What is an inheritance fund? Inheritance fund: new Russian legislation and foreign experience What the law introduces.

A hereditary fund is a fund created in pursuance of a citizen's will and on the basis of his property, which carries out activities for managing the property of this citizen received by inheritance for an indefinite period or for a certain period. An integral part of the will, the terms of which provide for the creation of a hereditary fund, is the decision of the testator to establish a hereditary fund, the charter of the fund, as well as the conditions for managing the fund. In such a decision, the testator also determines the procedure, amount, methods and terms for the formation of the property of the fund, the persons appointed to the bodies of this fund and the procedure for determining such persons. The inheritance fund is subject to creation after the death of the testator upon an application sent to the authorized government agency notary in charge of probate. The application shall be accompanied by a decision on the establishment of a fund and the approval of the charter of the fund, drawn up during the lifetime of the citizen - testator. The hereditary fund is called upon to inherit by will after its creation.

Let us highlight the following aspects of the new provisions on the hereditary fund of the Russian Federation:

expansion of the scope of inheritance by will;

The order on the creation of a hereditary fund is considered as an integral part of the will. At the same time, it seems that the testator's order to create a hereditary fund is an independent way of disposing of property in the event of death. The decision of the testator to create a fund predetermines a special procedure for the distribution of the estate and a different fate of the property transferred to the fund. In this case, the testator's will to create a fund and transfer the estate to the fund may restrict the exercise of the rights of heirs under the law, including the right to a mandatory share. The heirs, even those who participate in the subsequent activities of the foundation, no longer become the direct owners of the ownership of the objects of hereditary property. It also implies a limited targeted use of the property transferred to the foundation, in contrast to the former, as a rule, unlimited possession and disposal of the objects of inheritance by the heirs. Thus, when a new subject of law arises, which is the hereditary fund, property legal relations of inheritance are transformed into legal obligations for participation in the management of the hereditary fund or the acquisition of property from the fund.

the founder is only one natural person;

The norm under consideration corresponds to the doctrinal approach of the Russian Federation, according to which a will may contain orders of only one citizen. Making a will by two or more citizens is not allowed. As before, Russian legislation does not provide among the legal means of contractual inheritance such institutions that are widespread in the world as a joint will or inheritance contract.

3. the creation of the Foundation takes place only after the death of the testator;

The uniqueness of this form of legal entity lies in its separate existence from the founder - the deceased testator. In such an institution there is no person who is the owner of the inherited property transferred to the foundation. In this sense, the truth of the brilliant theory of fiction of Pope Innocent is expressed. VI. The hereditary fund, being an artificial construction and a product of the law and order of a high stage of development, independently exists in society without belonging and regardless of the will of a certain individual.

4. the hereditary fund of the Russian Federation is legal entity and has the characteristics of this subject of law.

5. non-commercial nature of the activity;

6. targeted use of property transferred to the foundation.

The hereditary fund of the Russian Federation refers to unitary non-profit organizations that do not have membership, which is established by an individual on the basis of voluntary property contributions. Based on the basic provisions on the legal personality of persons of this organizational form, the purposes of the hereditary fund are defined as charitable, cultural, educational or other social, socially useful purposes. The Foundation uses the property exclusively for these non-commercial purposes as defined in its charter. But the charter of the foundation may provide for the right to carry out income-generating activities, which is allowed by law only in so far as it serves the achievement of the goals for which the foundation was created, and if such commercial activity consistent with such goals.

European Inheritance Fund

The proposed construction of the creation of a fund by an individual on the basis of hereditary property has a certain similarity with the funds that are widespread in the legal systems of Western Europe. The existence of such a legal form is based on two legal principles: inseparability and static nature of hereditary property. Inseparability is understood as such a legal state that prevents the splitting (separation) of objects of inheritance. The static nature of hereditary property is expressed in the fading (unchanged state) of the objects of inheritance, in which they were when fixing rights until the date of the death of the testator.

In fact, the foundations have a long history both in America and in Europe, similar in terms of legal form, but different in terms of the purpose of creation and the nature of their activities. The new hereditary fund of the Russian Federation adopted the characteristic features of the fund of the continental legal system:

In these countries, the fund law was especially developed in the legislation of the Grand Duchy of Liechtenstein, which we will refer to in the course of the review.

However, we highlight the following fundamental differences between European and Russian inheritance funds:

the existence of public law foundations and private (non-public) foundations;

Such a fund belongs to private (non-public) legal entities and is entered in the Commercial Register, but has certain features of legal personality. One example is the Liechtenstein Deposit Fund. Constituent documents of such a Fund are subject to transfer to the Commercial Register, however, information about the fund is not openly published. At the same time, anonymity is maintained about the name of the fund, its founder and beneficiaries, and governing bodies. The implementation of the legal personality of the Deposit Fund is characterized by the fact that when making transactions, the Fund is represented by Advocates - authorized persons. However, we note that the Deposit Funds are also obliged to disclose information about the beneficial owner of the organization in accordance with the rules of modern international requirements. According to the rules, in this case, such persons include members of the highest collective management body - the Board of the deposit fund and the beneficiaries of the fund.

