Buying an apartment by inheritance in some cases can be associated with rather problematic situations. They are usually associated in one form or another with violations of the rules of inheritance. When conducting a purchase transaction, you need to be very attentive to the various circumstances surrounding it. If you are purchasing an apartment received as an inheritance, what should you know? When questions arise, it makes sense to clarify the answers to them in order to make informed decisions during the real estate purchase process. It would be a smart step to collect as much information as possible on the history of transactions with this apartment.

The transfer of property from testator to heir occurs according to certain rules.

In short, there are two main ways to do this:

• transfer of an apartment received by inheritance according to a will;
• transfer of inherited property according to law.

In the first case, we are talking about a document drawn up in advance, which describes in detail which inheritors will receive what. In the second case, the decision is based on the degree of relationship between the testator and the recipients of the property. All possible variants of family ties are divided, relatively speaking, into several groups. They are called kinship queues. The first of them includes the closest relatives, the second - less close ones, and so on.

No more than eight lines of kinship are usually considered, but in rare cases there may be more.

First and foremost, for example, are spouses, children and parents. The distribution principle is very simple. If there are one or more first-degree relatives, then all property is divided equally between them. If there are none of them, but there are relatives of the second stage, the inheritance is divided equally between them. Other queues are treated in a similar way.

Despite the fairly simple principle of inheritance, some problematic situations can occur. As is known, when transferring an inheritance, a notary is not obliged to conduct a thorough investigation and reliably determine the existence of relatives of varying degrees of kinship.

It is usually believed that within six months after the death of the testator, all interested parties will themselves announce their existence.

After this, the notary will only have to distribute the inheritance in accordance with the general principles:

1. Let's assume that one of the first-line heirs dies within six months after the death of this testator. What will happen to his share? The law clearly answers this question. It will be distributed among his heirs in accordance with existing rules.
2. Suppose the heir does not show up for six months. Has he lost his share of the inheritance? Depends on the specific situation. If he proves that he did not have the opportunity to declare his rights, then through the court the distribution of the inheritance will be reviewed and he will receive the part due to him. If he cannot justify his absence, then no changes will occur.
3. There are those who receive an obligatory share of the inherited property. These are minor children, dependents and some other categories of citizens. Initially, they are allocated the share prescribed by law, then from the remaining part the property is distributed by law or by will.
4. If there is a will, but it does not concern the entire property, but only some part of it, then in this case the heirs under the will are first satisfied, then the distribution takes place in accordance with the law, based on the order of kinship.
5. In some cases, inheritance is not limited to the transfer of property, but also includes certain obligations. These may include, in particular, debts. Also, for example, an apartment can be inherited with the condition that someone close to the testator will live in it for life.

Thus, it is clear that rather ambiguous situations may well be associated with inheritance.

If you are selling an apartment that was inherited, it is quite possible in some cases to expect unexpected situations.

So, the apartment received as an inheritance is purchased in accordance with the purchase and sale agreement. Let’s assume that everything is completed correctly, all the necessary signatures and seals have been affixed, all registrations have been completed, and the money has been paid in full. Is this enough to recognize the purchased property as yours, without fear of any complications in the future or challenging the sale? At first glance, everything looks quite reliable and final, but in reality a lot can still happen, complicating the future life for the buyer.

Some examples of such situations:

1. The relationship between the deceased and his wife did not work out, so they separated. We lived separately for several years, but for some reason did not think about an official divorce. At the time of death, they were not divorced, and the husband did not leave a will. When inheriting by law, the wife will come first and will have the right to claim her due share of the inheritance. If she herself did not come to the notary within six months after her husband’s death, then the distribution of the inheritance took place without her participation. If she then applies to the court to review the distribution, then in some cases he may take her side and reconsider everything. Thus, during the revision, the seller of the apartment may not become the owner of the apartment being sold and, thus, the purchase and sale agreement will become invalid.
2. One of the heirs suddenly died. His heirs receive the right to divide among themselves the share of the inheritance due to him. If they did not participate in the process of its distribution, then they can, by right of representation, receive the part to which they are entitled. This can be done even after a year has passed after the death of the testator.
3. Sometimes things can turn out quite complicated. One of these cases arises when a will was once written and executed in accordance with the requirements of the law, but it happened quite a long time ago and everyone forgot about it. After the death of the testator, no one remembered this document, so the property was distributed among the heirs according to the law. After some time, the will is discovered. Now everything that the heirs received will be reviewed. And if one of them sold the apartment, such a purchase and sale transaction will be invalid.

Even the most careful and correct registration of the sale of an apartment does not guarantee the buyer a peaceful use of the new home.

In inheritance law there are quite high chances of encountering complex and unusual situations. In what cases can this happen?

