Inheritance through the court: when a notary is not enough

Usually a person comes with this question after the notary has refused to issue a certificate of the right to inheritance. The reasons vary: the heir actually accepted the property but did not apply within the deadline, the documents for the flat or plot have not been preserved, the object was not registered during the deceased's lifetime, or a dispute about shares has arisen between relatives. In each case the notarial procedure comes up against a circumstance that cannot be confirmed by documents.

From the article you will learn when inheritance is arranged through the court instead of a notary, and how establishing the fact of acceptance of the inheritance, recognition of ownership and division of property differ. We will look separately at land plots, the question of jointly acquired property of spouses and the situation where the heirs cannot agree among themselves. At the end there are tables: which facts are confirmed and by what, and also which options for dividing the inheritance exist and what consequences they lead to.

When inheritance through the court replaces the notarial procedure

The notary issues a certificate of the right to inheritance when the composition of the inheritance, the circle of heirs and the acceptance of the inheritance raise no doubts. Where there is a dispute about the right or it is impossible to confirm legal facts, the notarial procedure stops, and arranging the inheritance through the court becomes the only way to secure the rights.

The basis for the claim is an infringed or disputed right. The court establishes which of the heirs has the right to the property, determines the shares, declares the will invalid or includes the property in the estate. The notary is not entitled to resolve such disagreements.

A separate group of cases is the establishment of facts of legal significance: family relations, acceptance of the inheritance, the place of opening of the inheritance. Inheritance through the court in such cases is arranged because only the court can confirm these circumstances: the notary is not entitled to certify them.

• a dispute between heirs about shares or the composition of the property;
• invalidity of the will or its contestation;
• the need to establish family relations;
• confirmation of the fact of acceptance of the inheritance;
• inclusion of property in the estate;
• contestation of the notary's refusal to perform a notarial act.

How arranging inheritance through the court works: from claim to judgment

Arranging inheritance through the court begins with a claim to the district court at the place of opening of the inheritance or the location of the immovable property. The statement sets out the composition of the inheritance, the grounds for inheritance and the circumstances because of which the notary cannot issue a certificate. Documents on family relations, on the death of the deceased, title documents for the property and the notary's written refusal are attached to the claim.

The participants in the case are the claimant and the respondents, and in special proceedings the applicant and interested persons; the notary handling the inheritance file is also involved. The court examines documents on family ties, the composition and ownership of the property, and the fact of acceptance of the inheritance. If necessary, an expert examination is ordered, and information is requested from the Legal Cadastre and from the notary.

• Drafting and filing a claim in compliance with jurisdiction and form
• Identifying the parties involved and engaging a notary
• Gathering evidence of kinship, ownership and the value of the property
• Participating in court hearings and giving explanations on the substance of the dispute
• Obtaining the court decision and its entry into legal force
• Registering the right on the basis of the court decision in the Legal Cadastre

Establishing the fact of acceptance of inheritance: when inheritance through court is the only way

If an heir has in fact accepted the property but did not complete the documents on time, the rights are restored through establishing the fact of acceptance of inheritance. This is the establishment of a legal fact, not a dispute over a right. The application is filed with the court at the applicant's place of residence, if there is no dispute over a right.

Factual acceptance is confirmed by actions: taking possession, managing the property, paying the deceased's debts, repairs, safeguarding. Establishing the fact is necessary when the notary has refused to issue a certificate due to a missed deadline or lack of documents. The court verifies whether the heir performed actions indicating acceptance.

Difference from a dispute over a right: if another heir contests the right, contentious proceedings are considered. In special proceedings the court merely confirms the fact, without deciding the question of ownership of the property. The established fact serves as the basis for the notary to issue a certificate of the right to inheritance.

Grounds for applying:

• missing the deadline for accepting inheritance in the absence of a dispute over a right;
• absence of documents confirming kinship or acceptance;
• factual taking of possession of the property after the death of the deceased;
• payment by the heir of the deceased's debts or of the costs of maintaining the property;
• refusal by the notary to perform a notarial act on the ground that the fact has not been established;
• the need to confirm the fact in order to register the right in the Legal Cadastre.

Recognition of ownership of inheritance through court

Recognition of ownership through court is needed when the deceased did not complete the registration of the object and the notary cannot issue a title document: unauthorised construction, real estate not registered in the Legal Cadastre, lost documents. The heir files a claim for recognition of the right to a specific item.

The case proceeds under the rules of contentious proceedings: the defendant is the local executive body or other interested persons. The court recognises the heir's ownership if the fact of acceptance of inheritance, the deceased's ownership of the property and the absence of a dispute over a right are confirmed. The decision becomes the basis for registering the right.