European legal orders strictly limit the range of purposes for the use of property by such inheritance funds;

Their main characteristic: socially useful or personal goals. The implementation of commercial activities is allowed only by public benefit funds and provided that this activity is directly aimed at achieving the declared public benefit goals. The objectives of the Personal Fund are related to the organization of the management of the fund's property in accordance with the procedure determined by the founder of the fund, and the commercial activities of such a fund should be directly related to the management of the fund's assets.

considerable size authorized capital European fund,

If for the hereditary fund of the Russian Federation the formation of the authorized capital is not provided for by law, then for the European fund this requirement is mandatory. For example, in Germany, the authorized capital of the fund is from 50,000 EURO, in Liechtenstein - from 27,000 EURO, in Switzerland from 44,000 EURO. It seems quite logical to form in a significant amount initial capital of the hereditary fund of the Russian Federation, otherwise, how will the fund achieve the socially useful goals of its creation, what property will the three bodies of the fund manage and, in fact, what will the beneficiary of such a non-property fund receive?

a clear focus on the declared goals of international inheritance and the simplicity of the creation procedures;

For example, in Liechtenstein, in order to establish a Personal Fund for inheritance purposes, a written application by the founder on the separation of property into a fund, in which the beneficiaries are indicated, is sufficient. Such beneficiaries can also be any natural or legal persons. The minimum amount of the authorized capital of the fund is 27.000 EURO and is formed on the date of foundation of the fund in the form Money, property or property rights, including those located in different countries.

a means to protect property from the claims of creditors of the testator;

The legal form of a European fund may provide for a pre-emptive right to a mandatory share for heirs and (or) a pre-emptive right regular payments beneficiary before the rights of the testator's creditors. For example, the charter of the foundation provides for the following wording: “hereditary property is intended for the beneficiary as an assignable and non-withdrawable monthly maintenance (Apanage) or payment of a pension.”

widespread practice of existence of funds with a high degree of anonymity;

Among the significant advantages of this organizational form is the relatively high degree of anonymity of the fund. The Deposit Funds are mentioned above, information about which is transferred to the Commercial Register, but is not subject to public disclosure. In other cases, legal relations in the fund are regulated not only by the charter, but by charters that are not subject to publication in commercial register. Pure Family Foundations that declare their foundation, but are not subject to registration in the Register, continue to maintain confidentiality about the founder and beneficiaries of the foundation to third parties. It is the Deposit Funds that occupy the leading position in public life Liechtenstein with a total of more than 29,000 Deposit Funds versus about 2,000 ordinary registered funds. The total value of assets held in the Liechtenstein Foundations is more than EUR 173 billion as of 2015, which is about 50% of the funds placed in the European Foundations as a whole.

control over the activities of the fund by the authorized state body;

To the structure of organs government controlled European countries include institutions for the supervision of public and private funds, including family and inheritance funds. Such bodies control the intended use of the funds' property. European funds are required to submit annual reports of the fund and an audit report to such a body.

special courts for the consideration of disputes arising from legal relations in funds.

Since 2011, disputes and disagreements related to the legal relations of the Fund can be considered under the Liechtenstein arbitration rules within the Principality, which are characterized by minimal administration, ease of use and a high degree of confidentiality.

Transfer of property to the inheritance fund

The property of the hereditary fund of the Russian Federation is formed when the fund is created, in the course of carrying out its activities, as well as at the expense of income from the management of the property of the hereditary fund. Free transfer property by other persons in the hereditary fund is not allowed. When creating a hereditary fund and accepting the inheritance, the notary is obliged to issue a certificate of the right to inheritance to the fund within the period specified in the decision on the establishment of the hereditary fund, but no later than six months. It seems that such a certificate is a confirmation of the transfer of hereditary property to the created fund.

Under the terms of the management of the fund, it may be allowed to transfer to third parties all or part of the property of the fund, including after the death of the citizen-founder of the fund. This position is controversial because:

does not comply with the provisions of the law on the intended use of property;
creates prerequisites for abuses related to the alienation of the fund's property;
contrary to the fundamental rule of the last will of the testator.

