The State Duma adopted a law on the creation of inheritance funds. Inheritance fund - new Russian legislation and foreign experience What funds will the fund be supported on

Resume: The article analyzes the changes and innovations in the Russian legislation in the field of inheritance law, as well as the reasons for the inheritance reform. Also considered legal implications, arising with the advent of the hereditary fund, and the prospects for the development of the fund.

Keywords: inheritance fund, inheritance law, inheritance reform, changes in Civil Code RF,.

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 inheritance fund have already been regulated in the Civil Code of the Russian Federation (hereinafter - 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 managing inheritance cases is already in use. The inheritance fund is created as a way to manage property, capital, business, which remain after the death of the testator. According to paragraph 1 of Art. 120.20-1 of the Civil Code of the Russian Federation, an inheritance fund is recognized as a fund created in the manner prescribed by this Code in pursuance of the will of a citizen and on the basis of his property, which carries out activities for the management of the property of this citizen received by way of inheritance for an indefinite period or for a certain period in accordance with the conditions for managing the inheritance fund.

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

Therefore, this expression of the will of the testator may restrict the exercise of the rights of heirs under the law, including the right to a compulsory share. The heirs and those participating in the activities of the foundation no longer become the direct owners of the ownership right to the objects of hereditary property. It also implies the limited intended use of the property transferred to the foundation. Although earlier, as a rule, heirs had unlimited possession and disposal of inherited objects. Those. upon the emergence of a new subject of law, which is the inheritance fund, the real legal relationship of inheritance is transformed into a legal relationship of obligation to participate in the management of the inheritance fund or to acquire property from the fund. Before the reform of inheritance law, the will provided for the expression of 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 inheritance agreement are widespread. Under the terms of fund management, it may be allowed to transfer to third parties all or part of the fund's property, including after the death of the citizen - the founder of the fund.

This situation creates the preconditions for abuses associated with the alienation of the fund's property and contradicts the fundamental rule of the testator's last will. The legislator did not take into account the connection of the inheritance fund with many legal relationships. Such legal relations in family law as the rights of the surviving spouse, relations in the field of common joint property of spouses, and others remain unresolved. Also, no changes were made to tax code RF, which would provide for the specifics of taxation of the inheritance fund. Therefore, this institution is equated to the tax regime of all not commercial organizations since a hereditary fund is a legal entity with appropriate characteristics.

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 indicated in the will, or along with the heirs under the law: “This rule ensures the protection of the interests of the creditors of the deceased, who will be able to make claims against all adopted heirs, including the inheritance fund. And this also protects the rights of the minor children of the testator and other heirs, who, according to the law, have the right to an obligatory share of the property issued to them regardless of the will. " 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 inherited property, and the provision of other favorable consequences. The main goal is to create a hereditary fund in the Russian Federation, as Pavel Krasheninnikov states: “To avoid losses in the period between the date of death of the testator and the receipt of the certificate by the heir, which is six months. This solves the problem of the so-called “lying inheritance” in business, when during these six months anything could happen to the assets ”. Thus, we can conclude that the inheritance fund is a necessary innovation in Russian legislation. This reform brings Russian inheritance law to international standards.

1. the Russian Federation... The laws. Civil Code of the Russian Federation [Text]: Part 1 [from 30.11.1994, as amended by from 07/29/2017] // Collected. Legislation Ros. Federation, - 1994. - No. 32. - Art. 3301; 2017. - No. 27. - Art. 4169.

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

3. Russian Federation. The laws. The Civil Code of the Russian Federation [Text]: Part 3 [from 26.11.2001, as amended by from 03/28/2017] // Collected. Legislation Ros. Federation, - 2001. - No. 49. - Art. 4552; 2017. - No. 14. - Art. 1998.

4. Russian Federation. The laws. On amendments to parts one, two and three of the Civil Code of the Russian Federation [Text]: [from 29.07.2017] // Sobr. Legislation Ros. Federation, - 2017. - No. 31. - Art. 4808.

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

6. Vasiliev AS Comments to 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

Recently, a law has been passed that allows for a new kind of organization. legal entity- hereditary funds in Russia. They will be created to transfer funds and assets by inheritance, similar to those operating abroad.

