The hereditary fund as a novel of Russian civil law. What are inheritance funds and are they dangerous for heirs? Differences between domestic and foreign funds

"4. In the event of the creation of a hereditary fund (Article 123.20-1), the decision to establish a hereditary fund is made by a citizen when drawing up his will and must contain information about the establishment of a hereditary fund after the death of this citizen, about the approval by this citizen of the charter of the hereditary fund and the conditions for managing the hereditary fund , on the procedure, amount, methods and terms for the formation of the property of the hereditary fund, on the persons appointed to the bodies of this fund, or on the procedure for determining such persons.

After the death of a citizen, the notary conducting the inheritance case sends to the authorized government agency statement about state registration of the hereditary fund indicating the name or title of the person (persons) exercising the powers of the sole executive body fund.";

2) in article 123.17:

a) Clause 3 shall be supplemented with the words "as well as laws establishing the grounds and procedure for the reorganization of the fund";

b) add paragraph 5 with the following content:

"5. Legal status inheritance funds is determined by this Article and Articles 123.18 - 123.20 of this Code, taking into account the specifics provided for by Articles 123.20-1 - 123.20-3 of this Code.";

3) subparagraph 1 of paragraph 7 of chapter 4 shall be supplemented with articles 123.20-1 - 123.20-3 as follows:

"Article 123.20-1. Creation of an inheritance fund, conditions for its management and its liquidation

1. A hereditary fund is 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, which carries out activities for managing the property of this citizen received by inheritance for an indefinite period or for certain period in accordance with the conditions of management of the hereditary fund.

2. The hereditary fund is subject to creation after the death of a citizen who provided for the creation of a hereditary fund in his will, upon an application sent to the authorized state body by a notary conducting the inheritance case, with an application to the application drawn up during the life of the specified citizen of his decision on the establishment of a hereditary fund and approved by this citizen of the charter of the fund and after its creation is called for inheritance by will in the manner prescribed by Section V of this Code.

A will, the terms of which provide for the creation of a hereditary fund, must include the decision of the testator on the establishment of a hereditary fund, the charter of the fund, as well as the conditions for managing the hereditary fund. Such a will must be notarized.

A hereditary fund may be created on the basis of a court decision at the request of the executor or beneficiary of the hereditary fund in the event that the notary fails to fulfill the obligation to create the hereditary fund.

The notary conducting the inheritance case is obliged to send an application for state registration of the inheritance fund to the authorized state body no later than three working days from the date of opening the inheritance case after the death of the citizen who provided for the creation of the inheritance fund in his will. The hereditary fund is not subject to registration after one year from the date of opening of the inheritance.

(see text in previous edition)

The actions of a notary in creating a hereditary fund may be disputed by the beneficiaries of the hereditary fund, the executor or heirs, if the notary violates the instructions of the testator contained in the will or decision on the establishment of the hereditary fund regarding the creation of the hereditary fund and the conditions for managing it.

3. The property of the hereditary fund is formed when the fund is established, 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 of property by other persons to the hereditary fund is not allowed.

When creating a hereditary fund and accepting an inheritance, the notary is obliged to issue a certificate of the right to inheritance to the fund within the time period specified in the decision to establish the hereditary fund, but no later than the time period provided for by Article 1154 of this Code. If the notary fails to fulfill these obligations, the hereditary fund has the right to appeal against the inaction of the notary.

4. The conditions for managing the hereditary fund must include provisions on the transfer to certain third parties (hereinafter also referred to as the beneficiaries of the fund) or certain categories of persons from an indefinite circle of persons (hereinafter referred to as certain categories of persons) of all or part of the property of the hereditary fund, including occurrence of circumstances, regarding which it is not known whether they will occur or not.

The terms of management of the hereditary fund may provide that the beneficiaries of the fund or certain categories of persons to whom the property of the fund is subject to transfer are determined by the bodies of the fund in accordance with the terms of management of the fund.

The procedure for transferring to beneficiaries of a hereditary fund or certain categories of persons all or part of the property of the fund, including income from the activities of the fund, must be determined by the conditions for managing the fund by indicating the type and size of the transferred property or the procedure for determining the type and size of property, including property rights (for example, the right to use property, the right to pay for work, services provided by third parties to beneficiaries or certain categories of persons), the term or frequency of the transfer of property, as well as the circumstances upon the occurrence of which such transfer is carried out.