1. If a possible claimant for the inheritance is outside the country and cannot show up to receive the inheritance within six months, then it can easily happen that he shows up later, when everyone is already sure that the distribution of the inheritance has taken place in full. A similar situation will arise if the potential heir was imprisoned by a court verdict or was on a long business trip. In order to be sure that such situations will not happen, you need to carefully study all available information about the testator. But it is not always possible to do this thoroughly enough.
2. It happens that the distribution of the inheritance occurred without the participation of the disabled parents of the deceased or his minor children. All of them belong to the category of heirs who are guaranteed by law a certain share of the inherited property during distribution. If they did not receive what was due to them on time, then they subsequently have the right to go to court and insist on a redistribution of the inheritance. If, among other things, the inheritance included an apartment that had already been sold subsequently, then their share would be in it.
3. There is such a thing as an unworthy heir. In some cases, the recipient of an inheritance loses the right to receive it. If by that time he has already sold the apartment, then the transaction becomes invalid. If he managed to spend all the money received, he is unlikely to be able to return it to the buyer.
4. A trap is possible if the buyer of the apartment does not show due vigilance. Sometimes the contract does not indicate the amount that was actually paid for the apartment, citing various reasons. If the transaction is cancelled, the refund will not be the amount that was paid, but the amount specified in the contract, which is much less than the real one. This situation often arises in connection with certain tax benefits. As you know, an amount of one million rubles can be exempt from tax payments, and a large price will lead to payment of tax in a fairly significant amount. This is the case if it has been owned for less than 3 years. Sometimes some buyers meet halfway, hoping that no problems will arise in the end. Perhaps sometimes this is the case, however, if the purchase of an apartment becomes invalid, according to the law, the amount that will be returned to the buyer will be determined by the text of the contract.
5. It is possible to formulate a will in such a way that it is called a testamentary refusal. Applied to the issue at hand here, it might look like this. The apartment is bequeathed to the heir provided that a certain person lives in it for life. After completion of the transaction, the buyer will receive not only an apartment, but also an additional tenant.

As you can easily see, when purchasing a hereditary apartment that was received as an inheritance, it is not so difficult to encounter unforeseen problems. What to do to avoid them? This issue will be discussed a little later, but for now it is necessary to point out some possible problems of a different kind.

In addition to natural problems, there is deliberate deception (fraud), as well as other situations close to it. In order to avoid them, it is important to know about their varieties.

The most common crime in this area.

1. Forgery of a will. In order to verify its authenticity, it is enough to contact a notary with such a problem.
2. Another area is fake documents about certain transactions. The point is that before his death, the testator donated his apartment to a third party, who sold the apartment. Naturally, such a sale would be illegal.
3. Another fraud scheme is very similar to the previous option. In this case, shortly before death, a certain young man appears who takes care of the old man. In gratitude, he draws up a general power of attorney from the notary. After the death of the old man, on the basis of a power of attorney, the apartment is sold before the expiration of six months and the distribution of the inheritance in accordance with the requirements of the law. The fraudster disappears, and the illegally purchased apartment remains with the buyer, who will actually have to deal with the consequences. The acquisition will cost him a pretty penny. Moreover, if such a transaction is canceled, the money is unlikely to be returned, since the seller will probably be quite difficult to find.

In order to avoid getting into such situations, you need not only to be very careful, but also to know what and how to do in order to ensure that you can buy an apartment normally.

First you need to pay attention to whether there are any suspicious circumstances. What makes sense to pay attention to? How to check your suspicions?

1. One of the situations that raises suspicions is that sometimes some heirs refuse to receive an inheritance in favor of others. This suggests that the situation around the apartment you are looking for may turn out to be opaque. Before you make a deal, you need to understand and understand why this is happening.
2. When selling, you can find out the approximate price of an apartment with the same characteristics as the one you plan to buy. If the latter costs much less, it is suspicious. It is advisable to clarify for yourself why the discount is given.
3. Conducting a transaction by proxy also has its own risks. Firstly, this document may simply turn out to be false. Secondly, you need to remember that the one who issued the power of attorney can revoke it at any time.

   If the apartment was purchased from the seller’s representative under a power of attorney, after its cancellation the transaction will become invalid.

4. Sometimes an illegally obtained apartment is sold a large number of times. This is done for two main purposes. On the one hand, a large number of real estate sales can somewhat confuse the tracks and reduce risks. On the other hand, scammers naively assume that multiple resales can turn a fraudulent transaction into a bona fide one. If, when purchasing an apartment, you check its history using information from the Unified Register, you will be able to see a list of transactions with it and try to find out the reason, if there are many of them.

Now briefly about precautions that will make the purchase of real estate more reliable.

1. You should never underestimate the cost of the transaction in the contract. There is no need to do this even in a situation where the seller very persistently asks for it. If new heirs unexpectedly appear in some way (and this is quite possible), the compensation will be exactly what is specified in the contract. If there were additional payments, no one will return them. When purchasing an apartment that has been owned for less than 3 years, this situation is especially common.
2. It is possible to resort to title insurance. Its essence, as applied to the situation under consideration, is as follows. If the purchase of real estate does not take place for any reason, the buyer will receive the payment specified in the insurance contract.
3. One of the problems may be the seller's capacity. It may turn out that the transaction for the sale of an apartment will be carried out by a person who is incapacitated for one reason or another. As a result, such a sale may be challenged in court. To check the legal capacity of a given citizen, it is enough to contact a psychoneurological dispensary at his place of residence. An easier option would be to simply look at his driver's license.
4. The safest way to carry out the calculation is to transfer money through a safe deposit box and in no way can this be done in advance until the registration of the purchased property received by inheritance has been completed. This will help reduce the risk of fraud.

When purchasing an apartment that was inherited, you need to be careful and pay close attention to any features of the transaction being concluded.

This is vital for the transaction to go smoothly. The limitation period does not exceed three years. After this period, such problems are unlikely to arise.