The bill expands the rights of residents of our country on the issue of disposing of their funds and assets after death. Changes, according to the new laws, will be made in the civil legislation.

What it is?

The inheritance fund is a unique, still non-existent way of managing funds after the death of the founder. The possibility of its creation will interest wealthy citizens who are worried about preserving their own business and transferring management to reliable managers. Hereditary foundation for ordinary people sufficiently burdensome with the costs of managing it. The expenses are made from the money of the newly organized legal entity.

Subjects

The subjects of the fund are:

Testator.
Heirs after the issuance of a certificate of inheritance.
Beneficiaries.
Governing bodies.

The legal side of the issue of the inheritance fund

The bill highlights the main points of the new provisions on these organizations in our country:

The scope of inheritance by will is legalized in a broader concept. The order on the organization of the foundation, on the one hand, is an integral part of the testamentary document, and on the other hand, it is implied that the testator's wish is a separate way of disposing of property after death. The testator predetermines a special procedure for the distribution of the transferred property mass. His will to create a new legal entity may limit the rights of future heirs to legal basis, including their right to a share after inheritance after the death of an individual. The heirs participating in the activities of the foundation are not the right holders of ownership of the property of the testator. This implies the restriction of the targeted use of the organization's property, which is fundamentally different from the unlimited possession of the inherited mass. The creation of a new subject of the right of inheritance replaces the previously customary relations of participation in the management of the fund or the acquisition of dividends from it with new ones.
The founder of a foundation is considered to be its sole founder. This is a legal echo of the fact that a testamentary document may contain the will of one testator. The legislation of our country does not provide for such an institution as a joint will.
The creation of the foundation begins after the death of the testator. The organization does not provide for a person who would be the owner of the funds and assets transferred to it, even after the inheritance after death by the heirs. The foundation exists separately in civil society without belonging to any individual, even inherited after the death of its founder.
A foundation is a legal entity.
The foundation's activities are non-commercial in nature.
The property transferred to the foundation must have its intended use. The organization is a non-profit non-profit enterprise established by an individual on the basis of a voluntary contribution of property or in cash... The goals of the inheritance fund should be related to charity and deeds that are beneficial to civil society. This legal entity uses the property for non-commercial purposes described in its charter, which provides for the right to carry out profitable activities permitted by law.

Creation

According to the law, a notary will be engaged in the creation of an inheritance fund after the death of a citizen with the further transfer of existing assets to him. The notary must act in accordance with the will of the testator.

The founder of the foundation should register the following information in the testamentary document:

on the creation of a legal entity;
on the approval of its charter;
on the definition of management conditions;
on the procedure and amount of formation of the fund's property;
on the persons who are entrusted with the management of the fund;
on the procedure for appointing persons.

Actions of the notary after the death of the owner of the estate:

The notary officer is given three days to send to the state authority an application for the creation of a fund with the data of an individual or the name of a legal entity that will manage this organization in the future.
Asset management is carried out without specifying a period or for a limited period of time in accordance with the conditions enshrined in its charter.
All inherited property is transferred to the foundation.
A part is allocated from the property of the organization, which is assigned to the heirs at the time of their entry into the right to use after the death of the owner of the fund.

The management of the organization must be spelled out in detail in the will by the collegial body of the inheritance fund. The innovations of the law provide for a special procedure for the creation of the governing council. Before sending an application for registration of the fund, the notary works out the issues of creating the management bodies of the fund. If for calendar year no governing bodies will be created, the organization can be liquidated at the request of the beneficiary or the state controlling body. In this case, the fund is not registered, does not become a legal entity. Legal form fund requires good governance and the high competence of the board members, typical of corporate organizations.

The charter and conditions of management cannot be adjusted after the death of the person who was the founder of the foundation, and during the operation of the organization. An exception is the correction of the constituent document on the basis of a court decision at the request of the collegial body of the foundation in the following cases:

Management of the organization on the same terms is impossible for reasons that could not have been predicted.
The beneficiary is an unworthy recipient of the inheritance, provided that this was not known at the time the foundation was established.

