Inheritance by Right of Representation: Common Myths That Lead to Misunderstandings and Conflicts

I repeatedly encounter a common misconception regarding the order of inheritance by right of representation, which involves grandchildren and their descendants, the children of full and half siblings (nephews and nieces), and the testator's cousins. By law, the share of an heir who died before the opening of the inheritance or at the same time as the testator, in certain cases, passes by right of representation to their respective descendants (Clause 1, Article 1146 of the Civil Code of the Russian Federation).

What does this mean? Let's look at an example.

A mother, let's call her Varvara Vasilyevna, has two children—a daughter and a son. The son died in 2005, leaving behind two small children. The mother dies in 2025. Who do you think will inherit after her death? Seven out of ten people confidently answer this question that the daughter—the only surviving child—will inherit. The daughter thought so too when she applied to the notary to claim the inheritance.

Imagine her surprise when she learned that a certificate of inheritance would only be issued for half of her deceased mother's estate. The other half would go to her nephews, the children of her deceased brother, who inherit on behalf of their deceased father, provided that their father would have been entitled to the inheritance had he survived. Thus, the testator's grandchildren, inheriting by right of representation, are considered first-priority heirs.

In this case, the share that would have been due to the deceased son is divided equally among his children. That is, if the son is entitled to half of the inheritance, then his daughter and son, the testator's grandchildren, will each receive 25% of the inheritance.

On the subject: Divorce, inheritance, and thousands of miles in between: How Karina Duval navigates legal issues on both sides of the ocean

What happens if one of the grandchildren renounces the inheritance? In our case, the daughter of the deceased Varvara Vasilyevna asked her nephews to sign a renunciation. She said it was unconscionable. The daughter-in-law took the children to America immediately after her husband's death. The children grew up in New York City from a young age. They hadn't seen their grandmother in 20 years, never called, never helped, never congratulated her—nothing. Meanwhile, the daughter cared for her elderly mother until her last day, combining the roles of caregiver, nurse, cook, cleaner, and breadwinner.

The brother's children reacted ambivalently to their beloved aunt's request. The daughter responded briefly and to the point: "I have the right," and she truly does, regardless of her involvement in her grandmother's life. The son, after some hesitation, agreed to write a waiver.

But here's the problem: no one explained to him that there are different types of waivers. There's a directional waiver, when one heir renounces their share in favor of another. But there's also a waiver without specifying who it's for. As a result of such a waiver, their share of the inheritance is divided equally among the other heirs. And so our heir executed the second type of waiver. His share, accordingly, didn't go to his aunt, but was divided equally between her aunt and sister, who ended up receiving 3/8 instead of 1/4.

How can we avoid such situations? How can we protect our loved ones from heirs who haven't seen the testator for years?

First, being informed will save you. Forewarned is forearmed. If you've thought about the problem, you're already on your way to solving it. So:

1. With due diligence and care, a testator can leave a will. A will, of course, is not a guarantee or a guarantee (it can be contested, or a right to a compulsory share can be claimed), but it is nonetheless a protection.
2. If the testator is absolutely certain of his intentions, he can gift or sell his property to his beloved daughter during his lifetime. Other heirs can, of course, also challenge a gift deed or a purchase and sale agreement, but this will be a difficult and not always feasible task.

I once had a client come to me—an elderly couple who had moved to America to be with their daughter. Their granddaughter, the daughter of their deceased son, remained behind in St. Petersburg. The elderly couple were concerned about what would happen if they died, and who would inherit their apartment in St. Petersburg. They were very surprised and upset to learn that their daughter would receive half the apartment, and their granddaughter the other half. Given the family dynamics, this would have meant the beginning of a protracted conflict and the impossibility of disposing of the apartment due to the inability of the potential heirs to reach an agreement.

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 York

They then asked me to draw up a will in their daughter's name, but upon closer examination, we discovered that their granddaughter had a disability, which would have entitled her to a mandatory share of the inheritance and would also have entitled her to at least a quarter of the apartment, if not half. This, in turn, would have been a dead end without the will to resolve the dispute. So the clients decided to sell the apartment. After some thought, they concluded that for their daughter, living in America, the apartment would have been like a suitcase without a handle, awkward to carry and impossible to navigate across the ocean. And money, as in any family, is never a bad thing.

Our readers, listeners, viewers, and subscribers have many questions, and you can get professional answers to them at our office at 1400 Ave Z, Office 502, Brooklyn, NY 11235. To schedule a consultation, please email: [email protected].

Read also on ForumDaily:

How should a power of attorney issued abroad be executed so that it is accepted in Russia?

The specifics of exercising the right to inheritance: why it is not always possible to refuse

How to get married in New York without leaving home

What pensioners and their families living abroad need to know

Do you want more important and interesting news about life in the USA and immigration to America? — support us donate! Also subscribe to our page Facebook. Select the “Priority in display” option and read us first. Also, don't forget to subscribe to our РєР ° РЅР ° Р »РІ Telegram  and Instagram- there is a lot of interesting things there. And join thousands of readers ForumDaily New York — there you will find a lot of interesting and positive information about life in the metropolis.