Buying an apartment is a responsible, long-awaited event for many, and it should not be carried out spontaneously or thoughtlessly. This is especially true for the acquisition of inherited living space, the history of which can be rich not only with interesting facts, but also with unresolved inheritance disputes, debts and deferred claims of belated heirs.

But is it worth refusing to buy a home you like just because it was received by the owner by inheritance? There is no single correct answer to this question. The decision depends on the circumstances surrounding each specific situation. But in any case, it should be based on a careful study of the documentation and taking into account the potential risks typical for such transactions.

Briefly about inheritance law

Awareness of the order of inheritance will help the future buyer to correctly assess the risks:

• After the death of the testator, his property passes to the heirs on one of two grounds - by law or by will.
• By law, only relatives or family members of the deceased owner, who are called upon to inherit in turn, can take possession of an apartment.
• In total, the law provides for eight stages and, if the first for some reason did not accept the right to property, then this opportunity passes to the second and so on.
• If the testator is not satisfied with the established distribution of property, he can leave instructions regarding the future owners of the apartment.
• According to a will, living space can go to any person or organization, regardless of their relationship with the deceased.
• The previous owner of the apartment has the right to order the appointment of a testamentary refusal. As a result of its completion, the specified person gets the opportunity to live in the apartment for a certain period of time or for life, and this right is retained by the legatee even in the event of the sale of the living space.
• A will cannot revoke the right to an obligatory share that disabled close relatives and dependents of the deceased have.
• The period established for entering into inheritance is 6 months.
• The legislation provides for the possibility of accepting inherited property after the specified period if there are good reasons for missing it.
• The heir may be declared unworthy even after he has received a certificate of right to inheritance.
• The owner of the apartment has the right to draw up several wills, but only the last one will have legal force, in full or in separate contradictory provisions.

Inheritance law is regulated by Chapter V of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation).

Risks of buying an apartment by inheritance less than 3 years old

Based on the above, we can identify the main risks facing the purchaser of an inherited apartment:

1. A few years after the purchase, heirs who have not accepted the rights to housing within 6 months may appear and file.
2. A similar situation threatens to happen to the legal holders of the compulsory share who did not learn about the opening of the inheritance in a timely manner.
3. Unscrupulous sellers may try to hide the existence of orders from the deceased owner regarding the legatee who has the right to reside in the apartment.
4. There is a possibility that the heir to the apartment will be recognized as unworthy after its sale.
5. When registering, the marital share was not allocated from the inheritance.
6. The will may be declared invalid.

The occurrence of at least one of the listed circumstances may entail unpleasant consequences for the new owner of the living space, including challenging his ownership of the purchased apartment.

During the first three years after the opening of the inheritance (death of the previous home owner), the risks accompanying the purchase and sale transaction are the highest. This is explained by the existence of statutory deadlines for accepting an inheritance, testamentary refusal, and also a statute of limitations.

The most “dangerous” is the first year after the seller receives the inheritance. The process of succession and registration of housing may extend over this period even for punctual heirs. The main reasons for this: restoration of lost documents, litigation on the division of property, ignorance of the death of the heir due to departure or illness. But even after 12 months, the risks remain relevant, although as they move away from the critical period, the likelihood of their materialization decreases.

Risks when buying an apartment by inheritance for more than 3 years

Focusing on judicial practice in inheritance cases, experts note a reduction in the described risks in cases of purchasing real estate inherited more than 3 years ago. This is exactly what it amounts to according to Art. 196 of the Civil Code of the Russian Federation. The beginning of its course is considered to be the moment when the plaintiff learned about the offense or the circumstances preventing entry into the inheritance no longer exist.

The three-year period also includes the ability of the legatee to apply for a material benefit or service provided at the expense of the apartment.

The deadline for filing a claim for the award of inherited housing or challenging the ownership of it is 10 years after the death of the testator or the commission of an unlawful act that is the cause of the claim. And this moment practically equalizes the probability of losing the purchased living space, which was inherited less than 3 years ago or more.

But in any case, purchasing an apartment 1-3 years after its inheritance significantly reduces the likelihood of unpleasant surprises from its potential owners.

Risks under a will

Special mention should be made of the troubles that threaten the buyer of an apartment inherited by will.

Some people are confident (mainly due to the assurances of unscrupulous or insufficiently knowledgeable sellers in inheritance matters) that a will provides high guarantees to the purchaser of inherited property. On the one hand, this is true. Some wills narrow the circle of possible successors, distribute the inheritance among designated persons, significantly reducing the time required to register property and eliminating the cause for inheritance disputes.

The act of last will of the previous owner of the property does not always contain clear instructions regarding the heirs and the amount of shares due to them. Sometimes its subject is only the exclusion of certain persons from the circle of legal successors or other orders that are not essential for the buyer. Thus, the presence of a will does not increase the reliability of the transaction, but, as practice shows, on the contrary, it gives additional reason to doubt the purchase of inherited real estate.

Risks of purchasing a bequeathed apartment:

1. Contestability of a will. An act of posthumous expression of will of a citizen may be declared invalid* in court at the initiative of any successor from the current line of inheritance by law.
2. Availability of additional orders of the testator. The most unpleasant thing for a new owner of a living space is a testamentary refusal. It is expressed in granting a certain person the right to reside in an inherited apartment for a certain period of time or for life. Moreover, this right is not canceled upon alienation of property, that is, the new owner may have an unwanted neighbor in the purchased housing.
3. The existence of legal holders of an obligatory share of inheritance. This category of successors cannot be deprived of inherited property even by will - they have the right to claim half of what they could have received by law in any case (unless they are declared unworthy heirs). These may be disabled father, mother, spouse, children and dependents of the testator who, for good reasons, were unable to timely declare their rights to the apartment.