Beneficiary

Anyone can be the beneficiaries of the inheritance fund, with the exception of commercial organizations. Let's consider a few key points of the beneficiary's rights:

He is entitled to receive all or only part of the fund's assets.
His rights are inalienable, they cannot be foreclosed on his debts.
Its rights to the foundation are not inherited.
If the beneficiary is a legal entity, then his rights are terminated after a possible reorganization, with the exception of transformation, unless the management conditions provide for the termination of rights upon transformation of the person.
He is not responsible for the obligations of the fund, and that, in turn, is not responsible for its obligations.
The heir who owns the rights to the compulsory share and who is the beneficiary loses the right to claim the part due to him. If the successor, within the period for accepting the inheritance, declares the waiver of the beneficiary's rights, then he has the right to claim his share.

Fund taxation

The tax legislation of our country does not provide for special features for the fund. Taxation of an institution is carried out in accordance with the regime of all non-profit organizations. This determines the investment relevance of the inheritance fund and the desire of wealthy citizens of our country who own their own businesses to choose the form of disposing of property after death of the fund. Guided by an attractive fiscal policy on fund income in Europe, this form of post-death management is in demand among European citizens with high personal income tax rates.

Foundation and family law

The issues of the relationship between the institution of the fund in Russia and the foundations of family legislation on legal relations in the field of joint property of spouses, the rights of another spouse, evidence for invalidating a sole decision to create such a fund have not been fully worked out. The new law lacks a reference to the norms of family law governing the legal relationship between spouses. This indicates the birth of a new judicial practice... This applies, in particular, to inheritance funds.

Foreign examples

Currently, the ability to create funds exists in many countries around the world. For example, there are inheritance funds in Germany.

Abroad similar organizations created by wealthy businessmen. At the same time, this is done for the public benefit. Funds from a non-profit structure are spent on the development of universities, cities, countries. The most famous example is the Nobel Foundation.

Differences between domestic and foreign funds

Let's describe the significant differences between European and Russian funds:

The existence of foreign public law funds and private foundations. Such structures belong to private legal entities, are entered into commercial register... For example, Liechtenstein deposit fund, constituent documents which are to be sent to the commercial register, but information about him is closed from public coverage in the media to maintain anonymity about this organization. The legal personality of the Liechtenstein Foundation is characterized by the execution of transactions through the representation of trustees. The obligation to disclose information about the beneficial owner, members of the collective management body is shifted to the depository assets.
European legislators limit the range of possible purposes for the use of assets by inheritance funds. The goals should be useful to civil society. commercial activity is allowed only on condition that it is directly aimed at achieving the stated goals.
An impressive amount of the authorized capital of organizations in Europe. If for such a fund in our country the minimum amount of the authorized capital is not limited by law, then for the European one it is limited. Authorized capital fund in Germany is from fifty thousand euros.
A clear focus on the stated goals of inheritance, simplicity and convenience of creation procedures. In Liechtenstein, for the creation of a foundation, a statement by the testator about the segregation of his personal property into a foundation is sufficient.
In Europe, the organization is a means of protecting assets from the claims of the testator's creditors. The legal nature of a foundation in Europe may provide for the right of preference to a compulsory share of heirs and / or the right of the privilege of payments on a permanent basis to the beneficiary over creditor claims.
The widespread practice of organizing anonymous funds.
Control over the activities of the fund by the authorized government body. The structure of the supervisory bodies of European countries includes institutions for the control of public, private funds, including hereditary ones. The authorities control the use of property in accordance with the stated purposes. European funds are required to submit annual reports to the supervisory authority.
The presence of specialized courts considering disputes arising from legal relations in foundations.

Recognition of Russian funds abroad

The situation on the recognition of funds abroad is complicated by the fact that the issuance of a certificate of the right to inheritance by a Russian notary in foreign countries requires recognition by a court or other state body. When transferring property located outside of Russia to a foundation in our country, it becomes a difficult task of taking possession of property located abroad. In this case, you should refer to the international legal norms for the recognition of foreign official documents by virtue of the provisions international treaty and national law.

This is a common problem in international law due to the inactivity of the authorities of our country in coordination with other states in settling issues of the need on a daily basis of citizens in family and inheritance legal relations.

