enough already existing provisions in the third part of the Civil Code, as well as the norms of the Family Code.
Another important question is how Krasheninnikov said, for the «survival of notaries." The bill would replace the certificate of inheritance, certificate of inheritance to all the property of the testator, wherever it was, and whatever it was expressed, or share in the right to such property. The new version of the evidence would not necessarily include information on the succession mass. According to the MP, this information is often incomplete, since they included only known heirs property, and «liabilities, such as information on the credit commitments, 90% of cases are not included at all.»
Under the current wording of Art. 333.24 of the Tax Code for the issuance of a certificate of inheritance by law and by the will of the state duty for the children, including adopted children, spouse, parents, full brothers and sisters of the testator is 0.3% of the value of inherited property, but not more than 100 000 rubles. for the other heirs — 0.6% of the value of inherited property, but not more than 1 mln., while the adoption of measures for the protection of the inheritance will be charged 600 rubles. The amendments to be installed fixed tariffs for the issuance of the certificate of inheritance: children, including adopted children, spouse, parents, full brothers and sisters of the testator — 500 rubles., Other heirs — 1000 rubles. Krasheninnikov said that this caused a negative reaction notary
The proposed innovation is not only unhappy with notaries. «Comprehensive certificate of inheritance to all the property of the testator is not the best way affect the citizens in terms of practical application and presentation of such evidence at the subsequent possession and disposal of property,« — said the lawyer Korovitsyna. According to her, the innovations also had a negative impact on the functioning of the system of notaries and public authorities.
Who will take care of the inheritance?
Senior Adviser of the Committee Krasheninnikov Ales Demkina said that one of the most pressing issues, according to the complaints filed by the citizens, is the management of hereditary weight at a time when the property has not yet accepted the inheritance. «Business objects for six months are out of control. If during this time on the property do not take care, it may have nothing left,« — she said. The proposed changes completely «reformat» Art. 1173 of the Civil Code (trust management of the estate).
Who is entitled to the appointment of the trustee has only a notary public, and then only at the request of the interested parties (heirs or their legal representatives). The new version of the trust management agreement may be concluded with the executor (they can be both physical and legal persons), who is also (and notary) the right to appoint a trustee (or more) if necessary, without the request of interested persons.
The contract of trust management must take into account the disposal of the deceased (for example, on how the trustee has to vote at meetings of directors or shareholders). Notary (executor) assumes the duty to control the actions of the manager, bimonthly requiring him to report.
Also, the novel raises the question of the fate of the property held in trust. According to the current norms of the legislation, the Trust Deed are six to nine months (the period for acceptance of the inheritance), and after the protection of the inheritance and management terminated, regardless of whether the heirs entered into law. According to the draft, the property is transferred only after receiving at least one of the heir certificate of inheritance, if the heirs do not require such a transfer, trust management agreement is concluded for five years.
Creditors' claims are now «zamorozhivayutsya» to accept the inheritance, the project — may be considered by the court at any time, the interests of the heirs are the notary or executor. One caveat — the penalty can not be drawn on the property in trust until the termination of the contract.
In general, the board members were in favor of Ayur to support the project, «as progressive." Chairman Igor Manylov, head of the FAA «Glavgosexpertiza Russia», said that it should be discussed «in the field», in the regional administrations, even before the first reading will take place in the State Duma.
