What is a will and assignment, and what rights do its executors have?

In what cases does the need for a testamentary refusal arise?

During his lifetime, a person does not always have time to do everything he wanted. For example, a serious illness may prevent the testator from fulfilling some property obligation. When leaving a will, he can transfer the fulfillment of this obligation to the applicants for the inheritance. And if the heir accepts the property encumbered by such a refusal, then he must automatically fulfill the obligation specified in the will.

The successor cannot refuse to perform the assigned duties. This is provided for by the principle of universal succession: if you accept property and rights, so accept responsibilities. You cannot take only the property and abandon the encumbrances.

IMPORTANT !!! Please note that it is impossible to accept an inheritance and subsequently fail to comply with the testator’s orders. The one in respect of whom a testamentary refusal is made has the right to force the heir in court to fulfill the duties assigned to him.

Thus, if we briefly define a testamentary refusal, it is the assignment of certain actions to the heir. The one who has the right to demand the fulfillment of these obligations is called the refusal recipient. In fact, he is a creditor in relation to the heir. In this case, the recipient of the refusal may be one of the heirs, or may be a complete stranger.

A testamentary legacy is sometimes also called a legacy. The term "legate" comes from Roman law. It means a gift to a stranger, which the heir was supposed to transfer to him at the expense of the inheritance. The recipient of the refusal, the comparison accordingly, is called the legatee.

The difference between a testamentary assignment and a testamentary refusal

The conditions for refusal of a will and assignment are similar, but have a number of differences. Acceptance of rejection also varies significantly. The refusal is aimed at fulfilling the will in relation to third parties. Contribution to the benefit of animals, a socially useful cause. The responsibility for fulfilling the refusal is imposed on the heir.

The assignment is performed by the legal successor, executor, and third parties. There is no deadline for implementation for the latter. It is envisaged that there will be interested parties who have the right to demand the fulfillment of the will. The most famous example is the establishment of the Nobel Prize.

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A classic example of a testamentary refusal is a will with restriction.

Allocate funds to the heir if he will take care of an elderly relative until the end of his days.

The wish will be directed at a specific person or action, the fulfillment of which will become a prerequisite for the right to receive an inherited share.

There are many well-known assignments around the world, for example, cats living in the Tretyakov Gallery, their rights are strictly controlled by law.

The mansion of Ernest Hemingway, where several dozen six-toed cats are kept for life, watched over by the heirs of the great writer.

What obligations can be assigned to the heir?

In a will, the owner of the property can oblige the heir to perform a number of actions.

These include:

1. A one-time payment to the legatee of a certain amount of money. If the testator owed someone, but the loan was not formalized by an agreement or receipt.
2. Granting the right to use property. Most often, such an obligation is established in relation to a property. For example, the possibility of living in an apartment or house for the rest of your life. After the death of the recipient, the right to reside in the apartment does not pass to his heirs. But there is a nuance here. The will may appoint a legatee. This could be a child or other relative of the main recipient, or a complete stranger. The law does not limit the testator's appointment.
3. Since alimony obligations are not inherited, in order to provide for his child, the testator may oblige the heir to make periodic payments from the transferred property.
4. Transfer of some items from the hereditary mass (both into ownership and simply into possession).
5. Transfer is possible not only in relation to the thing itself. Certain property rights can also be transferred. For example, if a testator lent money to someone, he can transfer the right to collect the debt through a testamentary refusal.
6. Performing any work for the legatee, or providing him with a service.
7. Purchasing something in order to give it away to the recipient.

The Civil Code of the Russian Federation leaves the list of such actions open. Those. the testator establishes any obligations for the heirs that do not contradict the law.

What rules apply to the execution of a will?

The type of transfer of one's obligations under consideration can only be specified in the will and nowhere else. Such encumbrance on the property passes along with it even when sold to an outsider.

ATTENTION !!! Therefore, when buying residential real estate, it is better to contact a notary to obtain information about such an encumbrance. Notaries have a single database, so any notary office can provide such information upon request.

It’s better to pay a fee for notary services than to have to deal with an unwanted tenant later. It is almost impossible to evict a legatee, especially if this is his only place of residence.

The will itself can only represent an instruction to the heir to perform certain actions (i.e., the testamentary refusal is limited to it).

The heir performs the actions of a will only at the expense of the inheritance transferred to him or its part. The testator does not have the right to oblige the heir to do something at his own expense. Moreover, first of all, the successor pays the debts of the testator, and only then carries out these instructions. If after paying off the testator's debt there is nothing left, the heir has the right not to fulfill the testamentary refusal.

Actions within the limits of a will cannot be performed at the expense of the obligatory share. After all, the establishment of a mandatory share is a kind of guarantee for disabled members of the testator’s family.