There is not much time left before the new laws on the fund come into force in our country this fall. The noted problems can be resolved in the process of international cooperation between Russia and other countries or in the process law enforcement practice counting on reasonable consideration of cases in courts.

The most famous funds

Foundations abroad are created by wealthy people in order to:

to ensure the well-being of their family and relatives after their death;
benefit society.

We list the well-known hereditary organizations:

Nobel Foundation. Founded at the beginning of the twentieth century under the bequest of a famous Swedish inventor. The scientist left his entire fortune, with a few exceptions, for the payment of several awards per year (physics, chemistry, physiology and medicine, literature, world recognition). The bulk of the fund's property is invested in projects. The awards are funded from the return on investment. The amount of the award has amounted to about a million dollars to date.
Ford Foundation. The organization was founded by Henry Ford's son, giving him the first twenty-five thousand dollars. After the death of him and his father, the foundation received all their assets. The fifteen-member board of trustees is chaired by the founder's youngest grandson. New members are elected by the council itself. Now the fund is engaged in investments and is one of the largest charities in the world.
Welcom Foundation. After the death of the founder of the pharmaceutical holding in the UK, Henry Welcom, all his property was given to the organization that bears his name. It now functions as a non-profit organization with assets of £ 18 billion in funding for medical developments.
Bosch Foundation. Based on the decision of the founder of the German concern Bosch, an organization named after him was created. The fund owns a part of the concern's shares and operates at the expense of its dividends.

They are the most famous and wealthy non-profit organizations in the world.

From September 1, 2018 in Russia will appear new form legal entity - hereditary fund. What it is? Why is it needed? How will it work? You will find answers to these and other questions in our article.

What is a hereditary fund and who needs it

First of all, the inheritance fund is an organization created in accordance with the will of the testator after his death. The main idea is to manage his inherited property after the death of the testator (testator). Moreover, this management can be unlimited or for a certain period.

If we speak in simple words, then the inheritance fund must manage the property, business, capital that remain after the death of the testator.

The inheritance fund is needed, first of all, for the testator, no matter how strange this judgment may seem. The fact is that thanks to the created fund, the testator has the opportunity not only to preserve the business after his death, but also to create conditions for its development. This will be especially true in cases where the testator has no heirs or the heirs are unable to manage the business and develop it.

How the inheritance fund works

For the fund to start working, it must appear, i.e. should be established. The decision to establish a foundation is made by the testator during his lifetime. But the actual establishment of the foundation can take place only after the death of the testator.

Testator's decision to establish a foundation

The decision to establish a hereditary fund is formalized when a will is drawn up. In this regard, the testator must necessarily include in the will:

information about the establishment of the inheritance fund;
information on the approval of the charter of the foundation;
information on the terms of fund management;
information on the procedure, size, methods and timing of the formation of the fund's property;
conditions for the disposal of the fund's property and income;
information on the persons appointed to the bodies of this fund, or on the procedure for determining such persons.

In addition to formalizing the decision on the establishment of the foundation, the testator must approve the charter of the foundation. After the death of the testator, one copy of the charter is transferred by a notary to authorized body upon registration of the fund, and the other is transferred to the person performing the functions of the sole executive body of the fund. If the testator indicated the beneficiary in the will, then a copy of the decision on the establishment of the inheritance fund and a copy of the charter shall be transferred to the beneficiary.

The inheritance fund depending on the decision of the testator can be created both indefinitely and for a certain period.

Establishment of a hereditary fund

The inheritance fund is established after the death of a citizen. Until his death, a citizen has no right to establish such a fund.

The foundation of a foundation is carried out either by a notary or by a court.

Foundation establishment by a notary. After the death of a citizen, the notary in charge of the inheritance case, within three days from the date of the opening of the inheritance case, shall send an application for registration of the inheritance fund to the authorized state body. He shall attach to the application the decision of the testator on the establishment of the foundation, where all the conditions are indicated.

Establishment of the foundation by the court. The inheritance fund is created on the basis of a court decision at the request of the executor or beneficiary of the inheritance fund in the event that the notary does not fulfill his obligations to create the inheritance fund.

After creation, the foundation is called upon to inherit by will in the manner prescribed by the civil legislation of the Russian Federation. That is, the foundation must accept the inheritance.

