Wills, inheritance and taxes: how to solve these problems if you live abroad

As I was able to establish empirically, the most common and intractable problem of our immigrants is inheritance in their homeland. Unfortunately, both young and old are faced with this issue; both those who have been in America for almost a week, and those who have been here for almost 40 years; people with and without status. And even those who had long ago erased their homeland from memory completely put an end to this issue... and suddenly received news that his second cousin, or even just a friend or former lover, left him an inheritance. Even when you are sure that absolutely nothing connects you with your homeland, fate sometimes throws up surprises.

Photo: iStock.com/designer491

Therefore, if it seems to you that this topic definitely does not concern anyone, do not rush to conclusions: you never know in advance in whose heart you left an indelible mark and who will decide to bequeath part of their property to you. What about a will... After all, even with inheritance according to the law in Russia, for example, there are eight lines. That is, somewhere, hypothetically, your relatives live, whose heirs you may well be legally without even realizing it.

Inheritance by law: sequence

Each subsequent queue inherits only if there are no previous representatives. Queues are formed according to degrees of relationship.

1. To the heirs first stage by law include the spouses, parents and children of the testator. The testator's grandchildren and their descendants inherit by right of representation. The right of representation means that the share of an heir who died before the opening of the inheritance or at the same time as the testator passes to his respective descendants and is divided equally between them.
2. To the heirs second stage the law includes full and half-siblings of the testator, his grandparents on both the father's and mother's sides. Nephews and nephews of the testator inherit by right of representation.
3. To the heirs third stage by law include the uncles and aunts of the testator. The testator's cousins ​​inherit by right of representation.
4. Heirs fourth stage - These are the great-grandparents of the testator.
5. Fifth stage – these are the children of the testator’s own nephews and nieces (great-great-grandsons and granddaughters) and the siblings of his grandparents (great-great-grandparents).
6. Heirs sixth stage - these are the children of the testator’s cousins’ grandchildren and granddaughters (great-great-grandsons and great-granddaughters), the children of his cousins ​​(great-nephews and nieces) and the children of his great-uncles and grandmothers (great-uncles and aunts).
7. To heirs seventh stage By law, the stepsons, stepdaughters, stepfather and stepmother of the testator are called upon.
8. In the absence of other heirs by law, the disabled dependents of the testator inherit independently as heirs eighth stage.

Persons classified as heirs by law who are disabled on the day of opening of the inheritance, but who are not included in the circle of heirs of the line called for inheritance, inherit by law together and equally with the heirs of this line, if at least a year before the death of the testator they were dependent on him , regardless of whether they lived together with the testator or not.

Persons who are not heirs by law, who were incapacitated for work on the day the inheritance was opened and were dependent on the testator for at least a year before the death of the testator and lived together with him, inherit together and on an equal basis with the heirs of the line called for inheritance.

Will

Property can be disposed of in the event of death by making a will or concluding an inheritance agreement. A will is a unilateral transaction that creates rights and obligations after the opening of the inheritance. This document must be signed by a person who has full legal capacity at that time. The will must be made in person; the participation of a representative in this process is not allowed.

However, a will cannot 100% protect the testator from unwanted heirs. In addition to the fact that a will, like any transaction, can be challenged, there are heirs who are called upon to inherit regardless of the contents of the will, as well as persons who have the right to the testator’s property, even if they are not mentioned in the will.

Firstly, these are spouses. In the absence of a joint will of the spouses or an inheritance agreement, the surviving spouse by default has the right to half of the property acquired by the spouses during marriage (the marital share). The testator's minor or disabled children, his disabled spouse and parents, as well as the testator's disabled dependents, inherit, regardless of the contents of the will, at least half of the share that would be due to each of them upon inheritance by law.

On the subject: How to issue a power of attorney abroad: advice from an experienced notary

When is a will not necessary?

Very often people turn to me to draw up a will, but after talking with the person, you understand that he does not need this at all. Why? A will is a tool for changing the order of inheritance under the law. In other words, if a father has three sons, then by making a will for one of them, the testator deprives the other two of the right to inherit by law. But if a father has only one son, and there is no wife or parents, then a will in favor of this son will not change anything, because this only son will be the heir in any case, with or without a will.

Duration and methods of entering into inheritance

The general period for exercising the right to inheritance is six months from the date of its opening. The opening of the inheritance is the day of the testator's death, and not the day when you found out about it or when you decided to file an application.

Acceptance of an inheritance is carried out by submitting an application to a notary at the place where the inheritance was opened. If the heir's application is handed over to the notary by another person or sent by mail, the heir's signature on the application must be notarized.

It is assumed that the heir has accepted the inheritance if he has performed actions indicating such acceptance:

• took possession or management of inherited property;
• took measures to preserve the inherited property, protect it from encroachments or claims of third parties;
• made at his own expense expenses for the maintenance of the inherited property;
• paid the testator's debts at his own expense or received funds due to the testator from third parties.