The assignment can be entrusted to several heirs. They fulfill it within the limits of their bequeathed share of the inheritance.

The rights to bequeath a legacy can be claimed no later than three years from the date of death of the testator.

The testamentary refusal passes along with the share in the inheritance.

How and where is a will and assignment made?

The notary handles the paperwork. The testator draws up the document. The document describes in detail the will of the testator, and must be prepared in two copies.

The executor is responsible for the execution of the will. If the successor fails to act, he has the right to demand the execution of the will through the court. Failure to perform actions may result in deprivation of property rights. Control functions can be performed by interested parties. The document comes into force from the day the estate is opened. Performed using inheritance funds.

The notary must clearly warn about the legal restrictions on expressing the will, which must be recorded in the document.

At the time of preparation of documents, a person is appointed who will represent the interests of the testator after his death, monitor the procedure for dividing property, and monitor the implementation of the will. The executor is given a special right to demand execution of the will, to apply to the judicial authorities in case of evasion of obligations, to initiate deprivation of an inheritance share in case of refusal to carry out the will of the deceased. He confirms his consent in writing and receives a notarized document confirming his rights and obligations.

In what cases is it possible not to execute a will?

Each heir needs a kind of cheat sheet in which cases a testamentary refusal is not executed:

• if the recipient refuses it;
• if the legatee died before the death of the testator or simultaneously with him;
• if the inherited property is not enough to carry out the actions specified in the will;
• if within three years the recipient has not applied for a testamentary refusal;
• the legatee may be recognized as an unworthy heir. Accordingly, the obligated heir is exempt from fulfilling the testamentary refusal. Either refusal, the recipient pays for the work performed or service rendered.

The heir is released from the obligation to perform these actions in the above cases, but only if an additional legatee is not appointed.

What is a testamentary assignment?

A testamentary assignment, like a testamentary refusal, burdens the heirs with the performance of some duties. But the main difference between imposition and refusal is the nature of the actions and the purpose. In case of testamentary refusal, all actions are aimed at allocating property or providing funds. But when entrusted, actions not related to the transfer of things or money are also possible.

Such actions include, for example, the burial of the testator, the maintenance of his pets at the expense of the allocated part of the inheritance. Also, the testator may oblige his heir to receive education in a certain field. The allocated part of the inheritance can be used to establish awards for artists or to finance scientific research of young scientists.

The encumbrance in question is possible not only for the heirs, but also for the executor of the will. The executor of the will is allocated a portion of the inheritance to carry out such actions. In a testamentary assignment there is no analogue to the refusal of the recipient. There is a kind of benefit to purchasers when it comes to pets. Sometimes the obligation to transfer a specific item is established as a testamentary assignment. And then the rules on testamentary refusal apply.

ATTENTION !!! The assignment has no expiration date. If the execution of a will can be demanded only within three years, then the assignment burdens the heir throughout his entire life until he fulfills it. But only if the subject of the testamentary assignment is actions of a non-property nature.

If you need to transfer property or money, then the period for this is three years (statute of limitations). After three years, the heir or executor of the will is released from testamentary assignment. However, there is also a testamentary refusal that does not have a validity period - when the benefit to the acquirer is granted the right of residence or other opportunities to use the immovable object.

Inheritance law. Commentary to the Civil Code of the Russian Federation

Chapter 62. Inheritance by will

Commentary on Article 1133. Execution of a will

1. A will is made in order for it to be executed. Otherwise, making a will is meaningless. The execution of a will is complicated by the fact that the one who left the will is no longer alive, and therefore in controversial cases that may arise during the execution of the will, he cannot be addressed. True, his will, expressed in the will, is “present”, and it should be primarily guided by it when executing the will.

2. In Art. 1133 provides that the execution of a will is carried out by the heirs under the will. By securing this provision, the legislator proceeds from the fact that during the execution of the will, disagreements between the heirs will not arise. If there is no agreement, and this often happens, then disputes arising between the heirs during the execution of the will, as disputes about civil law, must be resolved in court. The will is executed by the heirs themselves, except in cases where its execution is carried out in whole or in part by the executor of the will. When executing a will, both the heirs and the executor of the will must strive to ensure that the will is properly executed, so that the will of the testator is, as far as possible, fully carried out, they must provide each other with all possible assistance in the execution of the will, without allowing waste in spending of funds. In a word, all persons involved in the execution of a will must behave like respectable, diligent owners, comparing their actions with how the testator himself would behave in a similar situation. In other words, when executing a will, both the heirs under the will and the executor must behave with dignity, without casting a shadow on either themselves or the good name of the testator.