In the case of unauthorised construction, the right to the land plot and compliance with construction and sanitary norms are proved; the court examines the documents on the allocation of land, the technical passport and expert opinions.

• unauthorised construction erected by the deceased on a land plot owned by him
• an object whose rights were not registered in the Legal Cadastre during the deceased's lifetime
• real estate whose title documents have been lost
• property transferred by will or by law but not formalised by a notary
• a land plot provided to the deceased without registration of the right

Entering into inheritance of land through court: specific features of land plots

A land plot differs from an apartment or a car: the right is confirmed by a title document, Legal Cadastre data and actual land use. Entering into inheritance of land through court is required if the deceased did not obtain an act on the land, did not register the right in the Legal Cadastre, or held the plot on the basis of an akim's decision or an unregistered contract. The heirs prove kinship, acceptance of the inheritance and the existence of the deceased's right to the specific plot.

The designated purpose of the land determines the permissible ways of using it, the possibility of division and the requirements for the right holder. If the land is used for purposes other than its designated purpose, the court examines whether the right of inheritance is preserved and whether there are grounds for withdrawing the plot. Unregistered plots provided before the introduction of modern registration require the right to be established through court.

• the deceased's ownership right or right of permanent land use, confirmed by a document or an akim's decision
• the designated purpose of the plot and the type of land according to Legal Cadastre data
• the actual provision and use of the land by the deceased before the opening of the inheritance
• the area, boundaries and location of the plot, the absence of overlaps and disputes with neighbours
• the absence of withdrawal of the plot from circulation and of restrictions established by law
• the composition of the heirs, acceptance of the inheritance and the absence of claims by third parties to the plot

A court case on inheritance almost always begins with one question: what exactly prevents the notary from issuing the certificate. The answer determines both the type of application and the evidence required.

Jointly acquired property and inheritance through court: where the line is drawn

Property acquired by spouses during marriage is, as a general rule, their common joint property, and the shares are equal. After the death of one of the spouses, the inheritance includes not all of the property, but only the deceased's share. The surviving spouse's share remains his or her own property and is not included in the estate. When issuing the certificate of the right to inheritance, the notary must correctly determine this line.

In practice it is difficult to establish what was jointly acquired and what was personal. Property received before marriage, as a gift or by way of inheritance, as well as items of personal use, is considered personal. Everything else, including income, acquired items, deposits and shares in a business, is presumed to be common, so inheriting such assets requires documentary confirmation of the composition and value of the common mass.

• the inclusion of specific property in the estate or its exclusion from it
• determination of the deceased spouse's share in the common property
• separation of the surviving spouse's share from the common property
• recognition of property as personal rather than jointly acquired
• division of items and rights between the heirs taking into account the spouse's share
• challenging the composition of the estate on the basis of documents and transactions

Division of an inheritance through court: when the heirs cannot agree

Division of an inheritance through court is needed when the heirs have not agreed on the property. Heirs of the same priority, as a general rule, receive shares in equal parts, but the composition of the property and each person's interests differ. If no agreement is reached, the dispute goes to court, which determines the shares and the method of distributing the items.

An indivisible item — housing or a vehicle — requires particular attention. It cannot be physically divided between several persons without losing its purpose, so the court awards the item to one heir and monetary or other compensation for their shares to the others.

Under Kazakhstan law, preferential right is held by heirs who lived together with the deceased for at least a year before the opening of the inheritance — in respect of the dwelling, household utensils and everyday items — as well as heirs who owned the property together with the deceased on the right of common ownership. They are entitled to claim such property, compensating the others for the part due to them. The exercise of this right becomes the subject of a dispute.

• disagreement over the composition and value of the inherited property;
• a dispute over shares in inheritance under the law and under a will;
• the impossibility of dividing an indivisible item between several heirs;
• a claim of preferential right to an indivisible item;
• division of property over which third parties have asserted rights;
• division of an inheritance where there is no agreement on the allocation of one heir's share.

Division of an inheritance through the court: a step-by-step breakdown of the dispute

If no agreement on division is reached, the court establishes the composition of the estate: real estate, shares in the charter capital of an LLP, vehicles, bank deposits, shares in the joint property of spouses. From property acquired in marriage, the spouse's share is first allocated, and only the remainder is divided between the heirs.

The court then assesses the shares and decides whether division in kind is possible or whether monetary compensation is awarded. Division in kind has priority if the object can be divided without losing its purpose. If a share cannot be allocated in kind, the item is transferred to one heir, and the others receive compensation for the value of their shares.

