“Bankruptcy and inheritance” — Inna Vavilova’s article in “Delovoy Peterburg”
Often the laws and practice of their application resemble the battlefield, where it is not clear where to dig trenches. Often the problem is that the new norm has more questions than answers.
And you need the answers. Business requires specific legislative solutions and stable practice.
A simple example is competition in related areas such as bankruptcy and inheritance. The latter is particularly relevant, if we talk about individuals, beneficiaries and business owners.
On the one hand, the regulation of inheritance is now simplified. The idea in the civil code is simple: if an individual dies, notary opens an inheritance case, and the heirs have 6 months to claim their rights and to inherit. The family status of the testator may make adjustments to this process (under the regime of joint ownership only half of the common property goes to the inheritance estate), and the content of the will, which is not known to anyone before the opening of the inheritance case.
On the other hand, the provisions on bankruptcy of natural persons, which have been in force for more than two years, do not say directly how the rights and obligations of persons involved in bankruptcy are affected by the fact of the opening of the inheritance.
What if dying a bankrupt individual? Is it necessary to suspend the bankruptcy proceedings? Whether it is necessary to involve successors, the notary, the executor when and in what quality?
The bankruptcy law says that bankruptcy proceedings are not suspended, but does not clarify the legal status of the testator, heirs, notary, executor and persons involved in bankruptcy. Therefore, the courts doubt and believe that under the general rules on succession it is necessary to do otherwise.
Analysis of the rules on bankruptcy and inheritance leads to the conclusion that the debtor in bankruptcy and heirs legal status is different. Consequently, the question of succession should not arise. Moreover, in the Basics of the law on notary stated that in the presence of bankruptcy proceedings of the testator the issuance of a certificate of inheritance is suspended until the end of the proceedings in the said case. That is, indirectly also confirms the priority and independence of the bankruptcy procedure initiated before the opening of the inheritance.