When a foundation accepts an inheritance, a notary issues a certificate of the right to inheritance to the foundation within the time period specified in the decision on the establishment of the inheritance fund, but no later than six months from the date of opening the inheritance.

The foundation can have any name that the testator comes up with. But the name of the fund must necessarily contain an indication that it is a "hereditary fund".

Fund functioning

The conditions and rules for managing the inheritance fund are determined by the testator during his lifetime. He fixes these conditions and rules in his decision to establish the foundation after his death. The very same decision of the testator is reflected in his will, which is certified by a notary.

Certain conditions for the functioning of the hereditary fund are reflected in the charter.

Note that without a court decision, neither the charter of the inheritance fund, nor the conditions for managing the inheritance fund can be changed after the creation of the inheritance fund.

The property of the foundation includes only the property of the testator and that property that appeared exclusively as a result of the foundation's own activities. No property contributions from outside are possible.

Let's note one important point... The foundation's activity begins immediately after its creation, without a six-month period, which is given to the heirs to inherit. It is very important. In fact, this is one of the highlights of the hereditary fund. The testator's business does not remain without management for six months after the death of the testator.

In the current mode, the inheritance fund carries out activities for the management of the property received in the order of inheritance, manages the enterprise, business.

Who manages the estate

The management bodies of the inheritance fund are formed in accordance with its charter. The charter of the foundation may provide for:

higher collegial body(it may include beneficiaries of the fund);
board of trustees;
the sole executive body (it cannot be any beneficiary) or
collegial executive body (a beneficiary cannot be a member of it).

The beneficiary cannot be sole executive body and also be a member of the collegial executive body.

Prior to the beginning of the registration of the foundation, the notary invites the persons, who were determined by the testator, to become members of the management bodies of the foundation. If they refuse or the procedure for determining these persons does not make it possible to form the bodies of the foundation, then the notary is not even entitled to send an application for its creation of the foundation to the authorized body. In this case, the inheritance fund is not created at all.

Who are the beneficiaries of the inheritance fund

The concept of “beneficiaries of the fund” is defined in the Civil Code of the Russian Federation.

Beneficiary is understood as a person who is either appointed by the testator himself or appointed in accordance with the procedure established by the testator in the decision on the establishment of the inheritance fund. All or part of the property of the inheritance fund is transferred to the beneficiary.

The beneficiaries of the fund are determined by the testator when approving the conditions for managing the inheritance fund. Any participants in legal relations, except for commercial organizations, can be the beneficiaries of the inheritance fund. The beneficiaries of the foundation are most often the heirs of the testator.

The beneficiary has the right:

receive all or part of the property of the foundation;
waive the right to receive the fund's property;
to request and receive from the hereditary fund information on the activities of the fund;
require an audit of the fund's activities;
to demand compensation for losses incurred by him in the event that they occurred due to violations of the conditions for managing the inheritance fund.

It is important to note that the rights of the beneficiary are inalienable, they cannot be foreclosed on the obligations of the beneficiary, and these rights are not inherited.

Hereditary foundation and heirs

Immediately, we note that when creating an inheritance fund, the rights of heirs are not violated or infringed upon. Although the inheritance fund becomes an equal heir along with the heirs.

The fact is that when entering the hereditary mass of a share in a company, an enterprise, this share can be transferred to the inheritance fund. And the beneficiaries of the fund will be the heirs, as well as persons not named as heirs in the will.

In addition, minors or disabled children of the testator, his disabled spouse and parents, as well as disabled dependents of the testator, are called to inherit and inherit, regardless of the content of the will, at least half of the share that would be due to each of them in case of inheritance by law (compulsory share).

Note that from September 1, 2018, a new procedure has been introduced for determining the rights of the heir who has the right to a compulsory share in the inheritance in the event of the establishment of an inheritance fund. But in this article we do not describe this procedure.

Pros and cons of hereditary fund

The practice of creating and operating hereditary funds will appear no earlier than the end of 2018. Therefore, it is too early to talk about the advantages and disadvantages of hereditary funds. However, some assumptions can already be made.

Advantages:

the fund enables citizens who have their own business to keep it even after their death;
the fund enables testators who own own business to provide for their heirs and other persons after their death;
the fund allows the company, the enterprise not to stand idle for six months, but to continue working after the death of the testator;
gives the testator the opportunity to direct the funds of the fund for good purposes.