* - a will is invalid if the testator at the time of its preparation:

• was deprived of legal capacity;
• was in a state of short-term loss of the sense of reality of what was happening (due to intoxication with chemicals, severe stress, affect);
• was under psychological and/or physical pressure.

Among the risks that are practically impossible for a potential buyer to analyze is the possibility of recognizing the heir as unworthy. Even a successor who was appointed by the testator himself may be deprived of his rights; according to the law, he does not have any advantages over the successor.

The grounds for declaring an heir unworthy may be as follows:

• incriminating him of illegal actions in relation to the testator, his expression of will, as well as other heirs in order to increase the inherited profit;
• failure to fulfill alimony obligations in relation to the now deceased (in cases established by law).

Fraudulent schemes

An unscrupulous seller can use some tricks to pull off a fraudulent scheme, as a result of which the buyer will be left at a severe disadvantage or even lose money without receiving anything in return.

Example."Concealment of legatees." According to the will, the beneficiary, along with the apartment, also inherited its resident - a friend of the deceased, who has the right to live in the living space for life. By prior agreement with the latter, the successor put the apartment up for sale, and the legatee postponed the registration of his right until the end of the established period (3 years from the date of death of the testator).

The heir sells the apartment and a year later the new owner receives a legatee indicating the registered right of residence in the apartment. He demands a significant amount of compensation from the acquirers, and after refusal, he legally moves in with them. The inconvenience caused by the tenant forces the owners to pay him for a notarized waiver of the rights to reside in the living space.

Example."Cancellation of power of attorney." The owner of the home issues a power of attorney to sell it to a friend, who then acts on his behalf. When buyers ask questions about the owner of the apartment, the representative informs about his urgent departure abroad. Trusting purchasers sign a purchase and sale agreement and transfer money to the attacker. Immediately after this, the real owner of the living space revokes the power of attorney, and the entire transaction is considered invalid due to the lack of authority of the representative.

Example."Conspiracy with the heir." The situation unfolds according to a scheme similar to an agreement with the legatee, who in this case is replaced by the priority heir or the legal holder of the compulsory share.

One of the priority successors registers the living space in his own name and after 3 years finds buyers for it. At this time, the accomplice, under the cover of good reasons, allegedly does not know about the opening of the inheritance, and several years later appears in court to restore inheritance rights in court. And, since the statute of limitations begins to count only from the moment when the testator learned or should have learned about the death of the testator, he achieves success in court.

With a court decision to restore the deadline for accepting the inheritance, the fraudster formalizes his part of the apartment and makes demands for payment of compensation to the new owner of the inherited living space. According to the attackers, buyers had to pay for the apartment twice. But timely contacting a lawyer saved them from unnecessary expenses. The specialist explained to them the position of the law regarding the rights of a bona fide purchaser, according to which all property claims of the emerging heir must be directed to the seller.

Example."Black realtor." Not only buyers, but also homeowners risk becoming victims of this scheme. Only the last two consequences are much more deplorable. Criminals, the so-called black realtors, fraudulently, under the influence of physical or moral pressure, force the testator to bequeath an apartment to them, and then kill him. The received inheritance is registered and then sold by them according to all the rules.

The consequences of an illegal transaction for buyers occur if the legal successors of the deceased owner of the apartment have doubts. If they can prove a criminal act against a relative, the sale transaction will be invalidated due to the lack of legal force of the will.

Is it worth buying an apartment received as an inheritance?

The decision to purchase inherited living space should be made taking into account all existing risks and you should think twice if:

1. Less than three years have passed since the death of the previous owner (this clause does not exclude the possibility of challenging the transaction due to circumstances unforeseen for the buyer and seller, but significantly reduces the risks associated with the latter’s dishonesty).
2. There is no personal contact with the property owner. This is an extremely alarming circumstance, especially considering the unreliable legal status of the power of attorney under which the intermediary will carry out the sale.
3. The heir did not have time to deregister the previously living persons, including himself, from the registration of the living space.
4. An elderly seller (over 70 years old) refuses to provide a certificate of his own legal capacity (a common reason for cancellation of transactions is the presence of senile dementia on one of the parties, which completely or partially deprives the patient of legal capacity).
5. The owner of the apartment refuses to provide the potential purchaser with documents that can confirm the transparency of the agreement.

In other cases, the buyer can consider the recommendations below and, in the complete absence of suspicions regarding the documents and the good faith of the seller, decide to draw up a purchase and sale agreement. After all, many of the apartments for sale are inherited and it is not always advisable to refuse the desired option without clear grounds.

How to safely complete a transaction

The rights of the new owner of the living space are protected by the Decree of the Constitutional Court of the Russian Federation dated April 21, 2003. According to its instructions, a person who considers himself the owner of a sold item does not have the right to reclaim it from a bona fide buyer. And paragraph 42 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 29, 2012 No. 9 “On judicial practice in inheritance cases” states that if the inheritance is accepted after 6 months, the successor can only count on monetary compensation from the seller of the apartment.

