Disposal of property abroad: what you need to know about gift, will and inheritance abroad

People who live in the US and own property abroad often worry about inheritance. They want to know what will happen to their or their parents' property, how to claim their inheritance rights and what to do, especially in a situation where it is extremely difficult to travel anywhere. Over the past year, with the participation our office more than 50 inheritance cases were opened in Russia and Ukraine. In this article, I will tell you what you need to know about filing an inheritance abroad.

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Inheritance opening

The opening of the inheritance is the day of the death of the testator. At this moment, all powers of attorney issued to them during their lifetime cease to be valid, and the period for entering into the inheritance is counted down. The term for entry into the inheritance is 6 months. During this period, you must, through a special application, inform the notary of your intention to accept the inheritance.

An application for accession to the inheritance can be submitted in three ways:

• heir in person at a notary's reception;
• a representative of the heir who has authority in the form of a notarized power of attorney;
• by mail: any person can submit an application by mail, provided that the application for entry into the inheritance is notarized.

How to enter into an inheritance if you live abroad

If the heir lives in the country where the inheritance was opened, then there will be absolutely no difficulties. Even if the heir lives on the other side of the country, he can issue a notarized statement at any notary of his choice and send it by mail.

If the heir lives abroad - for example, in the USA - the application for inheritance must contain an apostille. An apostille is a way of legalizing foreign documents; it is issued by the state in which the notarial document was issued and certifies the authenticity of the signature and seal of the person who issued the document. An application issued in the USA without an apostille has no legal force in Russia and other countries of the former USSR.

If you live in and around New York City, you can apply for inheritance at our office. We provide a full range of services:

• registration of an application for entry into the inheritance;
• affixing an apostille;
• delivery to Russia;
• submission to a notary (if necessary);
• full management of the inheritance case, up to obtaining a certificate of the right to inheritance and, at the request of the client, the property and money due to him.

What to do if the deadline for entering into an inheritance has passed

The heir must declare his intentions to enter into the inheritance within six months from the date of the opening of the inheritance, unless he actually entered into the inheritance. Sometimes the actual entry into the inheritance must be proved through the court, but in some cases it is so obvious that a notary can issue a certificate of the right to inheritance without a trial. For example, when the spouses lived together at the same address, ran a joint household, had a common budget. When living in Russia, this fact is unambiguously confirmed by registration at one address. If the spouses lived in the United States, then cohabitation is confirmed by a rental agreement for housing, payment of bills at the same address, a joint bank account, affidavits, and other documents recognized in Russia as evidence.

Inheritance by law vs. inheritance by will

A will changes the procedure established by law for entering into an inheritance. In other words, you have a husband, children, parents, and you want to leave your property to a neighbor. In this case, a will is required. And if you have an only son or daughter, no parents, no husband, and you want to leave the property to this very only son or daughter, then a will is not needed.

It is also not necessary to do it “just in case”, since your only child has no competition, even without a will he will be the only legal heir. Another question, if you have two sons, and you want to leave your property to one of them, then in this case a will is necessary.

What is the difference between a will and a will

When inheriting - both by law and by will - you will have the right to property only after the death of the testator. When concluding a gift agreement, ownership of the property passes to the donee during the life of the donor.

On the subject: Why an expert in Russian law is so necessary in the USA: the story of Karina Duval

I am often asked the question: which is better - a will or a deed of gift? The answer depends on the angle of view. From the point of view of the donor, it is better for him to retain the rights to the property and not transfer them to anyone during his lifetime. Especially if we are talking about the only apartment in which a person lives himself. Having disposed of the only housing during his lifetime, any person risks remaining on the street, even if he gives his apartment to his only beloved daughter, son or spouse. There are things that we cannot control: for example, relationships in the family may deteriorate, or the relative to whom you transferred the property may die before you - and then his heirs will come, with whom you will no longer be able to come to an agreement.

Therefore, it is definitely safer for a person who parted with his property not to do so while alive. For the donee, on the contrary, receiving an apartment as a gift is a kind of guarantee that the donor / testator will not change his mind and will not give / leave his property to someone else.

You can change a will, but it’s more difficult with a deed of gift

Yes, you can change or make a new will. Each subsequent will cancels the previous one. The donation agreement can only be terminated or contested.

Gift agreement vs rent agreement with the right of lifelong residence

A donation contract is a gratuitous act, the donor gives his property to the donee without demanding anything in return. Therefore, by transferring his apartment under a donation agreement, the donor thereby waives all his rights to it and remains unprotected, relying on the donee's word of honor that he will allow the donor to live in an apartment that no longer belongs to him.

Most of my clients live abroad and by donating an apartment, say, in St. Petersburg, they risk absolutely nothing, since they are provided with housing in the USA. But if you live in this apartment, you'd better think twice before giving up your legal rights to the property.

An alternative to a gift agreement and a will is an annuity agreement with the right of life residence. In this case, ownership passes to the new owner immediately, but he is obliged to provide the previous owner with lifelong security and the right to reside in the apartment. This agreement has not only advantages, but also disadvantages. Judicial practice knows many disputes when the recipient of the annuity goes to court, proving that the terms of the contract are not fulfilled or are performed improperly. In addition, this agreement is not always beneficial to the purchaser of the property, and the amount of his expenses may ultimately exceed the cost of the apartment.