Not traceable legal connection between the fact of the emergence of the legal personality of the Russian fund when it state registration and a legal obligation to carry out actions to transfer property to such a fund. In German law, this problem is solved as follows: if the foundation is recognized as legally capable only after the death of the founder, then in relation to the grants of the founder, it is considered that the foundation was formed before his death. Provisions of the founder means hereditary property. The recognized advantages of the European Foundation include the simplicity of registration of the transfer of hereditary property. The transfer is carried out in the form of delivery of things to the authorized body of the Fund. The legal basis for the transfer is the Certificate of Inheritance authorized body(court).

It seems that the approach is erroneous in the absence of a relationship between the provisions on the inheritance fund and the institution of inheritance of the testator's debts. Thus, the norms of Article 1175. 1. The Civil Code of the Russian Federation provides that the heirs who have accepted the inheritance are jointly and severally liable for the debts of the testator. Each of the heirs is liable for the debts of the testator within the value of the inherited property that has passed to him. The general provision of the law of obligations establishes the principle of proper fulfillment of obligations and the inadmissibility of unilateral fulfillment of obligations. Therefore, the rights of the creditor in case of a joint and several obligation are expressed in the requirement of performance both from all debtors jointly, and from any of them separately, moreover, both in full and in part of the debt. Solidary debtors remain obligated until the obligation is fully performed. It remains unclear what happens to the obligations of the testator when creating the inheritance fund and transferring the estate to him: How will the right of the creditor of the deceased person be exercised? Is the responsibility for the obligations of the testator on the foundation or on the beneficiary of the foundation? How and to what extent is the liability for the testator's debts distributed between the foundation and other heirs? Apparently, these tasks will have to be solved by Russian notaries when drawing up a will and developing a testator's decision to create a fund.

Inheritance fund management

The composition of the subjects of the Fund includes: the testator (testator), heirs, beneficiaries, as well as the management bodies of the fund. In the absence of the deceased founder, the management of the fund will be carried out by the supreme collegiate body of the fund, the collegiate and (or) sole executive body, as well as the board of trustees of the fund. The new provisions of the law of the Russian Federation provide for a special procedure for the formation of fund management bodies. Before the notary sends an application for registration of the fund to the authorized body, the notary decides on the formation of the bodies of the fund. If such bodies are not formed during the year (lack of a quorum in the collective bodies of the fund, absence of a sole executive body, refusal of the named persons to join the bodies of the fund), the fund is subject to liquidation at the request of the beneficiary or the authorized body. Thus, there is a gap in the regulation of the relations of the subsequent fate of the inheritance property if it is impossible to form the fund's bodies in accordance with the decision of the testator. In this case, the fund is not subject to state registration and does not acquire the rights of a legal entity. It seems that it is possible to fill the regulation by fixing the provisions that if it is impossible to form the bodies of the fund according to the will of the testator, the hereditary property of the fund is subject to protection and inheritance by law.

It should be noted that the legal form of the hereditary Fund in the absence of a founder (owner) of an individual and the structure of collective management outlined will require a high management culture and competence of members of the Fund's management bodies, which are characteristic corporate organizations. For example, it seems expedient to form a collegiate governing body on the principle of Sechs Augen Prinzip, that is, consisting of three individuals, least. It is also necessary to emphasize the important provision that the management of the hereditary fund is carried out by the bodies of the fund solely to achieve the goals for which it was created by the testator.

As a rule, in European legal systems, the management of an inheritance fund has a less complex structure, but is more strictly regulated in the field of supervision over the intended use of the fund's property. For example, in Liechtenstein, the body of the foundation is the Foundation Council, which has at least two members, one of whom must be a resident of Liechtenstein. This member of the Council represents on behalf of the foundation before government agencies. The Public Benefit Fund, which is registered in the Commercial Register, is subject to state supervision by the Supervisory Board for financial market in the form of control over annual reports fund. Supervision is considered as a means of ensuring the principles of inseparability and static nature, as well as ensuring transparency of the fund's socially useful activities.

Change in the charter of the inheritance fund

Paradoxical at first glance, but the charter and conditions of the fund management cannot be changed after the death of the citizen who was the founder of the fund and after the creation of the hereditary fund. An exception is the change of the Charter on the basis of a court decision at the request of any body of the fund in the following cases:

if the management of the hereditary fund under the previous conditions became impossible due to circumstances, the occurrence of which during the creation of the fund could not be assumed;
if it is established that the beneficiary is an unworthy heir, unless this circumstance was known at the time of the creation of the inheritance fund.