Possible disadvantages:

the foundation imposes additional duties and troubles on notaries.

Photo from the site urist.one

A year later, a new legal institution will start working in Russia - the hereditary fund. Pravo.ru tells why this innovation is needed and how it differs from its foreign counterpart - a trust. In addition, the experts of the publication explained why in as it stands the discussed innovation looks "half-hearted" and how the legislator needs to regulate the management of such a fund.

Russian lawmakers have taken a course towards creating legal institutions that are used in English law, says Mikhail Kurdzhev, partner... The ongoing reform of civil legislation confirms this, the expert adds: "Options, escrow accounts and a corporate agreement have already appeared in our law." Another foreign borrowing will come into force in the fall of next year. At the end of July this year, Vladimir Putin has a law that provides for the possibility of creating special inheritance funds in Russia from September 1, 2018. Such formations will be used to transfer property by inheritance, by analogy with foreign funds.

The initiator of the emergence of such an initiative was a group of State Duma deputies headed by Pavel Krasheninnikov... The author of the idea explained that the hereditary fund is created by people who think about how to keep their business and who to entrust the management of their assets after death.

What does the law introduce

The new law provides that the foundation will be established by a notary after the death of a citizen, based on the will of the testator. In this document, the owner of the state must specify whole line information: about the establishment of the hereditary fund, the approval of its charter and management conditions, about the procedure, size, methods and timing of the formation of the fund's property, as well as about the citizens appointed to the bodies of this formation, or the procedure for selecting such persons.

When the testator dies, the notary must send an application for registration of the fund to the authorized state body within three working days. On this paper, you must indicate the name of the citizen or company that will manage the fund. Thus, all inherited property immediately after the death of the owner is accumulated in a new legal institution. From these assets or from the income from their property management, it will be possible to make payments to those persons whom the owner of the estate indicated in the will. The recipients of such money can be not only individuals, but also entire companies - it all depends on the will of the testator himself.

If the notary does not fulfill his obligations, the inheritance fund may be created on the basis of a court decision at the request of the asset manager or beneficiary. In addition, they have the right to challenge the actions to create a foundation if the notary violates the orders of the testator. The charter of the inheritance fund and the conditions for managing it cannot be changed, except for the case when the beneficiary is recognized as an unworthy heir (Article 1117 of the Civil Code).

The liquidation of the fund is carried out on the basis of Art. 61 of the Civil Code, as well as in connection with the occurrence of the circumstances specified in the conditions or the impossibility of forming the fund management bodies. If the inheritance includes property that requires management (enterprise, securities, etc.), the notary enters into a trust management agreement for this property for up to five years.

How do such institutions work abroad

Nowadays it is possible to establish inheritance funds in many countries of the world. Abroad, particularly in the USA, UK and other countries, common law an institution for such purposes is called a trust, says Bogdan Marchenkov, a lawyer AB" " ... For the first time, trusts appeared in England in the 11th century. In the Middle Ages, the transfer of property to beneficiaries through such an institution began to be actively used as an alternative to a will and a means against inheritance tax.

Thus, English lawyers have improved the form of property ownership: the assets are owned by the trust, but controlled by the former owner of the estate. Usually, such funds are created abroad by businessmen and very rich people during their lifetime. They do this not only in order to support relatives after their death, but also in order to benefit society: funds from the fund can be spent in the interests of a particular university, hometown, the whole country, or even all of humanity. The most famous example of such charity is the Nobel Foundation.

The most famous foreign inheritance funds

Nobel Foundation

Created by June 29, 1900 under the bequest of a Swedish inventor Alfred Nobel.

The scientist took 94% his fortune (SEK 31 million) on the annual payment of five prizes: in physics, chemistry, physiology and medicine, literature and peace.

The basic part of the fund was invested, only profit goes to premiums. In 2016, the amount of the award was $ 1.1 million.

Ford Foundation

Created by January 15, 1936 son of Henry Ford - Edsel Ford who donated the first $25 000 .

After the death of Edsel in 1943 and Henry in 1947, the foundation received all their funds and assets. Ford Motor Company.