3. If, during the execution of the will, it turns out that there are any gaps, ambiguities or inaccuracies in the will, then they are subject to completion or elimination by interpreting the will and taking into account other circumstances that are essential for establishing the alleged will of the testator.

Disputes during the execution of a will must be resolved in court not only when they arise between the heirs under the will, but also when they arise between the heirs and the executor of the will. We will now move on to consider the legal status of the executor of the will.

Commentary on Article 1134. Executor of a will

1. The testator may entrust the execution of a will to the person specified by him in the will, guided by a variety of considerations, without motivating or explaining them in any way. This may be caused by the fact that the testator has reason to fear that the heirs will “squabble” during the execution of the will, and he expects, with the help of the executor, to separate them. This may also be caused by the inexperience of the heirs, and the testator, so that no one abuses their trust, wants to “assign” to them a person experienced in everyday affairs, of whose integrity he is confident. This may also be due to the fact that the execution of a will due to the composition of the inheritance or other circumstances requires special knowledge that all or some of the heirs do not have. In a word, the execution of a will can be entrusted by the testator to the executor for a variety of reasons, which sometimes one can only guess at.

2. The testator may entrust the execution of a will to the citizen specified by him in the will, who is called the executor or, which is the same thing, the executor of the will. The executor of a will can only be an individual, but not necessarily a citizen. This can be a stateless person (stateless person) or a foreigner. But a legal entity cannot be the executor of a will. The executor of a will can be either the heir of the testator (both under the will and by law) and a person who is not one of the heirs. It is necessary, however, that the executor of the will (at least by the time he must begin to fulfill the duties assigned to him) has full legal capacity. If, at the time of making the will, the executor indicated in the will was fully capable, but by the time the inheritance was opened, he had lost his legal capacity or was limited in it, then he can, and even should, be relieved of his duties (see paragraph 2 of Article 1134 ) .

If the content of the will boils down to the fact that it indicates the person to whom the testator entrusts the implementation of his (testator's) will in relation to the inherited property, then this order must at least be accompanied by a clause: in accordance with the law. If there is such a clause, it can be assumed that the testator wanted the property to be inherited by the heirs by law. If there is no such clause, then the will, as invalid, has no legal force, and in the example given, the heirs by law are called upon to inherit.

In order for a citizen to become an executor of a will, it is necessary to obtain his consent. However, this consent can be given not only during the life of the testator (by a citizen’s handwritten inscription on the will itself or in a statement attached to the will about the citizen’s consent to be an executor), but also in an application submitted to the citizen by a notary within a month from the date of opening of the inheritance. Thus, a citizen can learn about the order assigned to him by the testator to be the executor of the will only after the opening of the inheritance. It is also recognized that the citizen has agreed to be the executor of the will if he actually began executing the will within a month.

Thus, a citizen’s consent to be the executor of a will can be expressed both by direct expression of will and by performing implied actions. However, if this consent is expressed, then regardless of whether it is expressed before or after the opening of the inheritance, by direct expression of will or implied actions, the executor, at his request, may be released from his duties by the court. In addition, the court may release the executor from his duties at the request of the heirs (for example, due to the negligence or dishonesty of the executor). However, both at the request of the executor himself and at the request of the heirs, the court may release the executor from his duties if there are circumstances that prevent their fulfillment.

3. What is the legal status of the executor of the will? Although the law states that the testator entrusts the executor with the execution of the will, the executor cannot be considered as an attorney (representative) of the testator simply because when the executor begins to execute the will, the testator is no longer alive. The executor is not the heirs' attorney, if only because he conducts affairs related to the execution of the will on his own behalf. In addition, the interests of the heirs during the execution of a will may collide, and if the executor acted on behalf of the heirs, he would find himself in the position of a servant of two or more masters. And this is, as a general rule, excluded in relations of representation (assignment). At first glance, the executor is closest to the representative (attorney) in cases where the testator “connects” him to only one of the heirs, believing that, due to his inexperience or other qualities that cause fear to the testator, he needs a guide. However, even here the executor does not act as a representative (attorney), since he is the executor of the testator, and not the heir to whom he is connected. If the will of the testator, expressed in the will, diverges from the will of the heir, the will of the testator has priority for the executor.