Beneficiary of the inheritance fund

The beneficiaries of the hereditary fund can be any participants in relations regulated by civil law, with the exception of commercial organizations. The beneficiary of the hereditary fund has the right to receive, in accordance with the terms of the management of the hereditary fund, all or part of the property of the fund. The rights of the beneficiary of the hereditary fund are inalienable; they cannot be levied for the obligations of the beneficiary. Transactions made in violation of these rules are void. The rights of a citizen-beneficiary of a hereditary fund are not inherited. The rights of a beneficiary - a legal entity shall be terminated in the event of its reorganization, except for the case of transformation, if the conditions for managing the hereditary fund do not provide for the termination of the rights of such a beneficiary upon its transformation. The beneficiary is not liable for the obligations of the hereditary fund, and the fund is not liable for the obligations of the beneficiary. An heir who has the right to an obligatory share and who is the beneficiary of the hereditary fund shall lose the right to an obligatory share. If such an heir, within the period established for accepting the inheritance, declares to the notary conducting the inheritance case that he waives all the rights of the beneficiary of the inheritance fund, he shall have the right to an obligatory share in accordance with this article.

Interrelations of the Inheritance Fund Institute with Family Law Institutions

The issues of the relationship between the institution of the hereditary fund of the Russian Federation and the provisions of family law on legal relations in the field of common joint property of spouses, the rights of the surviving spouse, the grounds for invalidating all or part of the decision to create a hereditary fund still remain unresolved. In the new norms of the Code there is no reference to the norms of the legislation regulating family legal relations, which is considered the imprudence of the Russian legislator.

On the contrary, the European doctrine provides for a special legal form pure Family Fund, the purpose of which is the management of property during inheritance. On the example of Liechtenstein law, the following advantages are highlighted in international inheritance:

the founder of the Inheritance Fund becomes free to decide on the transfer of property to many subsequent generations;
such a fund is an attractive legal remedy subsequent generations from the fragmentation of community property. For example, as a means of protection against fragmentation, a split in subsequent family relationships;
the freedom of expression of the will of the testator is expressed in the limitation of objections provided for by law against the targeted use of the community of property in the event of a reduction in the mandatory share of the inheritance;
the inclusion of an entire enterprise in the composition of the fund's property makes it possible to effectively overcome the legal situation in which it is required both to preserve the integrity of property assets and to limit the right to participate in the management of this enterprise on the part of the heirs, for example, due to their limited legal capacity or insufficient competence;
in certain cases, the right to inherit the foundation takes precedence over the claims of third parties against the testator. In particular, the right to an obligatory share in inheritance takes precedence over the rights of creditors under the obligations of the testator;
through the foundation, the Founder can secure future pension payments to certain individuals from the enterprise, which is transferred to the foundation and managed by the competent authorities.

Taxation of the inheritance fund

The new Law of July 29, 2017 N 259-FZ does not contain any features of the taxation of the hereditary fund. The Tax Code of the Russian Federation also does not provide for the specifics of taxation of an inheritance fund, equating this institution with the taxation regime for all non-profit organizations. Meanwhile, these provisions have conceptual significance. In particular, will the legislation of the Russian Federation provide for the specifics of taxation of the transfer of ownership of the property of the fund or the right to use such property to the beneficiary, separate rules for the taxation of periodic and regular payments to the beneficiary. Meanwhile, the key reasons for the appearance in the legal doctrine of such a form of inheritance as a fund were precisely the creation favorable conditions for subsequent inheritance, preservation of hereditary property, provision of other favorable civil and legal tax consequences upon the transfer of rights to inherited property to heirs. Therefore, when choosing a European fund as legal remedy for the transfer of inheritance property by interested parties, notaries and lawyers, the taxation criteria and their application in certain countries where the property may be located, the qualification of the property and its impact on taxation, the means of favorable taxation in international inheritance are always taken into account.

The foregoing circumstances may determine the degree investment attractiveness inheritance fund, and therefore the desire of residents of the Russian Federation to choose the form of inheritance of a fund under the jurisdiction of the Russian Federation. In particular, guided by the favorable taxation of income acquired from the European fund, this form of inheritance has gained enviable popularity among residents of European countries with high rates of taxation of personal income. As an example, we note that the taxation of Liechtenstein funds is more favorable than that of corporations and other enterprises. For example, individuals who are the beneficiaries of a fund are exempt from inheritance and gift tax, while a fund is exempt from tax on capital and shares. The fund's income tax is 12.5% per annum, but not less than 1,100 EURO. Under certain conditions, a fund with socially useful purposes is exempt from taxation of income that actually carries out such activities. In addition, the Principality has an extensive network of Double Taxation Treaties with 55 countries, including Germany, Austria, the USA, the UK, Cyprus, Malta, the UAE, Monaco and Switzerland, which allows for a wider use of such a fund in inheritance planning.