History knows the case when an elderly French woman under the age of 90 entered into an annuity agreement with her lawyer, who was about 50 years old. At the age of 68, the lawyer died, and his duties were transferred to his wife, who paid rent for more than 10 years - the grandmother lived a long and happy life and entered the list of centenarians. She herself called this situation an example of the fact that not all transactions are profitable.

Photo from the personal archive of Karina Duval

Answers to frequently asked questions about inheritance

1. If I was left with a will, do I still have to do something after the death of the testator?

Yes, they should. And this is the most common misconception that I have to deal with. Many clients mistakenly believe that having a will frees them from having to go through the procedure of entering into an inheritance. No, a will does not release this obligation.

You still have to claim your rights within six months of the opening of the inheritance. Missing the statutory six-month deadline could land you in court, incur unexpected costs, and this is the best-case scenario. In the worst case scenario, you may lose your bequeathed property.

2. I legally inherited property from my mother, but now we have different surnames with her. What if the name on the passport is different from the name on the birth certificate?

If you enter into an inheritance by law, you will definitely have to prove your relationship with the testator. Kinship is confirmed by documents issued by the registry office. Relationship with parents - birth certificate. The most common situation is when a daughter gets married and changes her last name. In this case, to confirm the relationship, she will need a marriage certificate or an extract from the marriage record.

But there are also more difficult situations. For example, if a son or daughter lives in the USA and changed his name not because of marriage, but, for example, when obtaining US citizenship, he made it more understandable and digestible for Americans. For example, he shortened the surname “Dobrokhotsky” (an unpronounceable set of letters from the point of view of Americans) to “Good”, changed the name “Alexander” to “Alex”, and completely got rid of the patronymic. How to prove relationship in this case? If all these changes were made legally, through the District Court, then in this case you need to get a court order confirming the change of name, put an apostille on it and get a notarized translation into Russian. But if the name is changed arbitrarily, and there are no documents confirming these changes, then in this case, to establish the fact of a name change, you need to go to court.

3. We came to the USA from Ukraine and we don't have any documents with us. The lawyer says that without birth and marriage certificates, he cannot do anything. How can we get documents from Ukraine in the current situation?

Our office will receive for you any registry office documents from any jurisdiction, including Russia, Ukraine, Belarus, Uzbekistan, Tajikistan, Kazakhstan and the Baltic countries. We have partnership relations with the entire territory of the former USSR. Moreover, we will request documents for you from all states of the USA, Israel, and many other jurisdictions around the world. In addition, we can obtain for you certificates of no criminal record from Russia, Uzbekistan, Kazakhstan and many other countries.

4. How will our documents get to Russia and then back to the USA if the Russian postal services have suspended their work?

Our office sends documents to anywhere in the world, including Russia, Ukraine and Belarus. We provide our clients with uninterrupted delivery of their powers of attorney, statements, certificates of the fact of being alive, consents to the disposal of marital property, consents to the departure of children abroad. Sending letters to customers is free of charge. If you are not our client, we can still help you deliver important documents to an addressee in another country. We also deliver documents to the USA from anywhere on the map.

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.

An interesting (and instructive) case from life, or Heirs of easy ways are not looking for

How to confirm the death of a testator? — The answer to this question would seem obvious. But no, sometimes it causes difficulties even for professional lawyers.

A few days ago, a lawyer from Moscow sent me a court decision declaring a citizen dead for consultation. I began to ask leading questions and found out that this citizen left for the United States many years ago. Relatives in Moscow found out about his death, they even knew approximately where he lived and died, but for some reason they did not know that in the United States, as in Russia, you can get a death certificate, so they went to a lawyer . And the lawyer did not think of anything better than going to court. Incredibly, this situation did not raise any questions from the judge either. However, questions arose at the reception at the notary, who refused to accept the court's decision as confirmation of the fact of death and sent clients to receive a death certificate.

To my leading questions, the Moscow lawyer replied that the man died in the state of Washington, however, the circumstances of the case indicated that until the moment of his death he lived in the state of New Jersey ... It seemed to me rather strange that the deceased was taken to be buried from the east coast to the west. A little searching helped me determine that Washington is the name of the street where the cemetery is located in the state of New Jersey, not the state. I also found an obituary for the deceased on the net, with the exact dates of birth and death, and, most importantly, we learned the spelling of his name in English.

So, within a couple of hours, I had all the information I needed to submit a request to the New Jersey State Department of Health for a death certificate. The next step is to obtain an apostille for the death certificate, and that’s it - you can enter into an inheritance. In this case, however, the six-month period for entering into inheritance has passed, which means that the heirs will have to go through the judicial procedure.

How to make an appointment

Our office located in the heart of Brooklyn at: 1400 Avenue Z, Office 507, Brooklyn, NY 11235. I accept only at certain hours and by appointment only: [email protected], tel. 718 704 85 58.

To send documents by mail, please contact: Karina Duvall, 95 Brower Avenue, Woodmere, NY 11598.

Read also on ForumDaily:

Why an expert in Russian law is so necessary in the USA: the story of Karina Duval

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Russian bureaucracy puts spokes in the wheels of immigrants trying to resolve issues remotely: how to deal with it

Pension from homeland for immigrants in the USA: who can receive it and on what conditions

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