The executor, in terms of his status, is closest to the trustee (assistant) of an adult capable citizen over whom patronage is established (see Article 41 of the Civil Code ). However, one cannot discount the significant difference between patronage and the execution of a will with the help of an executor. If, under guardianship in the form of patronage, the trustee (assistant) performs legal actions necessary to protect the rights and interests of the patronized person on his behalf, then the executor of the will, as already noted, has the right to conduct affairs related to the execution of the will on his own behalf. In addition, the interests of the heir (heirs), to whom the executor of the will is connected, may diverge from the will of the testator. For example, the heir does not want to execute a testamentary refusal or testamentary assignment. In this case, the executor of the will, fulfilling the will of the testator, must demand from the heir the execution of the legacy (imposition). In addition, the patronage structure does not work at all when the executor of the will is connected to an heir who does not have full legal capacity. Here, the executor of the will must come into contact not only and, perhaps, not so much with the heir himself (sometimes this is impossible), but with the relevant guardianship and trusteeship authorities, as well as the guardians (trustees) of the heir.

Commentary on Article 1135. Powers of the executor of a will

1. To execute a will, the executor must be vested with powers that are based on the will and certified by a certificate issued by a notary. Powers are a combination of rights and obligations necessary for the executor to carry out the will.

2. In paragraph 2 of Art. 1135 provides a list of measures that the executor must take to execute the will, and this list is not exhaustive, but approximate, since it is accompanied by the clause “including”. Let us draw attention to the fact that when implementing these measures, the will of the executor of the will, who is obliged to fulfill the will of the testator as completely as possible, may collide with the will of the heirs. So, this may take place in the case provided for in subsection. 4 paragraphs 2 art. 1135 , when the executor must insist on the execution of a testamentary assignment or testamentary refusal, even if the heirs oppose it. In this case, priority is given to the will of the testator, the conductor of which is the executor of the will, but, of course, if the will of the testator complies with the law.

Among the measures that must be taken by the executor of the will, first place is given to the measures that are necessary to ensure the transfer to the heirs of the inherited property due to them in accordance with the will of the testator expressed in the will and the law. And this is understandable, since the executor of the will is primarily appointed for this purpose. This measure in relation to all others is of a general nature. Let us note that we are talking about the transfer of inherited property to the heirs in accordance with the will of the testator and the law. This confirms the previously expressed idea that the content of the will can be limited to the appointment of the executor of the will. However, it must be accompanied by a clause that the executor must ensure that the will is carried out in accordance with the law. Then, when executing the will and interpreting it, one can proceed from the completely reasonable assumption that the executor of the will must ensure the transfer of the inherited property to the heirs by law called to inherit.

When implementing the following measures - to protect the inheritance and manage it in the interests of the heirs, the powers of the executor of the will are often intertwined with the powers of the notary at the place of opening of the inheritance (see commentary to Articles 1171-1173 of the Civil Code ).

The executor of the will must receive the funds and other property due to the testator for transfer to their heirs, if the funds and other property are not transferable to other persons (see commentary to Article 1183 of the Civil Code ).

Finally, and this has already been discussed, the executor of the will must execute the testamentary assignment or demand from the heirs the execution of the testamentary refusal (see commentary to Article 1135 ) or testamentary assignment (see commentary to Article 1139 of the Civil Code). Let us draw attention to the fact that the executor of a will can execute a testamentary assignment himself, while he can demand the execution of a testamentary refusal only from the heirs. This is explained by the fact that the obligation to execute a testamentary legacy can be assigned in a will only to the heirs, while the obligation to execute a testamentary legacy in the presence of the conditions provided for in paragraph. 1 clause 1 art. 1139 of the Civil Code , may also be assigned to the executor of the will (see commentary to Article 1139 of the Civil Code ).

3. By virtue of clause 3 of Art. 1135, the executor of a will has the right, on his own behalf, to conduct affairs related to the execution of the will, including in court, other government bodies and government agencies. Let us note that he has the right to conduct these affairs on his own behalf; for this, the powers vested in him by will are sufficient. No special power of attorney for conducting such affairs is required either from the heirs, much less from the testator (he is no longer alive!). The executor of a will can conduct business in court within the framework of all types of proceedings known to civil proceedings (claim, writ, special, from administrative-legal relations).

Commentary on Article 1136. Reimbursement of expenses associated with the execution of a will

The testator and executor of the will are usually connected by a personal trust relationship. You can hardly entrust the execution of your last will, expressed in a will, to the first person you meet. Perhaps this is only possible in an extreme situation, when the testator has no choice. This, however, does not mean that the executor of the will should not be reimbursed for the necessary expenses associated with the execution of the will. In this case, the expenses must be necessary, that is, those that cannot be avoided. The executor of a will has the right not only to compensation for expenses that he has already incurred, but also to compensation for expenses that he will inevitably face in the future. However, both those and other expenses should not go beyond what is reasonable. The executor of a will has the right to compensation from the inheritance for expenses, regardless of whether this is provided for in the will or not. But with the remuneration of the performer, that is, with payment in excess of the costs of the services he provides or, simply put, his work, the situation is different. The executor of a will has the right to remuneration, in addition to reimbursement of expenses, only when it is provided for by the will. In essence, here, taking into account the personal-trust nature of the relationship between the testator and the executor of the will, the same model is used as in the agency agreement (Article 1, paragraph 1, Article 972 of the Civil Code ). The amount of remuneration, if not specified in the will, should be determined in accordance with business customs.

