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In process of growth and economy complication more and more difficult there are also affairs about the inheritance. Sometimes they even get the international character. Often, for example, happens that the nominal proprietor of actions of the Russian enterprise which you want to leave to children, the foreign company is. Or, let us assume, you have decided to bequeath to successors foreign real estate. For streamlining of transfer of the inheritance without the aid of the qualified lawyer not to manage any more.
the Introduction into the inheritance the Most important question which arises at successors: where it is necessary to address to receive the certificate on the right to the inheritance in the form of foreign property?
to answer this question, it is necessary to be defined first of all with a place of opening of the inheritance. According to the Russian legislation a place of opening of the inheritance is last residence nasledodatelja, that is a place where nasledodatel constantly or mainly lived to the death.
unfortunately to establish last residence nasledodatelja not always happens easily. It is important to define not easier fact of registration nasledodatelja to the certain address, namely an actual residence of the person which depends on duration of its residing in this or that place, its communications with a social environment, a legal status in the country and other circumstances.
a place of opening of the inheritance after death of citizens of the Russian Federations which temporarily living abroad and have died there, is their constant residence in the Russian Federation before trip abroad. Hence, for reception of the certificate on the right to the inheritance successors should address to the Russian notary.
the Place of opening of the inheritance for citizens of the Russian Federations constantly living abroad, is that country where they lived to death. Pravoustanavlivajushchie documents on the inheritance in this case stand out competent body of such country or if it is supposed by the foreign legislation and conditions of the international agreements of the Russian Federation, consular establishments of the Russian Federation.
we will assume that certain nasledodatel - the Russian citizen constantly living and registered in a residence in Moscow and possessing property in territory of France, Germany and Belgium, has died in Paris during biennial official journey. The place of opening of the inheritance will be in such situation in territory of Russia - successors for reception of the certificate on the right to the inheritance need to address to the Russian notary in a residence nasledodatelja in Moscow. If in a similar situation nasledodatel it would be registered in Moscow, but would live in France on the basis of constant residence permit to successors followed address to the French notary.
it is necessary to remember that the Russian consulates can take considerable part in hereditary affairs. Depending on conditions of the international agreements concluded by Russia and requirements of the foreign legislation the consulate can be allocated by powers on representation of interests of successors, acceptance of guarding measures, transfer and the order hereditary property.
For example, under the consular conventions concluded between Russia and Great Britain, the USA, Japan and many other countries if the Russian citizen applies for a share in the property left in the given countries the died person of any citizenship the consular official is allocated with the right to represent interests of such citizen in the same measure as though it has given out to the consular official in appropriate way the issued power of attorney. However, given rule is applied only in the event that the Russian citizen or its authorised representative is not present at the given countries.
in Bulgaria necessary measures on protection and management of hereditary property after death of the citizen of the Russian Federation are accepted by competent establishments of Bulgaria. However on request of consulate of the Russian Federation they are obliged to transfer it a hereditary personal estate and documents of the died. In Belgium and Greece the consular official can address to the competent authorities with the request to take measures on protection and management of the hereditary property left in these states the Russian citizen or the Russian citizen, and also to notify him on such measures in a case when they are already accepted by them.
we will underline that rules of definition of a place of opening of the inheritance are applicable not only to the Russian citizens. For example, if the foreigner constantly lives in Russia on the basis of residence permit Russia will be a place of opening of the inheritance after his death. That is relatives of the foreign citizen for reception pravoustanavlivajushchih documents should address to the Russian notary.
we will notice that notaries never recommend to make out in Russia laws of succession concerning the real estate which is abroad. And all because the rights to real estate are subject to registration in the country of its site more often. Therefore in each specific case the question on procedure of registration of laws of succession should be solved taking into account the available information on a kind and the location of hereditary property.
applicable law definition At registration of the inheritance to successors is important for finding out, it will be right what country to be applied to relations on inheritance of the property which is abroad. According to an applicable law the circle of successors also will be defined, questions on the rights to an obligatory share in the inheritance, about laws of succession of the worried spouse are solved, about procedure of the introduction into the inheritance and etc. Many Russian citizens will be unpleasantly surprised, having learnt, for example, that in the USA there is no special right to an obligatory share in the inheritance, and in the Muslim countries the successor of a male receives a double share of the inheritance in comparison with successors - women. In Switzerland and Germany besides wills there are so-called contracts about inheritance, and in Great Britain there is no direct transfer of hereditary property to successors: the right to the inheritance passes to them under judicial control.
