The INHERITANCE: the rights to the apartment... - news on real estate, Kiev, Kyiv region. Real Estate In Ukraine
When it comes to inheritance, the first thing that comes to mind is the acquisition of rights to...Credit a legacy: what to do with it?When it comes to inheritance, the first thing that comes to mind is the acquisition of rights to an apartment, a car, or even a small Deposit in the Bank.Debt is a legacy tooBut, unfortunately heirs, the testator leave them not only material goods, but also debts. And if there is debt, then soon will definitely make themselves known and the lender, which will require the return of the debt.Today, during the rapid growth of the market of crediting of individuals, often those creditors are banks. And after the death of the debtor's Bank account there is not a rhetorical question, "What to do". And, as practice shows, the answers are radically opposite from the requirements for the heirs to sign a Treaty on the transfer of debt under the credit agreement to a debt relief with reference to article 608 of the Civil code (GK) on the basis that the obligation is indissolubly linked with the personality of the debtor, and ends with his death.Must or must not?To determine whether the commitments are terminated under the credit agreement after the death of the debtor, need to figure out whether it can be attributed to closely related to the personality of the debtor. The concept of obligations is inextricably linked with the personality of the debtor, the GC does not disclose, however, a number of articles provides explicitly for the cases of termination of obligations in connection with the death of the debtor: article 781 вЂ” termination of the contract of employment in connection with the death of the employer unless otherwise provided by contract or law; article 835 вЂ” death of a things user under the contract of loan; article 1008 вЂ” termination of this contract in the event of death of the principal or attorney, etc.Generalizing these examples, we can conclude that the identity of the debtor to the creditor matters because it penetrates the carefully whether the debtor will apply to property granted to him, considers the relationship between him and the debtor, because it provides a thing for uncompensated use than the debtor has the service evaluates the quality of the debtor, when trusts to represent him in certain relations. At the same time the credit contract is public in nature. The conclusion is that the repayment of a debt on a credit contract is not closely related to the personality of the debtor.Pay someone haveHence, if the obligation is not terminated, but continues to exist, there must be a new debtor. Options banks offer two вЂ” or they will have an heir or a third person, voluntarily agreed to pay the debt of the deceased debtor under certain reasons. With one of these persons, the Bank enters into a contract to transfer the debt (with which I fundamentally disagree, but more on that below).I believe that right to a third party to replace the deceased debtor is impossible, because the obligation to pay the debt under the credit agreement is part of the inheritance (estate) and must first go to the heir, and the heir can transfer the debt to another person. Article 1216 of the civil code States: "Inheritance is the transfer of rights and duties (inheritance) of the deceased individual (the testator) to other persons (heirs).After asking, now who should be responsible for the performance of an obligation occurs very practical question, how to replace a face in the undertaking or, in the worst case, with the requirement to go to court. In this situation, banks are by contract of transfer of debt. In this argument, such that GK (article 520) the replacement of the debtor in the obligation is as of debt.But although the GC and points of replacement of the debtor only in the context of transfer of a debt, however, and does not prohibit other grounds replacement of the debtor. As is known from the theory of civil law, one of his principles вЂ” optionality, i.e. the ability to perform the actions, which although not expressly provided for by civil law, but not contrary to it and conform to its General principle.By the way, the same thought regarding the transfer of debt is not the only basis of the replacement of the debtor in the obligation, and the debtor may be replaced in connection with inheritance, met in the commentary to the CC under the editorship of Jeri O. V., Kuznetsova N. S., Lucia V. (volume 2, p. 19).It is therefore not necessary to consider the change of the debtor transfer duty, but rather replacement of the debtor in connection with the occurrence of the obligation to repay on the basis of the inheritance. It should be remember and article 11 GC: among the grounds of civil rights and obligations it discusses the legal facts, which is the acceptance of the inheritance.So, to the heir on the basis of its acceptance of the inheritance becomes the duty of the testator to the Bank. However, we must remember that the deadline for acceptance of inheritance is six months. During this period, to apply to a notary office of the inheritance and the refusal of his heirs may many times. So, unfortunately, the Bank will have to wait six months until determined by the circle of heirs and they will receive their certificate of inheritance.Otherwise the Bank is not immune to the fact that after the adoption of the inheritance (including debt obligations), the heir to renounce it and will require the Bank to return funds paid. But banks need to be careful not to miss a period of six months from the day when it became known or could have become aware of the opening of the inheritance, for the presentation of their claims to the heirs who have accepted the inheritance.In addition, the Bank is entitled to demand the payment of interest on the loan from the new debtor are not from the date of voluntary assumption of debt or on the date the court's decision, and since the death of the testator, as in accordance with part 5 of article 1268 of the civil code inheritance (but the obligation to pay interest is also inheritance) belongs to the heir from the time of opening the inheritance, that is, from the death of the testator.Since Bank loans are mostly secured (most often it is the guarantee and surety), the question arises about the future of security obligations. In accordance with article 523 of the civil code the bail or bond set by another person, is terminated after the replacement of the debtor, if the guarantor or the pledgor agreed to enforce the obligations of the new obligor.It is logical that the consolidation of this rule due to the importance of personality debtor to the surety or guarantor of property, ensuring its property execution by the debtor.To at least partially reduce the negative consequences for the Bank, when the loan remains unsecured, in loan agreements appropriate to provide for early implementation of the commitments under the credit agreement in case of termination of the contract of guarantee or collateral if, during the Bank's period a new debtor will not create a new agreement enforcement obligations.There is hope that the new debtor on this point will be the property due to which it will be possible to meet the requirements of the Bank, because in any case the heirs to satisfy the creditor's claim within the value of property acquired by inheritance (article 1282 of the civil code).Pledge the same, established by the testator, is not terminated, but continues to exist. And it does not matter which one of the heirs to transfer title to the collateral, since in accordance with article 27 of the Law of Ukraine "On pledge" the pledge remains in force, if the property or property rights that constitute collateral, shall become the property of another person. But in the Law of Ukraine "On mortgage" generally singled out the case where the ownership of the mortgaged property passes to the heir.Thus, article 23 of the Law States that in case of transfer of ownership (right of economic management) of the mortgaged property from the mortgagor to another person, including by way of inheritance or succession, the mortgage is valid for the acquirer of the immovable property, even if his knowledge is not informed about the encumbrance of the mortgage.In the perspective of the topic, to recall the succession of Bank deposits (deposits). In practice, banks raises the question of whether to charge interest on a Bank Deposit after the death of its owner. If so, there are often situations when the notary sends a request belonging to the testator the sum of Bank Deposit and accrued interest, and the Bank is providing this information as of the date of the request.Notary certificate of inheritance, said these amounts. Some time later, the heir come get him the proper amount, but during this time the amount of interest increases. The Bank cannot give more value than indicated in the certificate of inheritance, at the same time, there is no reason to usurp the difference in percent.The obligation of the lender in the Deposit agreement also is not closely related to the personality of the debtor (for the same reasons as in the credit agreement), after the death of the lender it does not stop.