The main task of the buyer in this case is to ensure the status of a bona fide one, that is:

1. Purchase real estate for a fee.
2. Be sure that the property was sold if the seller had the authority to do so.

In accordance with the second point, you can protect yourself from an unsuccessful purchase by following the following instructions:

1. Ask the owner for title deeds for housing, an extract from the Unified State Register of Real Estate, a house register and a passport.
2. Carefully check the documents for authenticity and consistency with each other.
3. Study information about the number of residents registered in a given living space and transactions carried out with its participation.
4. Review the certificate confirming the absence of debt obligations on the purchased property.
5. Find out about the basis on which the seller received ownership of the apartment (if by will, then ask to provide the document).
6. Examine the contents of the will for the presence of instructions regarding testamentary refusal.
7. Make sure that the purchase and sale agreement contains a reliable and current price for housing.*

* - a very important nuance that warns against indicating an undervalued value in the document: in addition to reducing the seller’s expenses, this entails possible financial losses for the buyer if the transaction is terminated.

A transaction through a representative requires careful verification of the power of attorney and the apartment owner’s awareness of it. In addition, you should protect yourself in case the owner decides to revoke the legal force of the power of attorney immediately after payment.

As for the moment of payment, you can adopt several methods of transferring the agreed amount to the seller:

1. Immediately after signing the purchase and sale agreement. It is recommended to do this in front of witnesses, requesting a receipt from the seller about the amount of funds received by him (include the passport details of the parties to the transaction and the signatures of witnesses in the receipt).
2. By placing it in a bank cell. The buyer places the money for the apartment in a specialized bank safe and orders the release of funds to the seller only if there is a certificate of registration of the apartment in the name of the buyer.

And it is important to understand that even if all precautions are taken, it is impossible to achieve a 100% guarantee of safety when purchasing an inherited living space, but you can increase it to the maximum with the help of an experienced lawyer.

Step-by-step instructions for buying an apartment received by inheritance

After completing the steps indicated here (see “How to securely complete a transaction”), the acquirer should adhere to the following action plan:

1. Agree with the seller on the place and time of the transaction.
2. Select a payment method and notify the apartment owner about it.
3. To make an agreement.*
4. Place the money in a safe deposit box (if you choose this payment method) or find witnesses who can confirm cash payment “from hand to hand”.
5. Together with the seller, go to the selected notary at the location of the apartment (the only possible way to certify the transaction for the alienation of an apartment after amendments to Article 42 of Federal Law No. 218-FZ).
6. Pay the state fee (0.5% of the cost of the apartment, but within the range of 300–20,000 rubles, according to clause 5, clause 1, article 333.24 of the Tax Code of the Russian Federation) and notary services of a legal and technical nature (established by the notary chamber of the subject).
7. Sign the contract.
8. Make a settlement with the seller.
9. With a notarized agreement, go to the nearest Rosreestr office or branch of a multifunctional center to register the transfer of ownership.

* - the purchase and sale agreement must contain:

• technical characteristics of the living space;
• data on the location of the apartment;
• transaction price;
• the date of entry into force of the agreement;
• distribution of transaction costs;
• details of the parties.

When completing a transaction, the seller must provide the following documents:

• passport;
• certificate of inheritance;
• extract from the unified state register of real estate;
• explication;
• floor plan.

The buyer only needs a passport.

It is possible and necessary to get around the rough edges when buying inherited real estate, especially if this apartment is exactly what you have been looking for for so long. But taking into account the magnitude of the risks, doing this yourself, without special knowledge, is extremely unreliable.

To sell an inherited apartment, you must first officially enter into inheritance, and then register ownership of the apartment. Only after completing these procedures can you begin to search for a buyer and collect the necessary documents.

For the sale of inherited residential premises owned by less than 3 years(if inherited after January 1, 2016 - less than 5 years), there is a need to pay income tax(NDFL). It should not be confused with the one that was previously charged after registering an inheritance in one’s own property (now cancelled). In addition, when selling real estate received as an inheritance, provisions are made tax benefits.

Before making a purchasing decision, the buyer should make sure:

• in absence;
• they are in stock.

After conclusion, such a transaction is subject to state registration in Rosreestr.

When can you sell an apartment after inheriting

You can sell an apartment passed on by inheritance immediately after receiving it. certificates of ownership- otherwise, such a transaction will be considered invalid. To do this, you need to contact Rosreestr with what you have already received from the notary, as well as the following documents:

• application for registration of property rights (to be filled out in Rosreestr when submitting documents);
• identification document of the heir (passport);
• cadastral passport for the apartment;
• receipt of payment of the state fee for registration in the amount of 2000 rub.

Attention

1. To do this, you must first notify in writing all participants in the common shared ownership of your desire to sell the part of the inherited apartment, indicating the price and other conditions of sale.
2. The refusal of all co-owners is recorded in writing.
3. If within a month from the date of receipt of the notice of sale, the participants in shared ownership have not confirmed their desire to purchase the share being sold, refusal is accepted automatically.

In case of violation of this procedure, any co-owner will have the right to file a statement of claim to court on the transfer of rights to purchase housing.

Information

In 2016, State Duma deputies from the LDPR faction a proposal was made about compulsory sale apartment inherited in shares. In this case, if within six months the heirs cannot independently decide on the sole owner or find a buyer, then the apartment will be subject to forced sale through an auction. The proceeds will be divided among the heirs in accordance with their shares.