Restoring the deadline for accepting an inheritance

If the heir has not submitted an application for entry into the inheritance and has not taken actions indicating the actual acceptance of the inheritance, then in this case judicial and conciliation procedures for their restoration are provided.

At the request of an heir who missed the deadline established for accepting the inheritance, the court may restore this deadline and recognize the heir as accepting the inheritance if the heir did not know and should not have known about the opening of the inheritance or missed this deadline for other valid reasons. Previously issued certificates of the right to inheritance in this case are declared invalid by the court.

The inheritance may be accepted by the heir after the expiration of the period established by law without going to court, subject to the written consent of all other heirs who accepted the inheritance.

Photo from the personal archive of Karina Duval

Refusal of inheritance and taxes

Within the period provided for acceptance of the inheritance, the heir may renounce it in writing either in favor of another heir or without regard to it. If you refuse the inheritance in favor of another person, then your share completely passes to that person. If you refuse without regard, then your share is distributed equally among all other heirs.

The reasons for refusing an inheritance have no legal significance, but in modern realities the reasons are most often political. For example, an American man’s Russian wife died. After her death, a lot of property remained in St. Petersburg. An American man can enter into an inheritance in Russia, but will not be able to sell this property, because a special procedure is currently in effect for US citizens, and in order to sell property they own in Russia, an account C and permission from a government commission are required.

But at the same time, these spouses have a common child, the happy owner of two passports - Russian and American. This means that if such a son or daughter inherits, then in Russia he will be considered a Russian citizen, and no restrictions will be applied to him, except for tax consequences, but they are determined by the place of residence of the heir, and not by his citizenship.

Russian legislation regards property you inherit as income. And you have to pay tax on any income. But only if it is sold. If you, as an heir, owned property for less than three years and decided to sell this property, then a tax resident of the Russian Federation will pay a tax of 13%, and a tax non-resident will pay 30%. The concept of “tax resident” is enshrined in Article 207 of the Tax Code of the Russian Federation, which stipulates that tax residents are persons who are actually in the Russian Federation for at least 183 calendar days within 12 consecutive months. Accordingly, tax non-residents are persons who live abroad for most of the year.

Many people wonder: is it possible to legally avoid paying taxes? Is it possible to sell an apartment in Moscow without losing 30% of its value? Yes, you can. As a general rule, income received by a taxpayer from the sale of real estate is exempt from taxation provided that the real estate was owned by the taxpayer for a minimum period of ownership of the real estate object or more. This period is three years if the right of ownership of the real estate object was received by the taxpayer by inheritance or under a gift agreement from a family member.

Testamentary refusal

The testator has the right to establish in the will an obligation in relation to one or more heirs to fulfill, at the expense of the inheritance, any obligation of a property nature in favor of one or more persons. These persons become entitled to demand the fulfillment of this obligation (testamentary refusal). The contents of the will may be limited to the testamentary refusal. For example, the testator may impose on the heir to whom a residential building or apartment is transferred the obligation to provide another person with the right to use this premises for the period of that person’s life or for another period. Upon subsequent transfer of property to another person, the testamentary refusal remains valid.

You may be interested in: top New York news, stories of our immigrants and helpful tips about life in the Big Apple - read it all on ForumDaily New Y

How to transport ashes

The question of how to transport ashes does not directly arise from inheritance law, but this does not make it any less relevant. This issue is very acute for many living abroad. Some want to be buried in their homeland and “bequeathed” their children to take them “home” after death. Others who could not or did not want to live with their family in America and died in their homeland “willed” their children to be buried in the United States.

Someone did not bequeath anything, but their son or daughter, faced with the impossibility of returning home, is themselves puzzled by the problem of transporting the ashes of their parents to America in order to be able to visit the graves of their relatives. The motives are different, but the reason is usually the same - to be with your family, at least after death.

To export ashes outside the country, you must follow the rules of the country of export, country of import, and transit countries. What is common in all cases is a death certificate and a certificate of absence of extraneous investments, and this in all cases proves that the passenger is carrying ashes in the urn, and not gold, diamonds or, say, drugs.

How our office can help

Our office in New York specializes in the management of inheritance and related matters. Through us you can:

• open an inheritance case without leaving the USA;
• draw up a power of attorney to conduct inheritance business (as well as any other power of attorney);
• entrust us with the management of inheritance business on a turnkey basis;
• to restore in court the missed procedural deadline for entering into inheritance;
• establish the fact of acceptance of the inheritance;
• collect the registry office documents necessary for entering into an inheritance (death certificate, birth certificate, documents confirming the change of surname).

At the same time, we can request documents for you from any jurisdiction and issue apostilles. And, of course, We will deliver your ashes from any country and to any country of your choice.

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