5. The charter of the hereditary fund and the conditions for managing the hereditary fund cannot be changed after the creation of the hereditary fund, with the exception of a change on the basis of a court decision at the request of any body of the fund in cases where the management of the hereditary fund under the previous conditions became impossible due to circumstances that arose during the creation fund could not be assumed, as well as in the event that it is established that the beneficiary is an unworthy heir (Article 1117), unless this circumstance was known at the time of the creation of the hereditary fund.

6. The conditions for managing the hereditary fund before the notary sends the application specified in paragraph four of clause 2 of this article shall be brought to the attention of the persons who are members of the bodies of the fund, and may be disclosed only to beneficiaries, as well as in cases provided for by law to state authorities and local governments .

7. The liquidation of the hereditary fund is carried out by a court decision on the grounds provided for in subparagraphs 1 - 4 of paragraph 3 of Article 61 of this Code, as well as in connection with the onset of the period before the expiration of which the fund was created, the occurrence of the circumstances specified in the conditions for managing the hereditary fund or the impossibility of forming bodies fund (clause 4 of article 123.20-2).

The property remaining after the liquidation of the hereditary fund is subject to transfer to beneficiaries in proportion to the scope of their rights to receive property or income from the activities of the fund, unless the conditions for managing the hereditary fund provide for other rules for the distribution of the remaining property, including its transfer to persons who are not beneficiaries. If it is not possible to determine the persons to whom the property remaining after the liquidation of the hereditary fund is to be transferred, such property, in accordance with a court decision, is subject to transfer to the ownership of the Russian Federation.

8. The name of the hereditary fund must include the words "hereditary fund".

Article 123.20-2. Inheritance fund management

1. As the sole executive body of a hereditary fund or a member collegiate body The hereditary fund may be an individual or a legal entity. The beneficiary of a hereditary fund cannot act as the sole executive body of the fund or a member of the collective executive body of the hereditary fund.

2. In the cases provided for by the charter of the hereditary fund, a supreme collegial body and a board of trustees are created in it. The beneficiaries of the fund may be members of the supreme collegiate body of the hereditary fund.

3. Before the notary sends the application for state registration of the hereditary fund to the authorized state body specified in paragraph four of clause 2 of Article 123.20-1, the notary offers the persons specified in the decision on the establishment of the fund, or the persons who can be determined in the manner established by the decision on the establishment fund, become a member of the bodies of the fund. With the consent of these persons to join the bodies of the fund, the notary sends information about them to the authorized state body.

If the person specified in the decision to establish a fund refuses to join the bodies of the fund and it is impossible to form the bodies of the fund in accordance with the decision to establish the fund, the notary is not entitled to send an application to the authorized state body for the creation of a hereditary fund.

4. The replacement of members of the collective bodies of the hereditary fund and the person exercising the powers of the sole executive body of the hereditary fund is carried out in the manner prescribed by the charter of the fund. The charter of the fund may provide for the procedure for determining the members of the collegiate bodies of the fund and the person exercising the powers of the sole executive body of the hereditary fund, in the event of their retirement, including the sub-appointment of these persons from a specific list.

If within a year from the date of the need to form the bodies of the hereditary fund (lack of a quorum in the collegiate bodies of the fund, absence of a sole executive body) such bodies are not formed, the fund is subject to liquidation (paragraph 7 of Article 123.20-1) at the request of the beneficiary or the authorized state body. Until the expiration of the specified period, the sole executive body of the hereditary fund (if there is such a body) continues to carry out the activities of the hereditary fund in accordance with the conditions for managing the hereditary fund.

5. The conditions for managing the hereditary fund may provide for the procedure for payment and the amount of remuneration to the person exercising the powers of the sole executive body of the fund, members of the fund's board of trustees or members of other bodies of the fund for the performance of their duties.

6. The charter of the fund may provide for the need to obtain the consent of the supreme collegial body of the fund or another body of the fund for the conclusion by the hereditary fund of the transactions specified in the charter.

7. An audit of the activities of the hereditary fund is carried out on the grounds provided for by the conditions for managing the hereditary fund, as well as at the request of the beneficiary in the manner prescribed by paragraph 5 of Article 123.20-3 of this Code.