Recognition of the Russian inheritance fund outside the Russian Federation

The situation is complicated by the circumstance that a certificate of the right to inheritance issued by a Russian notary to the hereditary fund of the Russian Federation is subject to recognition in most countries through a court or other authorized state body. That is, when property located outside the Russian Federation is transferred to the fund from the jurisdiction of the Russian Federation, the task of taking possession of such foreign property becomes urgent. In this case, we refer to the well-known following international rules for the recognition of foreign public documents:

recognition and execution of a foreign document by virtue of the provisions of an international treaty;
recognition and enforcement of a foreign document by virtue of the provisions of national law;

We have to return again to the topic of insufficient activity of the state bodies of the Russian Federation in coordination with other countries in regulating the daily needs of citizens in family and inheritance legal relations. Thus, the Russian Federation still does not participate in a number of Conventions regulating these issues, namely: the Convention on a Uniform Law on the Form of an International Will (Washington 26.10.1973), the Convention on the Conflict of Laws Concerning the Form of Testamentary Dispositions (The Hague 05.10.1961), the Convention on the International Administration of the Estates of Deceased Persons (The Hague 02.10.1973), Convention on the Law of Trust and its Subsequent Recognition (The Hague 01.07.1985). And the existing bilateral agreements of the Russian Federation on the provision of legal assistance often do not define simple and accessible rules for the execution of notarial acts of the Russian Federation on the territory of other countries.

http://www.consultant.ru/cons/cgi/online.cgi?base=LAW&n=221507&dst=4294967295&req=doc&rnd=285391.17633309#0 (accessed 16.09.2017)

Business in Russia is a relatively young phenomenon. Nevertheless, the first entrepreneurs, the pioneers of the 90s and 00s, are gradually reaching the age when a person thinks about the well-being of his loved ones in case he is gone tomorrow.

The first option that comes to mind is that the heirs will continue the work of their fathers. Option, indeed, not bad, in the presence of the desire of the heirs. And if a son or daughter for some reason does not want or cannot manage the company, what then?

The matter is even more aggravated when there are several partners in the business. In such cases, the living participant is tempted to remove the heirs by paying them some kind of “compensation”. On the other hand, the heirs who have received a share in the company can simply ruin the business by their actions. It is to solve such seemingly hopeless situations that the legislator introduces the design of the hereditary fund. This design appears in accordance with the changes in the Civil Code of the Russian Federation, which come into force on September 1, 2018.

Use Case

Imagine that there are two partners "P1" and "P2". They own the company LLC "A". The specific percentage ratio of the partners' shares in the authorized capital is of no fundamental importance.

“P1” has heirs who, for certain reasons (we will return to them later), cannot rationally manage the company. At the same time, this statement corresponds to the opinion of both partners. However, "P1" still wants to ensure the comfortable existence of their loved ones. To do this, he turns to a notary and draws up a will, under the terms of which, after his death, the notary will create an inheritance fund.

The property "P1" - a share in the company "A" will be transferred to the hereditary fund. The heirs will become the beneficiaries of the fund, and P2 will manage it.

And here the fun begins: "P1" needs to determine how his heirs receive a share and / or income from managing it. There may be a lot of options, we believe that for the most part they depend on the reasons why P1 decided to create a fund.

The heir is sick or does not want to continue the work of the testator.

Solution: under the terms of management, beneficiaries must regularly receive a part of the income from the use of the estate (). Wherein minimum size deductions will be set in advance.

Also, the conditions of management will provide for the circumstance, upon the occurrence of which the hereditary fund will transfer all property into the ownership of the heirs. This is a kind of insurance against malicious actions "P2". Such circumstances, for example, may be: a delay in periodic deductions, transfers of a smaller amount, or the fund does not have the funds to pay.

In other words, if the fund managed by P2 stops paying income (even for objective reasons), then the heir gets the right to demand the transfer of the share to his direct possession.

The described example may not seem very fair in relation to P2, because the reasons why the fund does not transfer income can be different, and their occurrence does not always depend on the actions of the remaining partner. At the same time, even if things are going badly for objective reasons, we believe that the transfer of control to the heirs is an adequate solution. What P2 can't do can be done by the heirs.

The heir is young and does not have sufficient competencies to manage.

Solution: in this case, under the terms of management, a share in LLC "A" can be transferred to the heir upon reaching a certain age or acquiring the necessary competencies (for example, obtaining two higher education or work experience in a particular specialty).
At the same time, no one forbids transferring a share in parts. Those. the heir turned 25 years old, received 10% of the share; studied at two universities, another 10%; received work experience in a certain specialty, another 10%. Etc...
Again, it seems that the option is unfair to the minority shareholder. However, think about it, what has changed about him? Yes, of course, the minority shareholder alone keeps the company afloat, while his future perspective- deprivation of control. At the same time, the size of its share remained the same. The status quo is preserved. In addition, he gets an adequate partner who has gained experience.