According to the Russian legislation of the relation on personal estate inheritance are defined by the right of the country where nasledodatel had last residence. Real estate inheritance is defined by the right of the country where there is this property.
for example if after death of the Russian citizen constantly living in France, there was an inheritance in the form of a personal estate and the apartments which are in Paris and Moscow inheritance of all personal estate and apartment in Paris will be subordinated to norms of the French right, and apartment inheritance in Moscow - to requirements of the Russian legislation. If nasledodatel constantly lived in Russia apartment inheritance in Paris would be carried out on norms of the French right, and all other property - under the Russian legislation.
however rules of a choice of the right no means always can be put easily into practice. After all in each country the rules of inheritance of property, and they can contradict what are established in Russia. For example, according to the legislation of Switzerland inheritance after the person constantly living in Switzerland, submits to the Swiss right, thus the kind and the location of property of value have no. Sometimes such contradictions between legislations of the different countries can complicate considerably life both successors, and the persons, authorised to grant certificates on the right to the inheritance. In this connection many countries aspire to solve hereditary questions at level of the international agreements on legal aid. Now such agreements are concluded by Russia with Bulgaria, Hungary, Romania, Poland, the CIS countries, Greece, Egypt, etc.
For example, the international contracts concluded by Russia with Poland, Hungary and Bulgaria, provide an exception of the general rule of inheritance of a personal estate: such inheritance, according to the contract, is regulated by the country legislation which citizen was nasledodatel at the moment of death. Such order can be much more convenient for successors as they should not find out and prove last residence nasledodatelja which as it was already told, can and not coincide neither with its citizenship, nor with a death place.
in a case when the certificate on the right to the inheritance stands out the Russian notary with application of the foreign legislation, it is necessary for successors to consider that norms of the foreign right not always are certainly applied in the Russian territory. Consequences of their application should not contradict law and order bases (a public order) the Russian Federation. In practice it means that the Russian notary, granting the certificate on the right to the inheritance, should not to be guided, for example, by the discriminating norms of the Muslim right establishing hereditary privileges owing to a seniority or an accessory to a male.
the will concerning foreign property In the majority of the countries the priority in inheritance questions is given to will nasledodatelja, expressed in the will. Therefore even if you do not expect difficulties with section of the inheritance which have remained after you between your successors, it is better to make the will. Unfortunately, article volume does not allow to tell more in detail about specificity of disputes on inheritance of the property which is in several countries, however it is necessary to notice that in the presence of the will such enough difficult and consequently zatratnyh disputes will be less. Certainly, for successors under the will priority value at registration of the rights has definition of that, such will is how much correct from the legal point of view is made. So, in the different countries on - to a miscellaneous the will form can be defined. In the majority of the countries the will should be made in writing and certified in a certain order, for example at the notary. However in some countries will drawing up in so-called olograficheskoj to the form (that is nasledodatel can write it with own hand) is supposed, and will certificates thus it is not required.
According to the Russian legislation ability of the person to drawing up and will cancellation, including concerning real estate, and also the form of such will are defined by the right of the country where the testator took place a residence at the moment of drawing up of such will. At the same time the will will be valid and in the event that its form meets requirements of the right of a place of drawing up of the will or requirements of the Russian right. We will notice that similar rules are provided in many international agreements concluded by Russia.
thus, considering value of will nasledodatelja under the order its property, at the international level concerning will drawing up rather loyal requirements are established.
for the decision of a question on the foreign inheritance the knowledge and correct application of norms both Russian, and the foreign right are required. Therefore at occurrence of problems as nasledodatelju, and subsequently it is better to successors to solve them together with skilled lawyers.
NATALIA OLEJNIKOVA, the lawyer of Bar of a city of Moscow “ Barshchevsky and partners “