Is it possible to make a will for a mortgaged apartment?

Is it possible to bequeath an apartment with a mortgage?

In Art.
1120 of the Civil Code of the Russian Federation states that any property can be bequeathed, including that which will be acquired in the future. In accordance with Art. 1112 of the Civil Code of the Russian Federation, the main condition is that the apartment must be owned by the testator. Real estate can be bequeathed after it is registered in the name of a citizen. Reference! The consent of the financial institution to include the apartment in the mortgage in the will is not required. A citizen has the right to bequeath real estate in accordance with Art. 37 of Law No. 102-FZ of February 16, 1998. If a credit institution includes clauses in an agreement prohibiting doing this, then they are declared void in court.

An apartment with an encumbrance can be inherited by:

• relatives;
• strangers indicated in the will;
• legal entities, if at the time of inheritance they are listed in the Unified State Register of Legal Entities.

A citizen can indicate one or several legal successors. If there is no will, then the mortgaged apartment will be inherited by law.

Who has the right to inherit a mortgaged apartment?

The borrower leaves a will to the persons whom he wishes to see as claimants to the inheritance. A will is expressed by the written will of a citizen regarding the disposal of property. The peculiarity of the document is that property can be disposed of only after the person passes away. In addition, according to freedom of will, the testator has the right to leave property to any person. And it is not necessary that they will be a relative. But the only thing the testator is limited to is the circle of obligatory heirs. The law puts their interests above the fundamental principle followed when making a will. This is his freedom.

If a will has not been drawn up, then the relations are regulated by the Civil Code of the Russian Federation. Its provisions, according to Art. 1142-1145 indicate persons who have the right to inherit the property of the deceased. The legislator drew up a scheme of inheritance according to the law, distributing citizens in order of priority. The closest relatives inherit first. The further the line, the weaker the blood connection between people. It is logical that the heirs belonging to the 1st stage are:

• spouse of the deceased person;
• children, including officially adopted children;
• parents.

Sisters and brothers who, according to the provisions of the Civil Code, belong to the 2nd stage, can acquire property from the owner subject to the following conditions:

• 1st stage unconditionally refused the inheritance: this was formalized by a notary with a statement from the heirs;
• Among the citizens who can inherit from a deceased relative, there are no people in the first line.

Then the application for opening of inheritance is submitted by the 2nd stage.

Important! If at the time of the death of a person there is 1 line of inheritance (citizens are alive), then 2 stages do not need to come to the notary and submit an application to him. The lawyer will not accept him on the grounds that he inherits the 1st line.

Conditions for bequeathing a mortgaged apartment

To include encumbered real estate in a will, the following nuances must be taken into account:

A mortgaged apartment is included in the inheritance estate, like other types of property, therefore it is subject to the right to allocate a mandatory share. It can be claimed by minors or incapacitated citizens living in the property together with the testator, or persons who are his dependents.

What does a will provide?

The Civil Code of the Russian Federation establishes freedom when writing a will and including transferred property in it. The heir has the right to both accept and renounce the inheritance transferred to him under the will (including an apartment).

An important condition is the notarization of these actions. A written expression of the will of the parties with personal signatures will not have legal force.

Rights of a citizen who wants to bequeath an apartment/other housing:

1. Transfer property to any persons and in any way.
2. Determine the shares of heirs.
3. Deprive someone of the rights to inheritance (in any amount) without specifying reasons.
4. Include testamentary dispositions at your discretion.
5. Cancel or edit the final document.

Restrictions on the implementation of a will for a mortgaged apartment or other housing, as well as for non-mortgage objects, arise on the issue of mandatory allocation to individuals of a part of the inheritance. Such an unconditional share ensures the property rights of spouses, close and other relatives of the deceased who have the status of disabled or minor citizens/dependents.