After the death of one partner, the remaining one can redeem his share.

Solution: the terms of management determine the purpose of the existence of the fund - the sale of the share of the testator to one or more participants in LLC "A". The conditions also establish the cost of the share (the procedure for determining it) and the period during which the share must be sold. Thus, the remaining partner can receive an installment plan in acquiring a share from the heirs and a guarantee of non-interference in operational management on their part, and the heirs - a clear understanding of the prospects for the calculation. If the buyout conditions are not met, then the share goes to the heirs, who begin to “rule” in their own way.
In any case, for the purposes of control, the composition of the supreme collegial body (SCB) may include heirs or proxies the testator, while the SAI itself may receive the authority to approve transactions for the alienation of the fund's property.

We would like to note that one option for using the hereditary fund can always be combined with another. For example, "P2" may get the right to buy out part of the share of "P1", while the other part will be transferred to the heir gradually.

general information

The hereditary fund is established by a notary by order of the testator. The fund is created after the death of a citizen, provided that this is provided for by his will. The period for which such a fund is established may be limited. Governing bodies: executive (sole or collegiate), supreme (supreme collegial body) and supervisory (board of trustees).

The fund is created to manage the inheritance, that is, what the testator bequeathed. In addition, the assets of the foundation are income received through the use of inheritance.

The fund operates for the benefit of a third party - the beneficiary, determined either by the testator independently, or by the management bodies of the fund (if the testator so desired).

The inheritance fund does not deprive persons entitled to a mandatory share in the inheritance from receiving it, however, if such a person is the beneficiary of the fund, he is deprived of the mandatory share.

The activities of the fund are regulated by the charter and terms of management. The name should contain the words "inheritance fund". The fund may be liquidated:

by court order common grounds(for example, in connection with a gross violation of the law committed during the creation);

after the expiration of the period for which it was created;

upon the occurrence of circumstances specified in the conditions of management of circumstances;

if during the 1st year from the date of foundation of the fund, it was not possible to form its management bodies.

The property of the liquidated fund is transferred to the beneficiaries. The distribution procedure is determined in the terms of management and may depend on the amount of rights to receive property or the amount of income from the activities of the fund. The terms of management may provide for a different procedure for the distribution of property, including transfer to third parties. If it is impossible to identify such persons, the property is transferred Russian Federation.

Reorganization of the hereditary fund is not allowed.

Creation order

The decision to create a hereditary fund is taken by the founder when drawing up a will. The decision must contain information on the establishment of a hereditary fund, on the approval of the charter and management conditions, on the procedure, amount, methods and terms for the formation of the fund's property, as well as on the persons appointed to the management bodies or on the procedure for determining such persons.

Documents for the registration of the foundation are sent by a notary.

Control order

Manages an inheritance fund executive agency, sole or collegial. It may include individuals and/or legal entities, with the exception of the beneficiary.

The creation of a supreme collegial body and a board of trustees should be provided for in the charter. These bodies may include beneficiaries.

These bodies can be given broad powers, including the right to approve fund transactions. Thus, the testator is able to provide the heirs with a mechanism for monitoring the activities of the fund.

Beneficiary

The identity of the beneficiary (heir) is determined in the conditions of management. The law establishes that both specific persons (individuals or legal entities) and entire categories of persons from an indefinite circle can act in this capacity. In addition, the burden of determining the beneficiary can be shifted to the management bodies of the fund (although they must still be guided by the algorithm from the conditions). There are exceptions - commercial organization cannot be a beneficiary.

The beneficiary has the right:

demand the establishment of a foundation in accordance with the will;

receive the property of the fund in accordance with the conditions;

waive the right to receive property;

require an audit of the fund's activities;

become a member of the highest collegiate body of the fund (if it is provided for by the terms of management);

demand compensation for losses incurred due to violation of the terms of fund management.

The beneficiary and the fund are not liable for each other's obligations. The rights of the beneficiary are not alienable, do not pass by inheritance and are not transferred in the event of reorganization (except for transformation). After his death (liquidation), new beneficiaries are determined in accordance with the terms of management.

Important point! The law does not directly answer how to get out of the impasse if the conditions do not allow a new candidate to be identified. We believe that in this case there are grounds for applying to the court with a request to make changes to the management conditions, and if such changes were not made, with a request to liquidate the fund on the basis of general provisions Civil Code of the Russian Federation on funds.

2. The fund may be liquidated only on the basis of a court decision made at the request of interested persons, if:
2) the goals of the fund cannot be achieved and the necessary changes to the goals of the fund cannot be made;

Civil Code of the Russian Federation Article 123.20. Change of charter and liquidation of the fund

Recall that if, after liquidation, it is impossible to determine the person to whom the property is transferred, in accordance with a court decision, it will become the property of the Russian Federation.