Compensation applies where the property is disproportionate to the shares and where the heir does not consent to payment. The court takes into account the preferential right of heirs who lived with the deceased for a year before the inheritance was opened or who owned the property together with the deceased. The outcome is formalised by a decision, on the basis of which the right is registered in the Legal Cadastre through the Public Service Centre.

An inheritance case in court proceeds in stages:

• determining the composition of the estate and allocating the spouse's share
• valuing the property and establishing each heir's share
• checking whether division of the object in kind is possible
• awarding monetary compensation where the item is indivisible or the shares are disproportionate
• taking into account the preferential right of certain heirs to the dwelling and joint property
• registering the right on the basis of the decision through the Public Service Centre

Division of an inheritance through the court between heirs: a table of options and their consequences

Division of property between heirs is possible by agreement or through the court. If the heirs agree on the composition of the estate and the size of the shares, an agreement on division is drawn up and certified by the notary handling the inheritance file. If there is no agreement, the court determines the shares and allocates the property in kind or awards compensation. Where an item is indivisible, the heir who used the item together with the deceased has a preferential right to receive it.

The division affects the compulsory share: the deceased's minor and incapacitated children, and the deceased's incapacitated spouse and parents, receive their part regardless of the will. If the will covers only part of the property, the remainder is divided under the law. An heir who has accepted part of the inheritance is deemed to have accepted all the property due to them. The methods of division and their legal consequences are set out in the table.

• Agreement on division: used where there is no dispute, certified by a notary, terminates the joint ownership.
• Division under the law through the court: used where there is a dispute over the shares or the composition of the property, the court determines the shares and the method of allocation.
• Allocation of a share in kind: used for divisible items, the heir receives specific property proportionate to their share.
• Compensation instead of a share: used where the item is indivisible, the heir receives the monetary equivalent of the share.
• Preferential right: applies to the dwelling and household items if the heir lived with the deceased for a year before the inheritance was opened, or to property held in joint ownership with the deceased.
• Taking into account the compulsory share: applies where there is a will, minor and incapacitated children, and the incapacitated spouse and parents, receive what is due to them.

In all cases the division of an inheritance is documented in writing, and the transfer of rights to immovable property is subject to state registration.

Dividing an inheritance through court after the death of parents: the specifics of family disputes

After the death of parents, a dispute over the division of what was acquired during the marriage often arises between the children and the surviving spouse. The surviving spouse's marital share is not included in the estate; the rest is distributed among the heirs of the first order: the children, the spouse and the parents of the deceased. The division begins with determining the composition of the inheritance and allocating the marital share.

If the heirs cannot agree, the division goes to court: the children divide their shares, and the surviving parent takes part both as an heir and as the owner of the marital share. Where there is a will, the court checks its validity and the rights of compulsory heirs. Indivisible items (an only flat, a car) are not divided in kind: the court may award them to one heir with compensation to the others. Heirs who lived with the deceased for a year before the opening of the inheritance have a preferential right to the dwelling, household utensils and articles of everyday use. The debts of the deceased are taken into account within the value of the property received.

• Allocation of the surviving parent's marital share from jointly acquired property.
• Determining the circle of first-priority heirs and the size of their shares.
• Checking the will and allocating the compulsory share to heirs unable to work.
• Assessing whether items are divisible and whether a share can be allocated in kind.
• Application of the preferential right to the dwelling and articles of everyday use for heirs who lived with the deceased for a year before the opening of the inheritance.
• Distribution of the deceased's debts among the heirs in proportion to what they received.

What matters to prove in an inheritance case through the court: a table of facts and evidence

In an inheritance case, the court does not review the will or divide the property at its own discretion. It establishes specific facts: kinship, the composition of the property, the place of opening of the inheritance and the will of the deceased.

The court examines the inheritance under the rules of civil procedure: each party proves the circumstances it relies on. No evidence has pre-established weight: the court assesses it as a whole, but checks written documents first, and accepts witness testimony where a fact cannot be proved otherwise. Cohabitation with the deceased is proved by a registration certificate, not merely by what the neighbours say.

Below are the key circumstances and evidence that the court assesses first.

• Documents confirming kinship: birth, marriage and adoption certificates.
• Title documents for the property: contracts, technical passport, information from the Legal Cadastre.
• A certificate of the deceased's last place of residence to determine the place of opening of the inheritance.
• The will and information on its certification or revocation.
• Evidence of actual acceptance of the inheritance: receipts, registration, use of the property.
• Witness testimony — as a supplement where written evidence is insufficient.

Witness testimony is assessed together with documents, not instead of them.