The 15-member board of trustees is chaired Henry Ford Jr., grandson of the founder of the company, new members are 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 charities in the world with assets $ 11.9 billion

Welcom Foundation

Created by July 25, 1936 after the death of the founder of the British pharmaceutical holding Welcome Henry Welkoma.

All his assets were transferred Welcome Trust.

The fund now operates as a non-profit organization with £ assets 18 billion, at the expense of which he sponsors medical developments.

Bosch Foundation

Created by June 26, 1964 based on the will of the founder of the German concern Bosch Robert Bosch.

The Foundation owns 92% shares the concern and is financed from its dividends.

Since its inception, the foundation has provided grants more than€1 billion in education, medicine and culture.

Why Russian trusts are needed: expert opinion

The emergence of inheritance funds in Russia is another initiative for the "targeted modernization" of Russian inheritance law, says senior partner Roman Rechkin... He notes that this branch of law is still 90% of the Soviet legacy. According to the expert, the Russian semblance of Anglo-American trusts is initially inferior to foreign counterparts: "Abroad, it is impossible to foreclose on the property of a trust for the debts of its founder. In Russia, the law directly established that the inheritance fund is responsible to the testator's creditors for general rules“Nevertheless, the new institute will be in demand to some extent by wealthy Russians, the lawyer is sure. Kurdzhev suggests that influential businessmen on the sanctions list will use Russian trusts.

According to Olga Sedova, lawyer, the new foundation can solve the problem of heirs, when it is not possible to manage the business in the time interval between the death of the owner of the estate and the receipt of the inheritance. As long as such a deadline comes, the heir sometimes has nothing to get, the lawyer explains: "Either the unscrupulous partners have already taken possession of everything, or due to stagnation, the business collapsed itself under the influence of free competition." Alena Bachinskaya, lawyer, agrees with colleagues that the target audience of the discussed initiative - these are businessmen and other people with significant assets: "In other cases, using such a fund simply does not make much sense."

Marchenkov sees in the emergence of the institution under discussion several goals at once: 1) Professional management property transferred to such a fund allows it to be preserved and even increased. 2) The heirs of the deceased receive certain maintenance. 3) It will turn out to prevent the division of inherited property. However, these goals can be achieved already now within the framework of the will and the trust management agreement (Article 1173 of the Civil Code), the expert emphasizes. However attorney, partner of CA Pavel Khlyustov I am sure that in the next 5-10 years the discussed innovation will not be popular with Russian testators. He explains his skepticism by several factors: 1) The circle of wealthy people who can be helped by the hereditary fund in our country is not yet wide enough. 2) Most of the assets of such citizens are taken abroad, and their Russian property is usually wrapped in a network of offshore companies or registered in denominations. 3) Russian rich people are not inclined to trust domestic legal instruments. Thus, we can borrow any advanced achievements of foreign legal thought, but until the psychology of Russian businessmen changes, these innovations will continue to exist only on paper, sums up Khlyustov.

What Russian inheritance funds are missing

Denis Arkhipov, AB partner" " , notes that the law offers a half-hearted solution - only posthumous personal funds: personal fund even during the life of the testator. "According to the expert, it is important that the owner of the estate see with his own eyes how the fund will work after his death. Arkhipov says that the GPU of the Presidential Administration objected to the creation of lifetime hereditary funds. The agency argued that such funds could be used for dishonest purposes - to evade the fulfillment of obligations to the testator's creditors. However, this problem can be solved by granting additional rights to creditors, the lawyer notes: "And not to make a complete ban on lifetime funds."

Problematic aspects of the work of hereditary funds in Russia:

1) A special taxation regime for the inheritance fund and benefits are required for the beneficiaries to receive property from the fund.

2) What education and knowledge should a fund manager have? How are its activities regulated? Or the testator can appoint any person worthy, in his opinion? The requirements for such persons and the standards of their work have not yet been established.

3) There are no limits to the liability of the fund manager and criteria for the unfairness of his actions.

4) The law does not amend the Federal Law "On non-profit organizations"The question remains open - how the activities of such a fund will be regulated, taking into account the obligations that are imposed on the work of NPOs.

