Hereditary transmission: the concept and the right of inheritance

Hereditary transmission is a term that is officially used in the legislation of the Russian Federation. Understanding the essence of this concept is important not only for people associated with legal science and practice, but also for ordinary citizens. Faced in the ordinary life with inheritance, including in the order of transmission, anyone can. Therefore, we suggest that you familiarize yourself with these rules for the acquisition of material goods and learn some of its important nuances.

The concept of a hereditary transmission

In the legal literature, transmission is regarded as a special situation of the transition of an unrealized right to the acceptance of hereditary property not to the heir, but to other persons by will or by law. It becomes possible in case of the death of the legal successor that occurred after the procedure of opening the inheritance. An important condition is that a person does not have time to take material and non-material benefits in a period established by law. In this situation, the possibility of obtaining the property of the deceased is given to his own relatives and relatives - by law or testament, if it took place. In the hereditary transmission of the deceased heir is called a transmittent. And the new, which is endowed with the privilege of obtaining property, is called a transmissar.

Inheritance law of the Russian Federation: transmission

In the Russian legislation, before the development and adoption of the third part of the Civil Code on hereditary and international private law, the term "hereditary transmission" was not officially fixed. It was used only in judicial practice and scientific literature. Of course, in the Civil Code of the RSFSR of 1964 (Article 548), the possibility of transferring the right of inheritance in special cases was considered. The concept of "transmission" in the inheritance law of the Russian Federation was described and was officially fixed only in March 2002, in the third part of the Civil Code.

The essence of it is that the right to accept the material goods of the transmittent passes to the transmisser (in the event of the death of the first) after the procedure for the opening of the property. An hereditary transmission occurs when a transmittent has the privilege of receiving wealth by the time of his death, that is, he does not lose this right through the court, by testament or does not renounce it at will. An important circumstance is that the transmissar can only receive that portion of the inheritance that was intended for the transmittent itself. If the latter has several successors, they will inherit the property together, perhaps in equal parts.

Features of the transfer of the right of inheritance to the transmitter

Let's consider some features of the mechanism of "hereditary transmission". The Civil Code of the Russian Federation (Article 1156, item 1) establishes that the privilege of inheritance of property, which appeared in the transmisser after the death of the transmittent, is not included in the composition of his inheritance. That is, if the transmissar dies without realizing his right to receive the property, he will not be able to pass to his own heirs. In the event that the transmittent has other transmissars, the deceased's share will pass to them, and if not, to the heirs, who were called to accept the right of inheritance after the death of the principal testator. Sometimes it happens that the transmittent dies after the death of its testator, but still has time to take the wealth due to him. In this case, it is included in its own property, the rights to which will be transferred to its relatives on general grounds.

Acceptance of inheritance. Hereditary transmission in judicial practice

To understand the position of point 1 of Art. 1156, consider the following example. The deceased died, but managed to make a will, in which he expressed the desire to appoint his half-brother and son as heirs. A month after the opening of the inheritance, the brother died. In the order of the hereditary transmission, the right to receive material benefits passed to his wife, who was the only heiress of the first stage. However, his brother's wife died suddenly, before she could use her right. Therefore, the share of the property of the main testator, which was originally due to her husband, will be given to the second available transmittent - the son of the testator.

Personal property of the transmittent. In what order will it be obtained by his relatives?

In the event of the death of a transmittent, his relatives and friends have the opportunity to inherit his personal material and intangible benefits. That is, in fact, it turns out that the successors of the transmittent are given the possibility of simultaneously accepting two riches - one that opens after the death of their testator, and one that passes to them in the order of the hereditary transmission. Both these rights are independent and can be realized independently of each other. The receipt of personal inheritance of the transmittent will be carried out on general grounds, that is, either by law or by will. The mechanism of acquiring wealth in the order of the hereditary transmission is somewhat different. In this case, the call of successors will be made only by law, and heirs will be elected from the circle of relatives and relatives of the deceased. But there is an exception to this rule. If the transmittent has time to compile and sign a will in which it expresses the desire to transfer all of its property to one particular person, the right to dispose of the inheritance in the order of the transmission will also pass to it. If at least an insignificant part of material and non-material goods is not indicated in the will (household items, furniture, etc.), the possibility of obtaining property will be transferred to heirs by law. In this case, the choice of persons will be carried out according to the order of priority.

