Inheritance fund
Starting in September 2018, the Civil Code will introduce new rules on the probate of business management. The indicated opportunity can be realized by creating a hereditary fund during the lifetime.
To whom and for what purpose can a hereditary fund be created?
In practice, there are frequent cases when a successful business developed by hard work is sold for nothing or is crushed and wasted after the death of its owner. To preserve the assets, the owner will soon have the opportunity to form a hereditary fund, determining in life the fate of the business, the mechanism for managing it.
The fund under consideration is a non-profit organization that begins to manage the inherited property - business - transferred to it immediately after the death of the testator. There is no waiting period necessary to accept the inheritance. Property management, depending on the will of the testator, can be carried out indefinitely or until the time indicated in the will.
The practice of functioning similar to the inheritance fund of legal entities abroad.
The formation of funds for the preservation of business assets is provided for in a number of countries in Europe and America. Such organizations are mainly engaged in charitable activities, provide grants (funds of Alfred Nobel, Henry Ford). In this they differ significantly from the institute of the hereditary fund developed for Russia. In addition, foreign funds are often created during the lifetime of their founders.
European funds differ from those expected in our country in a number of other indicators: they are not so much connected by the will of the founder in the field of property management, they have authorized capital, they are distinguished by a simpler creation process, often anonymity. Control over such organizations is carried out by the state.
The order of formation of the hereditary fund.
An open testament is the only way to transfer business to an established fund. In addition to the will of the foundation itself, such a document should include the charter of the organization and the will of the testator regarding its management. Three working days from the moment of opening the inheritance are allocated to the notary for registration of the fund.
The created fund accepts the property transferred to it, for which the notary issues him a certificate of inheritance. The peculiarity of the property stock of the fund is that it cannot be replenished due to the free transfer of assets by other persons.
In the procedure under consideration, it is also assumed that there is a special entity defined by the testator of the “beneficiary of the fund” or another undefined person. The legal status of beneficiaries is enshrined in Art. 123.20-3 of the Civil Code of the Russian Federation. These persons (practically all participants of the civil turnover, except for commercial organizations), at the will of the testator, can obtain rights to the property of the fund in whole or in part.
The rights of beneficiaries shall not be inherited and shall not pass in succession to other organizations, unless the testator has expressed another will. Of interest is the inalienability of the rights of the beneficiary, the inability to foreclose on them.
Heirs who have the right to receive an obligatory share in the inheritance and are appointed by the beneficiaries, have the right at their discretion to either refuse the obligatory share and maintain the status of the beneficiary, or refuse the role of the beneficiary with the risk of reducing the size of the share due to them in court.
The inheritance fund management mechanism cannot be disclosed to third parties. The exception is the beneficiaries and, in some cases, the authorities. The charter defines the composition of the governing bodies: the highest, sole or collective executive body, the board of trustees. The formation of such bodies is provided by a notary public.
The reasons for the liquidation of the inheritance fund may be the urgency of its creation, the lack of management opportunities or a court decision if there are grounds provided for in sub. 1 - 4 p. 3 Article 61 of the Civil Code of the Russian Federation. After liquidation, property is transferred to beneficiaries in accordance with the will of the testator.
Place of inheritance fund in the system of legal entities.
The introduction of such a subject of civil law as the inheritance fund entailed changes not only in the rules on inheritance, but also in the rules on legal entities. At the same time, regulation is carried out both by general provisions on funds, and by special rules in relation to this legal entity.
According to the goals of creation, the fund is difficult to attribute to non-profit organizations. Differences from other legal entities consist in the fact that property is not entered into it voluntarily; a special management procedure, the contents of the charter and the fate of property upon liquidation are determined by the will of the testator.
So, in the structure under consideration, practically nothing remained of the fund as a non-profit organization, which allows us to conclude that it is a separate legal position among legal entities.
Advantages and disadvantages of the legal structure of the estate.
1. An undoubted advantage should include the possibility of a future testator concerned about the fate of his business to ensure the safety of his case after death, not only for transfer to heirs, but also, for example, for future charity work.
2. From the moment of formation of the hereditary fund, the person who created it and has significant assets can provide its heirs with everything necessary. It is sufficient to indicate, for example, minor children as beneficiaries. The beneficiary may not be the heir and in any case is not liable for the obligations of the fund.
3. A plus is the ability to pay the debts of the testator formed by the hereditary fund, which from a legal point of view is one of the heirs.
4. Perhaps the most significant drawback of the legal structure under consideration is its insufficient inclusion by the legislator into the general system of Russian inheritance law. The exclusion of legal conflicts will require amendments to the rules on the right of ownership of spouses, on the rights of creditors of the testator, a number of changes will be introduced to the legislation on notaries. In addition, questions of the taxation of the fund remained behind the scenes.
5. A problem will arise if the fund bequeathed property located outside the Russian Federation. Recognition of a certificate of inheritance will be difficult because our country has not acceded to a large number of international conventions on inheritance. In this regard, bequeathing to the hereditary fund property settled abroad is not yet recommended.
6. The rules on the possibility of reducing the amount of the mandatory share of heirs in the almost arbitrary opinion of the judge will cause a lot of disputes and heterogeneous practice.
7. The last but important drawback in expressing the will to create a hereditary fund is a large number of questions that the testator will have to answer. In this case, one can not do without qualified legal assistance both in the formation of will, and in drawing up the charter of the fund, and in determining the procedure for managing it.
September 10, 2018
David Glikshtein
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