Pavel Krasheninnikov, Chairman of the State Duma Committee on State Building and Legislation, one of the authors of the new law, told the correspondent " Russian newspaper"on new opportunities for citizens to manage property. Such opportunities are provided by the law signed by the president."

Pavel Vladimirovich, new law concerns almost every Russian family. After all, it's about inheritance law. What is the main innovation?

Pavel Krasheninnikov: The law expands the ability of citizens to dispose of their property in case of death. A completely new construction for Russian inheritance law is introduced - the inheritance fund. This is the main innovation of the law. An inheritance fund is a way of managing property, business, capital, which remain after the death of the testator.

Explain to our readers how this inheritance fund will work.

Pavel Krasheninnikov: The inheritance fund will be created and operate after the death of the citizen-testator and in accordance with the conditions that he himself determines. The decision to establish a foundation is made by a citizen when drawing up a will.

Such a decision must contain information on the establishment of the hereditary fund, on the approval of its charter and the conditions for managing the fund, on the procedure, size, methods and timing of the formation of the fund's property, on the conditions for disposing of the fund's property and income, as well as on the persons appointed to the bodies of this fund. , or on the procedure for determining such persons. All this is determined by the testator during his lifetime and cannot be changed after his death.

The inheritance fund is new way property, business, capital management

Who exactly will organize the fund?

Pavel Krasheninnikov: After the death of a citizen, the notary conducting the inheritance case, within 3 days from the date of the opening of the inheritance case, sends an application for registration of the inheritance fund to the authorized state body. He shall attach to the application the very decision of the testator on the establishment of the foundation, which indicates all the conditions.

If there is a fund, where will the heirs go and how will the whole scheme work?

Pavel Krasheninnikov: The inheritance fund becomes one of the heirs along with the citizens or organizations indicated in the will, or along with the heirs by law. This rule protects the interests of the deceased's creditors, who will be able to make claims against all heirs who have accepted the inheritance, including the inheritance fund. And in this way, the rights of the minor children of the testator and other heirs, who, according to the law, have the right to an obligatory share of the property issued to them, regardless of the will, are protected.

How long should the inheritance fund exist and at whose expense will it operate?

Pavel Krasheninnikov: The fund must be managed indefinitely or for a certain period, in accordance with the conditions specified by the founder.

The property of the foundation can be replenished in the course of the implementation of its activities by the foundation, including through income from property management. From property or from income, payments will be made to those persons who were indicated by the founder in the will. These can be family members of the testator, various organizations or citizens who are not heirs of the deceased. Thus, the testator provides financial support certain persons even after their death.

In addition, the possibility is established to make payments to other persons, which will be determined by the board of trustees or other council of the foundation. This will allow realizing the will of the deceased to carry out charity. For example, to support gifted children, outstanding scientists, athletes. By analogy with foreign charitable foundations.

The inheritance fund is a guarantee that the will of the person who drew up the will will be realized. Photo: Depositphotos

Who might be most interested in the inheritance fund?

Pavel Krasheninnikov: A succession fund is an important tool for inheriting, maintaining and developing businesses and other assets. It will allow immediately after the death of the testator to transfer property, business to the management of the foundation. And thus to avoid losses in the period between the date of death of the testator and the receipt of the 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 during these six months.

In addition, the appearance of such an instrument in Russian legislation is, among other things, an anti-offshore measure. Since earlier, Russian entrepreneurs were forced to transfer their assets abroad in order to establish such a fund or trust. Now they will be able to leave their business in Russia, preserving capital, jobs, and developing our economy. So this novel will help to increase the attractiveness of the Russian jurisdiction.

Is there something similar in other countries or are we talking about a completely new initiative?

Pavel Krasheninnikov: The ability to establish such funds, in one form or another, has long existed in the law of many states - in the UK, USA, Austria, Germany and others.

The most famous example of inheritance funds abroad is the Alfred Nobel Foundation, from which nobel prizes... Another example is the Henry Ford Foundation, which received all of Ford's assets. It is one of the largest charity foundations. Or the Robert Bosch Foundation, created by the founder of the German concern Bosch. This fund is financed by dividends from the shares of the concern and provides grants in education, medicine and culture.

When will these changes start to work?