Features of the will of a mortgaged apartment

The main feature of the procedure is that along with the property, mortgage debts are also transferred to the heirs.
It is impossible to refuse to fulfill obligations and obtain ownership of the property. The exception is when the borrower purchased a life insurance policy when applying for a mortgage. Then the debt to the bank is repaid by the insurance company.

shares in the apartment

A citizen can appoint several legal successors. In this case, they will own the apartment as shared ownership. The legal successors are obliged to repay their obligations to the bank in proportion to the part they received as an inheritance.

to a minor child

A minor child may be indicated in the will if he does not receive a mandatory share in the apartment. His interests in the inheritance matter will be represented by a legal representative (parent, guardian, trustee).

A minor is exempt from paying state fees upon entering into an inheritance. If the apartment is encumbered, then the mortgage payments will have to be paid by the child’s legal representatives. In the absence of such an opportunity, adults can refuse the inheritance after receiving permission from the guardianship and trusteeship authorities. If the legal representatives have paid off the mortgage, then after the child reaches adulthood, they can file a lawsuit to recover the funds paid.

An apartment purchased with maternity capital is registered in the name of all family members, including minors. Parents can inherit only their part of the property to any successor.

How to make a will

A will can only be drawn up through a notary. If a document does not have a notary stamp, it will not entail any legal consequences. The notary is obliged to verify the testator’s legal capacity and his understanding of the essence of what is happening and the consequences. It is not necessary to confirm your rights to the apartment, but it is advisable. This will eliminate problems with identifying the object at the stage of inheritance proceedings.

Contents of the document

Requirements for the form and content of wills are provided for by the Civil Code of the Russian Federation. Let us highlight the key points that the testator needs to take into account:

• a will can only be drawn up in writing (usually the document is drawn up by the notary himself);
• the testator can indicate the exact characteristics of the bequeathed apartment in the mortgage, or make a clause “all property owned at the time of death is transferred”;
• the text of the will indicates the owner's passport details, additional conditions for entering into inheritance, testamentary refusals and orders.

Find out more Mandatory share in inheritance: what is it, how to get it

After drawing up a document, the notary must read it aloud. Only then is the signature and seal of a notary specialist placed. One copy of the will is given to the testator, the second remains for storage in the office archive. The notary is also required to make an entry in the federal register, which will eliminate disputes after the death of the testator.

Service cost

Services for registration and certification of a will are paid. The cost does not depend on the market valuation of the property or apartment. According to the Tax Code of the Russian Federation, for certification of any will you need to pay a notary 100 rubles. At an additional rate, the preparation of the form by employees of the notary office is paid. As a rule, such a service costs 1500-2000 rubles.

For obtaining a mortgaged apartment as a property by inheritance, the fee will be levied by the recipients. Its size depends on the price of the object and the degree of relationship with the deceased:

• close relatives must pay 0.3% of the cost, but not more than 100 thousand rubles;
• distant relatives or outside heirs pay 0.6%, but not more than 1 million rubles.

Minor children and a number of other beneficiaries are exempt from payments. If several persons receive mortgage housing at once, the state duty will be calculated in proportion to their shares.

Step-by-step instructions: how to bequeath a mortgaged apartment

To bequeath a mortgaged apartment, you must adhere to the following algorithm:

1. Collect the necessary documents.
2. Contact a notary.
3. Pay the state fee.

A self-drafted will must be written personally by the citizen and certified by a notary (Article 1124 of the Civil Code of the Russian Federation). You can contact any office, but it is better to choose one at your place of residence, since this is where the inheritance case will be opened.

The notary can offer a standard will template. When drawing up a document, an official is allowed to use technical means (Article 1125 of the Civil Code of the Russian Federation).

The will can be drawn up either immediately after purchasing a home, or after a time when part of the loan is repaid.

List of documents

When visiting a notary, you must provide the following documents and their copies:

• identification;
• title documents for the apartment.

There is no need to provide the mortgage agreement to the notary.

Expenses

When preparing a document, you must pay a state fee of 100 rubles. for its notarization (Article 333.24 of the Tax Code of the Russian Federation). If the will is closed, then you will need to pay 300 rubles for its reading by a notary.

Questions from our readers

Can an heir refuse a mortgaged apartment?
The testator may choose one or more legal successors. New owners have the right to refuse their part if they do not want to take on debt obligations. In this case, the share of the real estate will become the property of the bank. When all the heirs do not want to take on obligations, the financial institution takes the entire apartment and sells it at auction. If the proceeds are not enough to pay off the debt, then the remaining portion is written off by the bank.