Acceptance of inheritance. Hereditary transmission: circle of successors

The Civil Code defines citizens who, in the order of transmission, can obtain a legal right to receive intangible and material benefits. In Art. 1156 indicates that the possibility of obtaining wealth, originally due to the transmittent, passes to his heirs by law or, if all the wealth was fully bequeathed, to the heir by testament. There are seven queues in total. In this case, the persons of the second and subsequent stages can take the right of inheritance only in the absence of closer relatives (or their renunciation of inheritance) from the previous stage. Greater priority in obtaining the wealth due to the transmittent is his wife or husband, mother and father, as well as children, including those still unborn, but conceived during his lifetime.

Receiving values in the order of transmission by parents deprived of parental rights

According to the Civil Code of the Russian Federation, namely Art. 1156, parents who do not fulfill their duties for upbringing and care, and as a result of which they are deprived of parental rights, there is the possibility of inheriting the property of their child in the order of transmission. To understand the essence of the problem, consider the following situation. A citizen dies without having made a will. His father is deprived of parental rights. The testator does not have his own children, his mother and wife have long since died. In the order of inheritance by law, property should be obtained by his half-brother, who was with the testator in kinship through the father. In the event of the death of a brother after the opening of the inheritance and the absence of a will, the right to accept material and non-material goods will pass in the order of transmission from the transmittent to his heir of the first stage - the father who was not deprived of parental rights with respect to the deceased successor. Thus, it turns out that the parent will receive the property of his son, against whom he was deprived of parental rights and initially had no right to his material wealth as an unworthy heir. From a legal point of view, this nuance is justified, since in fact an unworthy parent inherits property not after a child who did not bring up and did not keep, but after a remakeer in respect of which he was not deprived of parental rights.

What is the date of acceptance of the inheritance?

Russian legislation establishes the time period during which the procedure for accepting property must be made. It is equal to six months from the date of death of the testator, that is, from the time of the inheritance right. In the case of the implementation of the hereditary transmission, a special period is established. It is calculated from the day when the inheritance was discovered. In the event that from the moment of death of the transmittent remains less than 3 months, the period increases to the limit (up to 90 days). To accept property that directly belonged to the dead transmittent, a period of six months is used, calculated from the moment of its discovery. Those heirs who are late with obtaining wealth in the order of transmission, through the court can be recognized as having accepted it. In addition, if the aforementioned authority acknowledges that the reasons for the non-acceptance of material values in the established time period were indeed valid, the period can be restored.

Transmision and the acquisition of wealth by right of representation. What are they different about?

Succession inheritance and hereditary transmission are two different mechanisms for the transfer of property and intangible benefits from the testator to successors. Let's see what is their essence. The hereditary transmission differs from the occurrence in the person of the right of inheritance as a result of the opening of the inheritance, the refusal or removal of other relatives of the deceased. It also differs from inheritance by right of representation, by the assignment of the heir and by the increment in the share of property. First, the transmission begins to operate only in the event of the death of the transmittent, after the discovery of the property of the main testator. And inheritance by right of representation becomes possible if a person who by law should be called to receive property, dies before the opening of the inheritance (that is, before the death of the testator or simultaneously with him). In this case, wealth passes to certain persons, according to the order of priority. Secondly, the hereditary transmission, in addition to granting the right to receive the property of the deceased, regulates the very procedure for taking wealth. The right of representation, being only a subjective privilege of concrete persons established by the law, does not do this. When implementing this mechanism, the standard scheme is followed, as in normal inheritance. Thirdly, in the order of transmission, the right is transferred from the transmittent to the transmitter. When inheritance on the representation of the succession between the heir, who died before the discovery of the property, and his children and descendants there.

In what cases is the transmission mechanism canceled?

The law provides for several exceptional situations when this order of succession can not be exercised:

• Both die simultaneously - both the testator and heir;
• There is a testament in which the testator indicated another successor;
• The transferee acts as an obligatory heir.

Let's look at them in more detail. The first situation does not allow the transfer of the right to receive valuables to the transmitter, since the simultaneous death of the testator and heir does not meet the essential condition of the transmission about the death of the transmittent after the inheritance is opened. The second situation: the presence of a will also excludes the possibility of implementing a transmission mechanism. GK RF (Article 1121, paragraph 2) entitles the testator to choose another heir (in addition to the main one) in case the first one dies after or before the opening of the inheritance or refuses it. An important condition in this case is the need for the will of all property, and not its parts. Otherwise, the transmission will be possible, and the transmitters will be selected from the circle of legal heirs.

Instead of concluding

So, in this article we have considered what is a hereditary transmission and the right of representation. We described the circle of heirs, the timing of obtaining wealth and the mechanism for transferring the personal property of the transmittent. We learned how inheritance inheritance takes place. We hope that this information will be of use to you and will help if necessary to receive the property due.