8. The sole executive body of the hereditary fund is obliged to keep the charter of the fund and the changes and additions made to it, which are registered in the prescribed manner, the decision to establish the fund, documents confirming the rights of the fund to its property, a document containing the conditions for managing the hereditary fund, annual reports, documentation accounting, documents of accounting (financial) statements, minutes of meetings of collegiate bodies of the fund, reports of appraisers, conclusions audit commission(auditor) of the fund, auditor of the fund, state and municipal bodies financial control, judicial acts on disputes related to the management of the fund, other documents provided for by this Code, the charter of the fund and the conditions for managing the hereditary fund.

2. The beneficiaries of the hereditary fund may be any participants in relations regulated by civil law, with the exception of commercial organizations.

3. The rights of a citizen beneficiary of a hereditary fund shall not be inherited. Rights of the beneficiary - legal entity are 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.

After the death of the individual beneficiary or the liquidation of the beneficiary - a legal entity, as well as in the case of a declaration to the hereditary fund in notarial form refusal of the beneficiary from the right to receive property, new beneficiaries are determined in accordance with the conditions for managing the inheritance fund, in particular, they can be determined by sub-appointment.

4. In the cases provided for by the charter of the hereditary fund, the beneficiary has the right to request and receive from the hereditary fund information about the activities of the fund.

5. The beneficiary of the hereditary fund has the right to demand an audit of the activities of the fund by an auditor chosen by him. In the case of such an audit, payment for the auditor's services is carried out at the expense of the beneficiary of the hereditary fund, at the request of which it is carried out. The expenses of the beneficiary of the fund for paying for the services of an auditor may be reimbursed to him by decision of the Board of Trustees at the expense of the fund.

6. In case of violation of the terms of management of the hereditary fund, which caused the beneficiary to suffer losses, the latter has the right to demand their compensation, if this right is provided for by the charter of the fund.

7. The beneficiary is not liable for the obligations of the hereditary fund, and the fund is not liable for the obligations of the beneficiary.".

From September 2018, a new concept will appear in legal terminology - an inheritance fund. We propose to understand what it is and who will benefit from its creation?

By justice

The changes made to parts 1, 2 and 3 of the Civil Code of the Russian Federation provided Russians with new opportunities for disposing of property after death. The Law on the Inheritance Fund (NF) will allow you to manage the savings, property and business of the deceased as efficiently as possible.

Any citizen has the right:

create a special form of inheritance management during the preparation of a will;

determine the conditions for the functioning of the NF after his death, including who will manage it and how income will flow into it;

approve the charter;

describe the procedure, volumes and ways of replenishing assets;

indicate the managers and the procedure for their appointment;

set the lifetime of the NF.

Important! Everything that the testator determines during his lifetime, after his death, is subject to change only in some cases and exclusively through the court.

In fact, the foundation becomes one of the heirs. For all material values received by the fund will be able to claim the rights:

relatives, including those entitled to a mandatory share;

creditors.

The mechanism will not allow the testator to take advantage of the imperfection of the legislation and hide part of the property from those who have the right to inherit it. It will also ensure the safety of assets, which is not easy to do without NF if the heirs are elderly parents, spouses or minor children who are unable or unwilling to manage the family business.

How it works?

According to the new law, the hereditary fund begins to function after the death of the testator, who during his lifetime resolved all organizational and legal issues regarding the organization of a special form of management and preservation of the business.

After death, the duties of a notary include:

within 3 days, submit an application for the opening of the NF along with a will confirming this to the Ministry of Justice;

give the foundation papers confirming its rights to the inheritance (the time for issuing documents is determined by the testator, but according to Article 1154, he cannot delay the terms for more than six months).

The property of the NF throughout the entire period of its existence will be replenished through effective management. Receipts will be paid one-time or regularly to a circle of persons who will be listed by the testator. These can be both family members and complete strangers, for example, company employees or hospital staff. Thus, after death, a person will provide financial support to those whom he considers worthy.

On a note! If the will of the deceased was charity, then the board of trustees of the NF will be able to determine the circle of persons for the payment of grants or scholarships.