According to deputies, such a measure will reduce the frequency of family disputes around inherited property and reduce the risks of fraud in situations where one of the heirs creates conditions unsuitable for other owners to live in in order to become the sole owner of residential premises.

Procedure for selling an apartment

Before selling an apartment received by inheritance, according to the civil legislation of the Russian Federation, the future seller must first go through state registration of property rights(Article 131 of the Civil Code of the Russian Federation) on the basis of what has already been received. After receiving a certificate of ownership of the apartment from the registration chamber, you can begin to search for a buyer and formalize the transaction under the purchase and sale agreement.

To sell an inherited apartment, you need to collect the following list of documents:

• contract of sale of an apartment;
• passports of persons participating in the transaction;
• documents from Rosreestr:
  • certificate of state registration of property rights;
  • an extract from the Unified State Register confirming the absence of arrests or encumbrances on the apartment;
• cadastral passport, apartment plan (to be ordered from the BTI);
• a certificate from the housing department confirming that there are no debts on utility bills;
• an extract from the house register (about the absence of registered persons in the apartment).

For your information

The consent of the spouse is not required in this case, since any property received by inheritance is not joint property of the spouses.

Before completing a transaction, the future buyer of such real estate should ask the seller about the availability of inherited property for the share. If such persons are found, it is advisable to obtain an official one from them before buying or selling.

Contract of sale

To sell an apartment, a deal is drawn up between the seller and the buyer contract of sale in simple written form.

• In this case, it is recommended to indicate in the text of the contract full market value of the apartment, including the previously paid deposit (if any). This is important due to the fact that if a controversial situation arises during the trial, the buyer will be able to claim only the amount that was specified in the purchase and sale agreement, and not some “actually paid” amount, the amount of which has yet to be proven in a court.
• Often, in order to avoid the need or reduce its size when selling an apartment that has been owned for less than 3 years, at the initiative of the seller, the cost of housing under the purchase and sale agreement indicated as underestimated up to an amount of 1 million rubles(when there is no need to pay income tax at all).

In order to increase tax fees from January 1, 2016 to real estate transactions at a price significantly different downward from its market price, the tax payable will be calculated not from the price specified in the sales contract, but based on cadastral value of the apartment(close to the market), multiplied by a reduction factor of 0.7.

Mandatory elements of the above agreement are:

• information about the parties to the transaction;
• cost of the apartment;
• information about the apartment (address, technical information corresponding to the cadastral passport);
• term and method of transfer of money.

After discussing all the conditions and resolving controversial issues, the contract is signed by both parties, and the transaction will be subject to state registration, being considered concluded from that moment.

Registration of the transaction in Rosreestr

After signing the purchase and sale agreement, it is mandatory submit an application to Rosreestr on state registration of the transaction. It can be submitted in person, sent by mail, through a lawyer, or through a multifunctional center (MFC).

In addition to the application to Rosreestr, the following are provided:

• passport of the seller and buyer;
• purchase and sale agreement and signed act of acceptance and transfer of the apartment;
• receipt of payment of state duty by the buyer in the amount of 2000 rubles.

State registration is carried out within 10 working days from the date of receipt of the application and the required documents (clause 3 of Article 13 of Federal Law No. 122-FZ of July 21, 1997). In some cases, registration may be suspended or cancelled.

​When selling any property, including inherited property, the former owner must pay income tax on the profit received. The occurrence of the obligation to pay tax on income received from the sale depends not on how it was obtained, but on how long the property was owned. Today we will give detailed explanations on the question: is it necessary to pay tax on the sale of an apartment if it was inherited?

Minimum period of ownership of property that exempts an individual from paying personal income tax

Until 2016, the period of ownership of property during which its owner was exempt from paying tax was three years.

With the onset of 2016, this period was increased to five years, with the exception of a number of cases in which the previous three-year period remained.

Thus, a tenure period of 3 years was left for the property:

• Ownership for which arose before January 1, 2016;
• Received by inheritance, privatization, lifelong maintenance agreement and as a gift.

For all other property the period is five years.

Thus, for an apartment received as an inheritance, the period is three years. If a citizen owned it for more than the specified period of time, he does not have to pay anything.

How to determine the tenure?

As a general rule, the term of ownership begins with the date of registration of ownership rights and ends with the date of entering information into the state register about the transfer of rights to another owner.

However, for inherited property the procedure is somewhat different, namely, The period of ownership of the inherited apartment begins to run from the moment of death of the testator and ends with making changes to the register related to the change of owner.

Thus, if the testator died, say, in 2016, and the ownership was registered only in 2020, then when selling the apartment in 2020, the heir will not pay anything from the income received.

Based on the above, it follows that when selling an apartment inherited, tax is payable, but only if the period of ownership of this housing is less than 3 years. Having decided whether it is necessary to pay tax on an inherited apartment, we will consider at what rate it is calculated and in what order it is paid.

Tax rate

• 13% for those citizens who live in Russia for more than 183 days in the year in which the apartment was sold;
• 30% for citizens who lived in the year of sale of property less than the period specified above.

Decrease in income

The income received from the sale can be reduced by a tax deduction in the amount of 1 million rubles.

