Publication date: 08.05.2024
Explanation: What is inheritance and why is it important to inherit?
Inheritance is the transfer of rights and obligations (inheritance) from a deceased individual (the testator) to other persons (heirs).
Acceptance of the inheritance is important for the further execution of property documents, as well as ma-kes it possible to take any actions regarding the disposal of property. The peculiarity is that in case of fai-lure to accept the inheritance within the prescribed period, a person may be deprived of the inherited property and it will become the property of the territorial community, or it will be necessary to apply to the court.
The right to inherit is exercised by the heir by accepting the inheritance and submitting an application for acceptance to the notary office at the place of opening the inheritance within six months, which begins from the time of opening the inheritance. Such actions are not required if the heir has permanently resi-ded with the testator at the time of the opening of the inheritance and has not declared his or her rejec-tion of the inheritance within the six-month period established for acceptance of the inheritance. A minor, underage, incapacitated person, as well as a person whose civil capacity is limited, is considered to have accepted the inheritance if they have not filed a statement of refusal to accept the inheritance within the period established for its acceptance.
What do the Ukrainian MPs propose?
It is proposed to prohibit the refusal to accept the inheritance if there are debts on the testator's obligations to creditors until they are satisfied within the value of the inheritance.
It will be impossible to refuse the inheritance if the testator had debts. The relevant idea is enshrined in the draft law 11220 on amendments to the Civil Code of Ukraine regarding the settlement of certain is-sues of refusal to accept the inheritance by the heir in case of creditors' claims under the testator's ob-ligations. The author is MP Oleksandr Lukashev from the Restoration of Ukraine faction.
As the author points out, according to the Civil Code, an heir by will or by law may refuse to accept the inheritance. At the same time, there are cases when the property received by the heir as an inheritance is burdened with certain debt obligations. In this case, Article 1282 of the Civil Code provides for an obli-gation for the heir to satisfy the creditor's claims in full, but within the value of the inherited property.
However, the deputy writes, given the right to refuse to accept the inheritance, defined by law, in order to avoid foreclosure on property to repay a debt, heirs often refuse to accept the inherited property in vio-lation of the principles of integrity and good faith in civil relations, to conceal the debtor's assets from foreclosure by individual creditors under the debtor's obligations, thereby causing damage to such a cre-ditor.
Lukashev also refers to the position of the Supreme Court in its ruling of October 6, 2022 in case No. 904/624/19, which states that an agreement concluded to avoid the fulfillment of the agreement and the obligation to pay the debt is an abuse of the right to conclude an agreement and dispose of property, as it makes it impossible to fulfill the obligation and causes damage to the creditor. Such an agreement may be considered fraudulent and may be declared invalid by a court at the suit of the person whose right has been violated, i.e. the creditor.
"The Supreme Court came to similar conclusions in its ruling of February 9, 2023 in case No. 910/12093/20," the MP adds.
In view of the above, it is advisable, in the author's opinion, to amend Articles 1273, 1274 of the Civil Code of Ukraine, which provide for a ban on refusal to accept an inheritance in the event of debts under the testator's obligations to creditors until they are satisfied within the value of the inherited property in the manner prescribed by this Code.
Thus, we can see that the adopted amendments to the current law were adopted taking into account the changes in the requirements of the time and the imposed martial law in Ukraine, as well as the fact that a legal analysis of the situation, analysis of documents and verification of documents by a lawyer and a legal opinion were conducted.