What rights and obligations does the beneficiary (the one who claims the property of the NF) receive:

his rights are not subject to alienation and are not inherited;

cannot repay its debts at the expense of the assets of the NF;

has the opportunity to receive funding on the basis of the conditions prescribed by the deceased;

information about the activities of the fund is open to him;

may apply to the court to challenge the form of government and other aspects of the work of the NF;

does not have the right to single-handedly manage the NF;

he is allowed to oversee important transactions and other activities of the fund.

Solving the problem of "lying inheritance"

Clearly explained to readers Russian newspaper», what is a legacy fund, one of the authors of the bill Pavel Krasheninnikov, chairman of the Duma Committee on State Building and Legislation.

In particular, he mentioned the solution to the problem of "lying inheritance", when property and any assets are actually "frozen" for six months. That is how much passes from the moment of death of a person until the day of receipt of a certificate of inheritance by his relatives. During this period, anything can happen to a business, and competitors often take advantage of this "mess". The new tool allows not only to preserve, but also to develop the business by transferring it to the fund.

Before Putin signed the law on the inheritance fund, businessmen could only create an NF abroad, which required transferring assets abroad. Now an effective tool is available in Russia. Entrepreneurs will be able to keep the business in home country, and with it jobs, thus having a favorable impact on the development of the economy. The step to create a new tool is especially important in the context of anti-Russian sanctions.

On a note! The ability to establish inheritance funds exists in the United States, Britain, Germany, Austria and a number of other states.

I remembered Krasheninnikov and the brightest historical examples institutions of inheritance funds:

Nobel - all known prizes to Nobel laureates are paid from it;

Ford, which contains all the assets of the well-known carmaker Ford;

Bosch - this name is well known to Russians by the popular brand household appliances, but it turns out that the fund, thanks to dividends from shares, supports developments in medicine, science and culture.

The innovation was also discussed at the September meeting of the president with the business community. Undertaken, in general, supported the idea, emphasizing its relevance "for wealthy people" in connection with the processes of deoffshorization. However, many agreed that they would like to participate in the creation of the NF and its control during their lifetime.

There are concerns about efficiency new system inheritance and from the tax authorities. There is no special taxation system for NF in Russia yet, which means that the possibility of paying double taxes on capital cannot be ruled out.

It remains to be said about last moment: the hereditary fund is of little interest to ordinary people. They dont have big business and such accumulations that after death it was required to create a special organization that would preserve and increase capitals.

For ordinary citizens, it would be more interesting to adopt a bill on the mandatory sale of real estate inherited by several owners. It was submitted to the State Duma in the spring of 2016, and if it had been adopted, there would have been fewer family squabbles and fraudulent schemes when one of the owners of housing with an inherited share in the apartment survives from the living space of the others.

From September 1, 2018, Russia will be able to create domestic "Nobel funds"

Federation Council On July 25, a law providing for the possibility of creating special inheritance funds in the country. They will be used to transfer property by inheritance, similar to foreign funds.

The document, in particular, expands the opportunities for citizens to dispose of their property after death. Appropriate changes are made to the Civil Code.

“The hereditary fund is a way to manage the hereditary mass, that is, money, business and other assets that remain after the death of the owner,” the author of the document, head of the Duma Committee on State Building and Legislation, told Parliamentary Newspaper. “The fund is created by those people who think about how to save their business and who will subsequently manage their assets.”

In fact, all inherited property will now be accumulated in the fund immediately after the death of the owner.

According to the law, the fund will be established by a notary after the death of a citizen, with the subsequent transfer of hereditary property there. The notary must act in accordance with the will of the testator specified in the will. Therefore, the owner of the state should take care in advance of drawing up a document that will contain information on the establishment of the hereditary fund, on the approval of its charter and management conditions, on the procedure, amount, methods and terms for the formation of the property of the hereditary fund, as well as on the persons appointed to the composition of the bodies of this fund, or on the procedure for determining such persons.

After the death of a citizen, the notary must, within three working days, send to the authorized state body an application for registration of the hereditary fund indicating the name of the individual or the name of the legal entity that is entrusted with the management of the fund.

In fact, all inherited property will now be accumulated in the fund immediately after the death of the owner. Previously, the heirs had to wait up to six months for the entry into the right of inheritance, and during this time anything could happen to the business or other assets. From the property transferred to the foundation, or from the income from the management of the foundation's property, disbursements will be made to the persons indicated in the will. These may be family members of the testator, various organizations or citizens who are not the heirs of the deceased.