In accordance with Art. 1157 of the Civil Code of the Russian Federation, a refusal can be issued either in favor of someone else specified in the will, or without specifying a specific person. It is impossible not to accept only part of the inheritance.

To formalize the refusal, you must submit a corresponding application to the notary’s office where the inheritance case has been opened. A citizen may not accept an inheritance if he does not contact an official within months. If the notary has information about the place of residence or work of the heirs indicated in the last will, then he will have to notify them about the will.

Is it possible to challenge a will?

Of course, such a right is also revealed among Russian citizens. However, such a statement of claim should be filed in court at least by the alleged copyright holders, and not just by third parties who cannot prove any connection (friendship, love, family) with the testator. In addition, the issue of distribution of inheritance when identifying the share for compulsory heirs is relevant.

In the latter case, the court will take into account the order of disposition of the apartment transferred by will up to this point: whether the testamentary or obligatory heir used it, and how (whether this disposition serves as his only source of income). Based on the results of such an assessment, the judge may decide to reduce the obligatory share or completely abolish it in order to reserve the right for the person called by the will.

In addition, grounds for the invalidity of a will may be identified:

• a will contested in court;
• an insignificant will, the status of which is determined without judicial assessment.

In order to challenge a will, it must come into force (after the death of the testator). The plaintiff has the right to act as a person whose interests were not taken into account or violated by force of the document that came into force. Frivolous spelling errors cannot be grounds for invalidating it. It is allowed to invalidate part of the text.

Underwater rocks

Citizens should consider the following nuances:

1. Relatives who disagree with the last will of the testator have the right to challenge the will. The procedure is carried out through the court and only if there are compelling reasons, for example, doubts about the legal capacity or mental state of the testator. Therefore, when drawing up a document, it is recommended to provide the notary with a certificate from a psychiatrist.
2. If spouses are planning a divorce, they must first divide their marital property. Each of them can only bequeath their share in the property.
3. Not only relatives, but also other interested parties have the right to file a lawsuit regarding the invalidity of a document. The grounds may include violations of the form and procedure for authenticating the document, illegal actions against the testator by the heirs.
4. If the will does not indicate relatives, then this cannot be a basis for challenging it. Dependents and minors must receive a mandatory share. The owner can dispose of the rest of the apartment at his own discretion.

How to avoid contesting a will

To prevent interested parties from challenging the will, it is necessary to provide the notary with a certificate of mental health.

In case the heir is recognized as unworthy (this is possible under Article 1117 of the Civil Code of the Russian Federation if he intentionally commits illegal actions against the owner of the apartment or other legal successors), an heir should be appointed.

Before signing, it is important to check the document for errors in the data and address of the property being inherited.

The owner of an apartment with a mortgage has the right to leave it to descendants or close people who are not relatives, taking advantage of the opportunity to draw up a will. The bank may indicate in the agreement that the borrower does not have the right to transfer the mortgage by will, but knowing the laws, this clause is easy to challenge.

When thinking about who to leave an inheritance to, do not forget that loan debts are part of the property, and by accepting a mortgaged apartment, the heir receives an encumbrance. The lawyers of the ros-nasledstvo.ru portal will tell you how to draw up a will without infringing on the rights of potential successors or burdening them with an unbearable burden.

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The legislation answers positively the question of whether it is possible to write a will for an apartment with a mortgage. Mortgage real estate is not seized and is transferred as ownership to third parties in various ways.

Among the latter is not only a will, but also, for example, a sale. The benefits of fully accepting an inheritance with debts are relative.

Often, heirs are interested in receiving compensation for the apartment upon its sale and the subsequent closure of the mortgage.

1. What does a will provide?
2. Is it possible to bequeath a mortgaged apartment?
3. How to draw up a will for an apartment with a mortgage
4. Procedure
5. Documentation
6. Expenses
7. Sample will
8. If there are children
9. Mandatory heirs
10. Alienation of part of the mortgaged property
11. Is it possible to challenge a will?
12. Refusal of inheritance