Let us emphasize once again that the performer can receive both reimbursement of expenses and remuneration from the inheritance (for the order of reimbursement of expenses, see the commentary to Article 1174 of the Civil Code ).

What if the expenses incurred by the executor of the will turn out to be unjustified, although they were quite reasonable? Since expenses are to be reimbursed from the estate, the risk in this case is borne by the heirs.

Commentary on Article 1137. Testamentary refusal

1. Testamentary refusal refers to special testamentary dispositions of the testator. Its specificity lies in the fact that in this case only his heir can be the conductor of the will of the testator. By establishing a testamentary refusal or, what is the same thing, a legacy, the testator imposes on one or more of his heirs the fulfillment, at the expense of the inheritance, of an obligation of a property nature in favor of one or more persons (legatees or, what is the same, legatees), who acquire the right to demand the fulfillment of this responsibilities.

Let us immediately draw attention to the fact that a testamentary refusal must be established only in a will (it cannot be established in any other order of the testator), that the content of a will can be exhausted by the testamentary refusal alone, and that, finally, the execution of a testamentary refusal can be entrusted to not only on the heir(s) by will, but also on the heir(s) by law, and sometimes on both. According to the previously existing legislation (see Part 1 of Article 538 of the Civil Code of 1964 ), only the heir(s) under a will could be burdened with a legacy. In cases where the content of the will is exhausted by a testamentary refusal, it may be as follows: “I entrust to my heir (name) the fulfillment at the expense of the inheritance of an obligation in favor of such and such (name), expressed in such and such.”

It is not even necessary to indicate in this will that the person burdened with the legacy is the heir. Firstly, this can be done in one will, and the order establishing the legacy in another. Secondly, if there is no will in favor of the specified person, then he will be considered encumbered by the legacy only when he is called to inherit by law, since the legacy encumbers only the heirs (including the heirs of the person who was encumbered by the legacy - see comment to Article 1140 of the Civil Code ).

From the fact that the contents of a will may be limited to the establishment of a testamentary refusal, it follows that the testator can oblige the heir to transfer the entire inheritance to the legatee in the form of a testamentary refusal. In this case, the obligation imposed on the heir to fulfill the testamentary refusal can be considered as a hidden form of depriving the heir of an inheritance (after all, the heir will not get anything). However, even in this case, the heir is not released from the obligation to pay off the debts of the testator at the expense of the inheritance and only after that transfer what is left to the legatee.

2. Compared to the previous legislation (cf. Art. 538 of the Civil Code of 1964 ), the new Civil Code defines the subject of the legacy much more broadly. This is the transfer to the legatee of ownership, possession under another property right or for use of a thing included in the inheritance, transfer to him of a property right, again included in the inheritance, acquisition for the legatee and transfer to him of other property, performance of certain work for him or providing him with a service or making periodic payments in his favor, etc. Let us note that the subject of a testamentary refusal can be things, real and obligatory rights, actions, works and services, i.e. the entire set of material goods that act as objects of civil rights.

deserves attention . 2 p. 2 art. 1137 , where a rule that was known to previously existing legislation is enshrined in a more generalized and expanded form. The point is that the heir to whom a residential house, apartment or other residential premises is transferred, the testator may impose the obligation to provide another person, i.e., the legatee, for the period of this person’s life or for another period of time, the right to use this premises or its a certain part. Before the entry into force of part three of the Civil Code, this right was usually classified as limited real rights to use someone else’s thing, i.e. easements (cf. paragraph 4, paragraph 1, article 216 of the Civil Code ; part 2, article 538 of the Civil Code of 1964 ). In the new Civil Code, the right in rem and the transfer of a thing for use seem to be divorced (cf. paragraph 1, paragraph 2, Article 1137 and the characterization of the right with which the legatee is vested in accordance with paragraph 1, paragraph 2, Article 1137 of the Civil Code , as a non-real one given.

The right to use residential premises granted to the legatee is urgent, regardless of whether it is granted for the life of this person or for another period. The death of the legatee, even if the period for which the premises were provided has not yet expired, entails the termination of this right. And if the period expires during the life of the legatee, then this right terminates with the expiration of the specified period.

Although the right to use property granted to the legatee, Art. 1137 and does not count among real rights, it follows the thing: when the right of ownership of property that was part of the inheritance is transferred to another person, the right to use this property, granted by testamentary refusal, remains in force.