Calculation example:

Soloviev L.B. In 2019, I inherited an apartment. In 2020, I sold it for RUB 4,652,369. Since the property was owned for less than three years, Soloviev must pay personal income tax to the budget on the income received. The amount payable to the budget will be RUB 604,808:

4 652 369 * 13%

If Soloviev decides to take advantage of the deduction, the amount of income payment payable to the budget will be equal to RUB 474,808:

(4 652 369 - 1 000 000) * 13%

Declaration on NFDL

If, upon the sale of inherited property, an obligation to pay tax on income arose, then this profit must be reflected in the tax return in Form 3-NDFL.

The specified document must be submitted to the tax authority no later than April 30 of the year following the year in which the property was sold and the income was received.

There are several ways to fill out the declaration:

A citizen can submit a declaration:

• Himself or through his representative (upon presentation of a notarized power of attorney);
• By mail (registered mail with a list of attachments);
• Via telecommunication channels with an electronic digital signature.

It should be noted that if the amount payable is zero (the deduction is greater than the income received), the declaration will still have to be submitted.

If the reporting is not submitted to the Federal Tax Service on time, the citizen will be fined in the amount of at least 1,000 rubles.

Paying tax

The tax must be paid to the budget no later than July 15 of the year following the income received.

Along with purchase and sale and donation, one of the most common grounds for acquiring real estate ownership is inheritance. By inheritance you can receive an apartment, house, cottage, land, or other real estate.

By entering into an inheritance, a citizen acquires ownership of real estate, which includes the right to use and dispose of it. In other words, he can perform any actions with it - sell, exchange, donate, bequeath

In this article we will consider such issues as the procedure for drawing up a purchase and sale agreement for an apartment received by inheritance, terms and procedures, a list of necessary documents, as well as the most pressing issue - the amount of tax and state duty.

Is it possible to sell an apartment that was inherited?

The law does not establish any restrictions on purchase and sale transactions with inherited real estate, however, there are some features that both the seller and the buyer must be aware of.

Real estate received by inheritance can be sold after all the necessary inheritance procedures have been completed and the necessary documents have been completed:

• Declare the right to inheritance, enter into it within 6 months from the date of opening and receive a Certificate of Inheritance;
• Register ownership of real estate and obtain an extract from the Unified State Register of Real Estate;
• Conclude a purchase and sale agreement;
• Pay tax.

When can you sell an apartment received as an inheritance?

You can sell an apartment received by inheritance six months after the death of the original owner. That is, after entering into inheritance rights and receiving a title document. Until this moment, the completed transaction will be invalid.

The law does not provide for any time limits for transactions. However, you need to keep in mind that:

• when selling inherited residential real estate during the first 3 years (the first 5 years - if the inheritance occurred after 01/01/2016), you will need to pay income tax;
• When selling residential real estate after 3 years (5 years) - after entering into an inheritance - you will not need to pay tax.

Registration of inheritance

On the day the owner of the property dies, the inheritance opens. What should the heirs do?

• Submit a written statement of intention to inherit to the notary;
• Provide the notary with documents such as a passport, death certificate of the apartment owner, a will or a document confirming family ties, registration and title documents for the apartment. You can read more about the documents in the article

It does not matter whether inheritance occurs by law or by will. Only six months after this, the heirs will receive a Certificate of Inheritance and will be able to formalize ownership and dispose of the inherited property at their discretion.

If the owners of the inherited real estate are several heirs, a Certificate is issued to each of them, indicating the share belonging to each.

After receiving the Certificate of Inheritance, you should contact Rosreestr to register the transfer of ownership of real estate from the testator to the heir. After this, it is possible to carry out any transactions - sale, donation, exchange of an apartment.

If there are several heirs, they will need to come to an agreement regarding the use and disposal of the purchased apartment - they can only enter into a purchase and sale transaction by agreement.

Selling an apartment

After a will or legal inheritance, after subsequent registration of property rights, the procedure for buying and selling an inherited apartment will be no different from the buying and selling of any other residential real estate.

Documentation

To sell an apartment you will need to prepare a package of documents:

1. passports of the parties to the transaction;
2. title document (Certificate of right to inheritance);
3. a document confirming ownership of the apartment (since 2016, this is an extract from the Unified State Register of Real Estate, which replaces the Certificate of Ownership);
4. technical passport for the apartment.
5. an extract from the Unified State Register of Real Estate confirming that there is no encumbrance (pledge, seizure) placed on the apartment;
6. certificates from utility organizations about the absence of debts;
7. certificate from the Department of Internal Affairs at the place of registration of the property.

If the seller has a husband or wife with whom a prenuptial agreement has been concluded, and the inherited property is joint and not personal property, the spouse’s written and notarized permission to sell the home will be required.

If a minor child was registered in the apartment, you will also need to obtain permission from the guardianship and trusteeship authority.

In some particularly difficult cases, if the buyer has a suspicion that other persons may claim the rights to the inherited apartment, a written refusal of the potential applicant can also be obtained and attached to the package of documents.

Contract of sale

A written purchase and sale agreement is concluded between the buyer and the seller, the mandatory terms of which are...

• basic information about the parties to the transaction (full name, date and place of birth, place of registration, passport details);
• the value of the subject of the transaction;
• information about the subject of the transaction (address, technical information corresponding to cadastral documentation);
• rights and obligations of the parties to the transaction;
• term and method of transfer of property and funds;
• liability of the parties for failure to comply with the terms of the contract;
• date of conclusion of the transaction;
• signatures of the parties.