Taxation

The legislator has not yet provided for any tax benefits for inheritance funds and their beneficiaries.

In addition, there are no changes related to taxation in the distribution of profits from the inheritance fund. We believe that such changes will appear in the Tax Code of the Russian Federation before September 2018. The fact is that if the heir receives property directly from the testator, such income is not taxed.

Not subject to taxation (exempted from taxation) the following types personal income:
18) income in cash and in kind received from natural persons by way of inheritance...

Tax Code of the Russian Federation Article 217. Income not subject to taxation (exempted from taxation)

It is possible that changes will be made to the Tax Code of the Russian Federation, according to which property received by the beneficiary within the limits of the initial estate will also not be taxed.

Instead of a resume

Still Russian system had no such tools. The classic inheritance constructs are simply not suitable for this. Attempts to use corporate agreements raise a lot of questions, and the creation of private funds abroad is inconvenient for doing business in life, incomprehensible from the point of view of regulation and accessible to a few categories of people.

An ancestral fund potentially provides a lot of interesting opportunities. The appearance of a new design will help solve a lot of problems: avoid corporate conflicts, take into account the interests of business, maintain the “status quo” of the remaining partner, provide heirs, and even provide an opportunity to do charity work from the other world. Maybe Russia will have its own Alfred Nobel.

Annotation: The article analyzes the changes and innovations in Russian legislation in the field of inheritance law, as well as the reasons for the inheritance reform. Also considered are the legal consequences that arise with the advent of the hereditary fund, and the prospects for the development of the fund.

Key words: inheritance fund, inheritance law, inheritance reform, changes in the Civil Code of the Russian Federation, .

On July 29, 2017, the President of the Russian Federation signed a bill on the introduction of a hereditary fund. On September 1, 2018, the law will come into force. The main provisions on the hereditary fund have already been regulated in the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation). The legislator relied on the experience of foreign countries, because in the USA, Germany, Great Britain, Austria and in many other countries such a mechanism for conducting inheritance cases is already being used. An inheritance fund is created as a way to manage property, capital, business that remain after the death of the testator. According to paragraph 1 of Art. 120.20-1 of the Civil Code of the Russian Federation, a hereditary fund is recognized as a fund created in the manner prescribed by this Code, in pursuance of a will of a citizen and on the basis of his property, a fund that manages the property received by inheritance of this citizen indefinitely or within a certain period in accordance with the conditions for managing the hereditary fund.

Thus, a citizen must provide in his will for the establishment of a hereditary fund, which will be created within 3 days after his death upon an application sent by a notary to an authorized state body on registration of a hereditary fund. A will that provides for the creation of a hereditary fund must contain the decision of the testator on the establishment of a hereditary fund, the charter of the fund, on the procedure, amount, methods, terms for the formation of the property of the fund and the conditions for managing the hereditary fund, i.e. the conditions for disposing of the property and income of the fund and information about persons who will be included in the governing bodies of the fund. All this is determined by the testator during his lifetime and cannot be changed after his death. If during the year the management bodies of the hereditary fund are not formed, then the fund is subject to liquidation. The main aspects of the new provisions on the hereditary fund. First of all, the scope of inheritance by will is expanding. The order on the creation of an inheritance fund is an integral part of the will.

Therefore, this will of the testator may restrict the exercise of the rights of heirs under the law, including the right to a mandatory share. The heirs and those participating in the activities of the foundation no longer become the direct owners of the right of ownership to objects of hereditary property. It also implies a limited targeted use of the property transferred to the foundation. Although earlier, as a rule, the heirs had unlimited possession and disposal of the objects of inheritance. Those. when a new subject of law arises, which is the hereditary fund, property legal relations of inheritance are transformed into legal obligations for participation in the management of the hereditary fund or the acquisition of property from the fund. Before the reform of inheritance law, the will provided for the will of only one person, and after the reform, only one person acts as the founder of the inheritance fund. Although already in many countries such institutions as a joint or hereditary contract are common. Under the terms of fund management, it may be allowed to transfer to third parties all or part of the property of the fund, including after the death of a citizen - the founder of the fund.

Such a provision creates the preconditions for abuses related to the alienation of the foundation's property and contradicts the fundamental rule of the last will of the testator. The legislator did not take into account the connection of the hereditary fund with many legal relations. Such legal relations remain unsettled in family law, such as the rights of a surviving spouse, relations in the field of common joint property of spouses, and others. Also, no changes were made to tax code Russian Federation, which would provide for the features of taxation of the hereditary fund. Therefore, this institution is equated to the taxation regime of all non-profit organizations, since. the hereditary fund is a legal entity with the relevant features.