3. As a result of the opening of an inheritance, an obligatory relationship arises between the legatee (creditor) and the heir burdened with a testamentary refusal. The rules of the Civil Code on obligations apply to them, if from the rules of section. V “Inheritance law” and the essence of a testamentary refusal does not follow otherwise. For the sake of the necessary completeness of the presentation, looking ahead, we note that if the legatee died after the opening of the inheritance without exercising his right to receive a testamentary refusal, this right does not pass to anyone (except for the case when another legatee is assigned to the legatee) and is terminated.

4. The right to receive a testamentary refusal is valid for three years from the date of opening of the inheritance and does not pass to other persons. In other words, the legatee can use this right for three years (namely, use it, not use it, since he can use this right for a longer period, for example, throughout his life). The expiration of the specified period entails the termination of the right to receive a testamentary refusal. But if another legatee is assigned to the legatee, then he can demand from the heir the execution of the testamentary refusal (see paragraph 4 of Article 1137 and paragraph 3 of Article 1138 of the Civil Code ).

Commentary on Article 1138. Execution of a testamentary refusal

1. Clause 1 of Art. 1138 reproduces, although in a slightly different edition, the rules of Parts 3 and 4 of Art. 538 Civil Code 1964

In the procedure of hereditary succession, not only the assets of the hereditary estate pass to the heirs, but also its liabilities, i.e., the debts of the testator falling on it. In cases where the heir is burdened with a legacy, it is necessary to determine the order of satisfaction of the obligations to be fulfilled by the heir. What needs to be done first: should I pay off the debts of the testator or execute the legacy? The law, both current and previous, takes an unambiguous position on this issue - first you need to pay off the debts of the testator and only after that execute the testamentary refusal. Both are subject to execution at the expense of the inherited property, within the limits of its value, i.e., within the limits of the asset, inheritance, but not all, but only that which passed to the heir, who is obliged to pay the corresponding part of the debts and execute the testamentary refusal. The heir will have to be content with what remains (if any remains?) after paying the debts and executing the testamentary refusal.

There is, however, one exception to this rule. If the heir who is entrusted with the execution of the testamentary refusal is one of the necessary, i.e., has the right to an obligatory share in the inheritance (see commentary to Article 1149 of the Civil Code ), then first, as in the first case, the debts of the testator are paid , then that part of the inheritance that constitutes the obligatory share is reserved, and only from the remaining part of the inheritance the testamentary refusal is executed.

2. In cases where a testamentary refusal burdens several heirs, an obligation arises with a passive plurality of persons, that is, with a plurality of persons on the side of the heirs acting as debtors. Such an obligation in accordance with the general rule of Art. 321 of the Civil Code is recognized as shared, i.e., each heir is obliged to execute a testamentary refusal in proportion to the heir’s share in the inheritance. The will, however, may provide otherwise. In particular, the heirs may be obligated in the will to execute the testamentary refusal in equal shares, even if this does not correspond to their shares in the inheritance.

3. Perhaps, in the rules on testamentary refusal, the greatest interest and a certain difficulty in disclosing their content are the rules of paragraph 3 of Art. 1138 , which are a logical continuation of the rules of paragraph 4 of Art. 1137 of the Civil Code and to some extent duplicate each other.

Rules clause 3 art. 1138 , as well as the rules of paragraph 4 of Art. 1137 of the Civil Code , are designed for those cases when the legatee, for one reason or another, has lost the right to receive a testamentary refusal. In these cases, the right to receive a legacy does not pass to anyone and the heir is released from the obligation to execute the legacy. However, there is one exception to this rule: if another legatee is assigned to the fallen legatee in the will, then the heir is obliged to execute the legacy to the designated legatee.

Commentary on Article 1139. Testamentary assignment

1. A testamentary assignment, like a testamentary refusal, refers to a special testamentary disposition of the testator, and they are quite close to each other.