In the process of concluding a transaction, all terms of a written contract must be discussed, all disputes that arise must be resolved and unconditional agreement must be reached. After checking all documents by a notary and reaching agreement between the parties, the agreement is signed and sealed with the seal and signature of the notary. The concluded sale and purchase transaction is subject to state registration.

Note! One of the most essential terms of an apartment purchase and sale agreement is the condition on its value. Very often, the seller deliberately indicates a lower price for the apartment - in order to reduce the amount of income tax, up to 1 million rubles - with the goal of not paying it at all. The actual, and not the “official” price of the apartment in such cases is negotiated orally between the seller and the buyer. What danger does such a decision pose? If a dispute arises, the buyer will not be able to prove that he transferred a much larger amount of money to the seller. Even if the dispute is considered by the court, the buyer will be able to claim only the amount specified in the contract, and not the announced and unproven actual amount.

Therefore, lawyers advise indicating in the purchase and sale agreement the full market value of residential real estate, including the prepayment or deposit.

Registration of the agreement in Rosreestr

After the purchase and sale agreement has been concluded and notarized, you must contact the Rosreestr authority to register the transfer of ownership of residential real estate from the seller to the buyer.

You can submit an application for state registration to the Rosreestr body in person or through a representative by proxy, you can send it by mail or use the service of the Multifunctional Center (brand - “My Documents”).

The following documents must be attached to the application:

• copies of passports of the buyer and seller;
• purchase and sale agreement, acceptance certificate of the apartment;
• extract from the Unified State Register of Real Estate with cadastral information;
• a receipt confirming that the buyer has paid the state fee for registration.

State registration is carried out throughout 10 working days from the date of receipt of the application and documents.

Apartment sales tax

As mentioned above, the sale of an inherited apartment and the sale of an apartment acquired in another way (through privatization, under an exchange agreement, deed of gift, purchase and sale) do not have significant differences. Income tax on such a transaction is paid according to the general rules for taxation of individuals, but a number of features must be taken into account:

1. According to Part 1 of Article 220 of the Tax Code of the Russian Federation, when selling an apartment that has been in the ownership of the heir for more than three years (after 01/01/2016 - more than five years), no income tax is charged. A period of three years (five years) must pass from the date of death of the testator, and not from the date of receipt of the Certificate of Inheritance or an extract from the Unified State Register in Rosreestr.

Note! Since January 1, 2016, there have been some changes in the tax rules - income tax on the income of an individual is, as before, 13%, but is levied on the sale of residential real estate owned by the seller for less than 5 years.

1. The heir often has a desire to sell inherited real estate as soon as possible. There can be many reasons for this, for example, living in another region, the need to pay off the debts of the testator from the proceeds from the sale of property. If the housing is sold during the first three years (the first five years - if the inheritance was opened after 01/01/2016) - the transaction is subject to taxation.
2. If the transaction amount is less than one million rubles (for example, if a share of an apartment is sold), the tax is not paid. If the transaction amount exceeds one million rubles, income tax is 13% for citizens of the Russian Federation and 30% for foreigners on the amount exceeding one million rubles (according to paragraph 2 of Article 220 of the Tax Code of the Russian Federation).

The tax is paid to the local tax office after submitting the declaration by April 30 of the following year.

How to avoid paying tax?

So, you don’t have to pay tax if...

• More than three years have passed since the death of the original owner of the apartment - if he died before 01/01/2016, more than five years - if he died after 01/01/2016.
• The cost of inherited housing is less than 1 million rubles.

Note! Some unscrupulous sellers, in an effort to avoid paying taxes, deliberately underestimate the value of the property, sometimes even to less than one million. In this case, it is primarily the buyers who are at risk. Firstly, as mentioned above, in the event of a dispute and forced termination of the sales contract, they will not be able to prove the amount of money actually paid and will receive only what is specified in the contract. Secondly, they will be deprived of the tax break provided by law to owners of new housing: they will have to pay 130 thousand rubles.

One should not lose sight of the fact that the tax authority is well aware of such an offense as tax evasion, and can hold the guilty seller accountable for unjust enrichment.

The legislation provides tax benefits for certain categories of citizens. So, they are exempt from paying tax...

1. Pensioners;
2. Disabled people of group I or II;
3. Disabled children.

If the seller falls into one of the listed categories, he should submit an application for tax exemption to the local tax office, attaching copies of documents confirming retirement age or disability. The main thing is to timely submit an application and documents confirming your right to a tax benefit. After some time, a positive response will be received from the tax office.

Difficulties when buying and selling an inherited apartment

If the heir contacted the notary in a timely manner and completed all the documentation correctly, there should be no problems with the further alienation of the inherited property. However, you should always be prepared for unforeseen circumstances.

The main difficulty that the seller of an inherited apartment has to face is finding a buyer. Potential buyers are often alarmed by the possibility of the sudden appearance of other heirs who did not enter into inheritance in a timely manner. Even if the inheritance occurred under a will, there may always be a relative who wants to challenge the will in court. If the court evaluates all the circumstances of the case and decides that the new heir has not entered into inheritance rights for good reasons, but has the right to the disputed real estate, the completed sale and purchase transaction may be declared invalid.