According to a member of the Executive Committee of the Guild of Russian Lawyers Yuri Platonov, new institute will help wealthy people to gain confidence that their offspring will not go around the world after the death of their parents and will remain secure until the end of their days.

The management of the fund must be carried out indefinitely or within a certain period in accordance with the conditions specified in its charter.

Funds-philanthropists

Currently, it is possible to establish inheritance funds or trusts in many countries of the world. Special laws exist in Europe, for example in Austria.

As a rule, such funds are created abroad by businessmen and very rich people. At the same time, this is done not only in order to support relatives after their death. Often they are driven by a desire to benefit society: funds from the fund can be spent in the interests of their native university, city, country or all of humanity. The most famous such ancestral fund is the Nobel fund.

“Since we had no opportunity to create such funds before, Russian businessmen established them abroad and transferred their assets there,” Pavel Krasheninnikov explained. “Therefore, this law is also a big anti-offshore measure.”

In other words, the adopted novelty allows you to save investments, money, assets and jobs in the country. At the same time, people who do not have a business, but have, say, several apartments, can also establish inheritance funds. The law does not establish any property qualification. However, it should be understood that fund management is costly. As a rule, the funds for this come from the estate.

The most famous inheritance funds

Nobel Foundation

It was created on June 29, 1900 according to the will of the Swedish inventor Alfred Nobel. The scientist took 94 percent of the state (31 million SEK) for the annual payment of five prizes: in the fields of physics, chemistry, physiology and medicine, literature and peace. The basic part of the fund is invested, only profits go to premiums. In 2016, the award amounted to $1.1 million.

Ford Foundation

On January 15, 1936, Edsel Ford, son of Henry Ford, founded the Ford Foundation, giving him the first $25,000. After Edsel's death in 1943 and Henry's in 1947, the foundation received all of their funds and the assets of the Ford Motor Company. The 15-member board of trustees is chaired by Henry Ford Jr., the grandson of the company's founder, with new members elected by the board itself. By 1974, the fund had sold the car company and started investing. The Ford Foundation is now one of the largest philanthropic organizations in the world with $11.9 billion in assets.

Velcom Foundation

On July 25, 1936, after the death of the founder of the British pharmaceutical holding Welcome Henry Welcom, all of his assets were transferred to the Welcome Trust. It now operates as a non-profit organization with £18 billion in assets, through which it sponsors medical developments.

Bosch Foundation

On June 26, 1964, based on the will of the founder of the German concern Bosch, the Robert Bosch Foundation was created. The fund owns 92 percent of the group's shares and is financed by its dividends. Since its inception, the foundation has provided more than one billion euros in grants in education, medicine and culture.

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 hereditary fund is subject to creation after the death of the testator upon an application sent to the authorized state body by a notary conducting the inheritance case. 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's single out the following aspects 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 a legal entity and has the features 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 main provisions on the legal personality of persons of this organizational form, the goals of the hereditary fund are defined as charitable, cultural, educational or other social, socially useful goals. 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 structure for creating a fund by an individual on the basis of hereditary property has a certain similarity with funds that are widespread in legal systems. 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. The 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 - proxies. 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 a significant amount of the 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. Minimum size 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 priority right to a mandatory share of heirs and (or) a priority right for regular payments to the beneficiary over 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, which are not subject to publication in the 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 of property by other persons to the hereditary fund is not allowed. When creating a hereditary fund and accepting an inheritance, the notary is obliged to issue a certificate of the right to inheritance to the fund within the time 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.

There is no legal connection between the fact of the emergence of the legal personality of a Russian fund during its state registration and the 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 the right to inheritance of the 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. General position 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 authorized body the notary decides on the formation of the fund's bodies. If such bodies are not formed during the year (lack of a quorum in the collegiate 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 according to the Sechs Augen Prinzip principle, that is, consisting of at least three individuals. 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 Council member 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 of the Financial Market in the form of control over the annual accounts of the fund. Supervision is considered as a means of ensuring the principles of inseparability and static nature, as well as ensuring transparency in public useful activity fund.