Firstly, if during a testamentary refusal the testator imposes on one or more heirs under a will or by law obligations of a property nature in favor of one or more persons called legatees, then during a testamentary assignment he can oblige the same persons to perform any action not only property, but also non-property nature, and this action must be aimed at achieving a generally beneficial goal. Thus, the specific person in whose favor the specified action should be performed may not be designated during a testamentary assignment. If, say, the testator obliged the heir, at the expense of the inheritance, to buy warm clothes for a certain amount of money and transfer them to an orphanage in which the children of refugees and internally displaced persons live, then such a testamentary disposition can be qualified as a testamentary refusal. If the testator obliged the heir to equip a public canteen and feed everyone in need in it until the funds allocated for these purposes in the will are exhausted, then there is a testamentary assignment. Secondly, the execution of a testamentary refusal can be entrusted not only to the heirs (as is the case with a testamentary refusal), but also to the executor of the will, provided that a part of the inherited property is allocated in the will for the execution of the testamentary assignment. But even in this case, such a duty can be assigned to the executor of the will in the will itself. After the death of the testator, it can be assigned to the executor with the consent of the executor and the heirs. The testator may impose the obligation to maintain the testator's pets, to supervise and care for them not only on the heirs, as provided for in paragraph. 2 p. 1 art. 1138 of the Civil Code , but also, as we believe, to other persons to whom the animals are attached (for example, to a housekeeper who lived with the testator for many years).

In cases where the subject of a testamentary disposition is actions of a property nature, the rules of Art. 1138 of the Civil Code on the execution of a testamentary refusal, which emphasizes the closeness of a testamentary assignment and a testamentary refusal (legate).

2. Interested persons (for example, a society for the protection of cultural property or a society for the protection of animals), the executor of a will, any of the heirs have the right to demand the execution of a testamentary assignment in court, unless otherwise provided by the will. For example, an heir to whom the testator left funds for the maintenance of a dog squanders them and abuses the animal. The Dog Breeders Society has the right, on the basis of Art. 241 Civil Code and paragraph 3 of Art. 1139 bring a claim to the heir for the ransom of the animal at the expense of the funds left for these purposes in the will and transfer it to good, reliable hands.

Commentary on Article 1140. Transfer to other heirs of the obligation to fulfill a testamentary refusal or testamentary assignment

1. Commenting on Art. 1137-1138 of this Code, we have learned that the right to receive a testamentary refusal is valid for three years and does not pass to other persons. An exception here is made only for those cases where the legatee, who for one reason or another lost the right to receive a testamentary refusal, was assigned another legatee. It should be especially emphasized that the right of the legatee to receive a testamentary refusal cannot pass to his heirs by way of hereditary transmission (see commentary to Article 1156 of the Civil Code ). And this is understandable, because by way of hereditary transmission the right to accept an inheritance can pass. Meanwhile, the right to receive a testamentary refusal and the right to accept an inheritance are not the same thing. If the legatee exercised the right to receive a testamentary refusal, then the right to what was denied to him, under certain circumstances, may pass to his heirs, but not by way of hereditary transmission, but as part of the property that belonged to the legatee, but as a testator.

Let us emphasize, however, once again: the right to receive a legacy is valid for three years and does not pass to other persons, except in the case where another legatee is assigned to the legatee in the will. The position of the legislator on this issue can be explained by the fact that a testamentary refusal is intended to be received by a very specific person who is connected with a personal trust relationship with the testator. The testator’s intentions usually do not include the receipt of a testamentary legacy by the heirs of the legatee, and if the testator wishes this, he can appoint them as reserve legatees to the main legatee.

2. The situation is different when the legatee does not drop out of the game, and the share of the heir burdened with a testamentary refusal passes to other heirs of the same testator in the order of increment of inherited shares (see commentary to Article 1161 of the Civil Code ). In this case, the specified heirs, unless otherwise follows from the will or law, are obliged to fulfill such refusal. What if there is no increase in the inheritance shares, but the right to accept the inheritance, which the heir burdened with a testamentary refusal did not have time to exercise, passes to his heirs by way of hereditary transmission? Are they obliged, if the inheritance is accepted by them, to fulfill the testamentary refusal? Yes, they are obliged, because as a result of accepting the inheritance, the share of the inheritance due to the heir burdened with a testamentary refusal will pass to them with all their assets and liabilities.

Thus, in the order of doctrinal interpretation of the law, one must come to the conclusion that the heirs to whom the obligation to fulfill the testamentary refusal passes include not only the heirs of the same testator who established the refusal, but also the heirs of the heir burdened with the refusal, who did not have time to accept the inheritance, to whom, by way of hereditary transmission, the right to accept the inheritance was transferred from him (of course, provided that the inheritance is accepted by them).

3. Rules art. 1140 , which already follows from its text, relate to a testamentary assignment, since the change of an heir burdened with a testamentary assignment does not in itself prevent the fulfillment of the will of the testator who established the assignment. Accordingly, the obligation to fulfill the assignment passes not only to other heirs of the testator, who received the share of the fallen heir in the order of increment of shares, but also to his own heirs, who received his share in the order of hereditary transmission.

How is the encumbrance of an inheritance formalized?

Both types of encumbrance should always be specified in the will. The will is certified by a notary. However, not only a notary can accept a will with a legacy or assignment written in it.