Pavel Krasheninnikov, chairman of the State Duma Committee on State Building and Legislation, one of the authors of the new law, clarifies that the inheritance fund becomes one of the heirs along with the citizens or organizations specified in the will, or along with the legal heirs: “Such a rule protects the interests of the creditors of the deceased, who will be able to present claims to all accepted heirs, including the inheritance fund. And in this way, the rights of minor children of the testator and other heirs who are legally entitled to an obligatory share of the property issued to them regardless of the will are protected. For individual entrepreneurs, businessmen no longer have to transfer their assets abroad to create such a fund or trust. This is beneficial both for the testator and for the Russian Federation.

The main reasons for the appearance in the legal doctrine of such a form of inheritance as a fund were the creation of favorable conditions for subsequent inheritance, the preservation of hereditary property, and the provision of other favorable consequences. The main goal of creating a hereditary fund in the Russian Federation, according to Pavel Krasheninnikov: “To avoid losses in the period between the date of death of the testator and the receipt of a certificate by the heir, which is six months. This solves the problem of the so-called “lying inheritance” in business, when anything could happen to assets in these six months. Thus, we can conclude that the hereditary fund is a necessary innovation in Russian legislation. This reform brings Russian inheritance law in line with international standards.

1. Russian Federation. Laws. Civil Code of the Russian Federation [Text]: Part 1 [dated 11/30/1994, as amended. dated 07/29/2017] // Collection. Legislation Ros. Federation, - 1994. - No. 32. - Art. 3301 ; 2017. - No. 27. - Art. 4169.

2. Kozlova, N. Legacy on demand [Text] / N. Kozlova // Ros. gas. - 2017. - July 31.

3. Russian Federation. Laws. Civil Code of the Russian Federation [Text]: Part 3 [dated 11/26/2001, as amended. dated 03/28/2017] // Collection. Legislation Ros. Federation, - 2001. - No. 49. - Art. 4552 ; 2017. - No. 14. - Art. 1998.

4. Russian Federation. Laws. On amendments to parts one, two and three Civil Code Russian Federation [Text]: [dated 07/29/2017] // Collected. Legislation Ros. Federation, - 2017. - No. 31. - Art. 4808.

5. Russian Federation. Supreme Court. Plenum. ABOUT judicial practice on cases of inheritance [Text]: post.: [dated May 29, 2012 No. 9] // Ros. gas. - 2012. - June 6.

6. Vasiliev A. S. Comments on the Civil Code of the Russian Federation. Part 1, 2, 3, 4 [Text] / Ed. S. A. Stepanova. M., 2010.

Gretsova Alexandra Evgenevna

Tags: , Previous post
Next post

Russian President Vladimir Putin signed the law "On Amendments to Parts One, Two and Three of the Civil Code of the Russian Federation". It involves new opportunities for the disposal of property, in particular, in the order of inheritance. AiF.ru highlighted the main changes.

What changed?

The main innovation in the order of inheritance of property is the creation of the institution of hereditary funds. It will enhance the ability of citizens to manage their property, business and capital, which will remain after death.

The innovation is aimed at preserving the business and other assets that immediately after the death of the testator will be transferred to the management of the fund. Thanks to this, it will be possible to avoid losses that occur in the six months between the date of the death of the testator and the receipt of the certificate by the heir. That is, these innovations will be of interest primarily to wealthy Russians who are thinking about who will receive their property.

How is a fund established?

The decision to establish a foundation is made by a citizen when drawing up a will. This document details the conditions for the functioning of the fund: its size, the timing of the formation of property, the conditions for disposing of funds, the persons who are part of the bodies of the fund, etc. All this is determined by the testator during his lifetime and cannot be changed after his death.

The foundation is established after the death of a citizen. The notary conducting the inheritance case, during three days from the moment of opening such a case, he must send an application for registration of the hereditary fund to the authorized state body. The application is accompanied by the decision of the testator on the establishment of the fund, where all the conditions are indicated.

How does this affect the interests of the heirs?

The inheritance fund becomes an equal heir along with the citizens or organizations specified in the will, or along with the legal heirs.

The innovation protects the interests of the creditors of the deceased, who will be able to present claims for the payment of debt to all heirs who have accepted the inheritance, including the inheritance fund - that is, they can recover money from the fund, and not from other heirs. In general, all the property of the deceased will now be able to transfer to the fund, from which it will already be issued to the individuals or legal entities specified in the will.

Also, the creation of a hereditary fund protects the rights of minor children of the testator - they can receive money from the fund for a certain period and from certain periodicity. In general, this will allow wealthy citizens to be sure that the wealth that has fallen on their young offspring will not break their lives.

How will the fund exist?

The fund's property may be replenished in the course of the fund's activities, including through income from property management.