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 expected;
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 right of a 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 legislation, it stands out the following benefits for 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 means of protecting future generations from fragmentation of the community of 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 may secure future pension payments to certain persons from the enterprise that 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 of favorable conditions for subsequent inheritance, the preservation of hereditary property, the provision of other favorable civil and tax consequences in the transfer of rights to hereditary property to heirs. Therefore, when choosing a European fund as a legal means for the transfer of inheritance property by interested parties, notaries and lawyers, 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 above circumstances may determine the degree of investment attractiveness of the hereditary fund, and therefore the desire of residents of the Russian Federation to choose a fund under the jurisdiction of the Russian Federation as a form of inheritance. 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 instance, individuals- the beneficiaries of the fund are exempt from inheritance and gift tax, and the fund - from tax on capital and shares. The fund's income tax is 12.5% per annum, but not less than 1,100 EURO. At 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 issues of 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)

MOSCOW, July 20 - RIA Novosti. The State Duma adopted in the third reading a bill that provides for the possibility of creating special hereditary funds in Russia that can be used to transfer property by inheritance, by analogy with Western European funds.

Inheritance funds, by analogy with Western European ones, will appear in the Russian FederationAccording to the amendments, the Russian fund will be managed by supervisory board, a director accountable to him and, at the discretion of the founder, an additional board of trustees.

According to the author of the bill, Chairman of the State Duma Committee on Legislation Pavel Krasheninnikov, the project expands the opportunities for citizens to dispose of their property after death. In particular, it provides for the introduction of a new structure for Russian law - the hereditary fund. "Currently, such a construction in one form or another is present in the law of many states," Krasheninnikov noted.

The bill provides that the hereditary fund will be created and operate after the death of the citizen-testator. The decision on its establishment is drawn up by a citizen when drawing up a will. Such a decision must contain information on the establishment of a hereditary fund, on the approval of the charter of the fund and the conditions for managing the fund, on the procedure, amount, methods and terms for the formation of the property of the hereditary fund, as well as on the persons appointed to the bodies of this fund, or on the procedure for determining such persons. , said the head of the State Duma Committee on Legislation.

As the deputy explained, after the death of a citizen, the notary conducting the inheritance case sends an application for state registration of the inheritance fund to the authorized state body and attaches the decision of the testator to establish the fund to the application. The notary is obliged to send such an application to the authorized body no later than 3 working days from the date of opening the inheritance case, Krasheninnikov added.

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 their claims for the testator's debts to all heirs who have accepted the inheritance, including the inheritance fund," Krasheninnikov added.

In addition, the bill protects the rights of minor children of the testator and other heirs who are entitled to a mandatory share (property issued to them regardless of the will).

"The management of the fund must be carried out indefinitely or for a certain period in accordance with the conditions that are determined when drawing up the will. The conditions for managing the fund cannot be changed after the death of the citizen who was the founder of the fund," Krasheninnikov explained.

The fund's property can be replenished in the course of the fund's activities, as well as at the expense of income from the management of the fund's property. "From the property transferred to the foundation, or from the income from the management of the foundation's property, distributions will be made to the persons specified in the will. These may be family members of the testator, various organizations or citizens who are not heirs of the deceased. The project allows the possibility of paying income or other amounts of money (for example , grants) to those citizens who will be determined by the board of trustees or other council of the fund," the deputy noted.

According to him, this will make it possible to realize the will of the deceased, for example, to support gifted children, outstanding scientists, and athletes.

According to Krasheninnikov, inheritance funds are an important tool for inheritance, preservation and business development. He believes that such funds will be in demand by the business community.

In addition, Krasheninnikov noted that the introduction of such an institution in Russian law may be, among other things, an anti-offshore measure. “After all, at present, there is an opportunity to establish inheritance funds or trusts in many countries of the world, and often Russian entrepreneurs are forced to transfer their business to offshore zones in order to establish such a trust or fund to resolve issues related to the disposal of assets after death,” Krasheninnikov said.

The most famous example of inheritance funds abroad is the Alfred Nobel Foundation, from which the famous Nobel Prizes are paid. Another example is the Robert Bosch Foundation, created by the founder of the German concern Bosch, financed by dividends from the company's shares, and providing grants in education, medicine, and culture, the State Duma committee on legislation said in a statement.