The law equates the following to notarized documents:

1. wills of those sentenced to imprisonment, certified by the heads of prison colonies;
2. wills certified by sea captains;
3. wills of citizens on various expeditions in remote areas, certified by the leaders of these expeditions;
4. wills of citizens undergoing treatment in medical institutions, certified by a representative of their administration or the doctor on duty in the case of an urgent will (if the person dies and delay is impossible);
5. wills of military personnel, certified by the commanders of their military units. The command of a military unit certifies not only the wills of military personnel, but also their family members, as well as civilians, but only if there is no notary at the place of deployment;
6. wills of patients in nursing homes and the disabled, certified by their head physicians.

Only the testator can exclude a legacy or assignment from the text of a will. This is possible either by changing the existing will or by drawing up a new one.

If the heir accepts the inheritance, then he cannot refuse to execute the testamentary assignment or refusal. Otherwise, the executor of the will, legatee or other interested parties have the right to demand in court the fulfillment of the assigned obligation.

The concept of laying

The concept of testamentary assignment is discussed in detail in Art. 1139 of the Civil Code of the Russian Federation. This obligation is imposed by the testator on the executor, and implies the performance of an action that fully or partially serves a generally beneficial purpose.

Activities can have both a property and non-property focus:

1. non-property – the most common now, and may differ depending on the contents of the will and the possibilities of execution. For example: the heir must marry in order to become the full owner of the inheritance.
2. Property - relevant if the sale of property is unprofitable. For example: the heir must live in the inherited apartment for the rest of his life without the right to sell it.

The testator in the will can assign responsibility to the heirs for the pets that remain after his death. He has the right to demand maintenance and care for them.

Important! The fulfillment of the assignment cannot be ignored: if the heirs refuse to voluntarily fulfill the obligation, the executor is forced to persuade them to do so in court.

Executor

The person forced by the will to carry out the assignment is called the executor. His powers are regulated by the will, and are confirmed by a certificate of the established form, which the executor receives from a notary. According to Art. 1134 of the Civil Code of the Russian Federation, he notifies the notary of his consent to fulfill the request of the deceased in one of the following ways:

• leaving a signature in a completed will;
• supplementing the will with a statement recording consent to the procedure;
• by submitting a notice of consent to the notary within a month after the reading of the will;
• the actual beginning of the execution of the will of the deceased within a month after the opening of the will.

The executor undertakes to make every effort to fulfill the obligations required by the testator. His competence includes:

• ensuring the transfer of property to the heirs as described in the will.
• Taking measures to preserve or manage property before transferring ownership to heirs.
• Receipt of property assigned to heirs and transfer to them.
• Requirement to fulfill the assignment from the heirs.

The executor is not necessarily the heir, and the involvement of a third party most often complicates the situation. Payment for the executor's services is made from the total amount of the inheritance, which reduces the size of the resulting will. However, in the execution of the assignment, the third party plays the most significant role.

Important! The actions required in the will can also be directed at the executor, but at least partially must meet a goal useful to society. A striking example of an assignment is the requirement of the testator, obliging the heirs to spend a share of the inheritance on the purchase of goods for orphanages, hospitals, or contributions to a charitable foundation.

Execution order

The specifics of the execution of the assignment will depend on who the performer is. There are two options:

1. executor – heir of the will.
   Within six months after reading the will, the heir writes to the notary a statement of desire to issue a certificate of the right to inheritance. After 6 months, he receives a certificate, accepts the property assigned to him and begins to fulfill the assignment.
2. The performer is a third party.
   With the appearance of a third person, the situation becomes more complicated. The powers and measures that a third person must take to fulfill the assignment are prescribed by the testator in the will. After opening the will, the notary draws up a certificate in which the executor’s duties are duplicated.

If voluntary fulfillment of the assignment does not occur, the following have the right to demand judicial settlement of disputes:

• parties interested in fulfilling the assignment;
• executor of the will of the deceased;
• one of the heirs under the will.

According to paragraph 3 of Article 1139 of the Civil Code, other categories of citizens cannot insist on the execution of the assignment.

Reimbursement of the performer's expenses

Article 1136 of the Civil Code of the Russian Federation states that all expenses incurred by the executor during the execution of actions to carry out the assignment must be paid.

He also has the right to receive remuneration for his actions if payment is provided by the testator. The monetary reward is calculated in excess of the expenses incurred and is paid by the heir. If the testator has not taken into account in advance the additional payment for the executor of his claims, then the latter will have to be content only with mandatory reimbursement of expenses.

Attention: The executor has no right to demand remuneration if it is not specified in the will. However, if he decides that the effort expended is not comparable to the monetary reward offered, he may not consent to the assignment.