Situation: The testator died and left no will. The testator has two children – first-order heirs and a sister – a second-order heir – who has lived in one of the testator’s apartments for many years. The inheritance includes three apartments. The testator’s children agree that one of the apartments should be inherited by the testator’s sister, but they want to inherit the other two apartments themselves. Is it possible to somehow legally formalize this and how to do it correctly?
In fact, such a possibility is provided for by law. Thus, paragraph 4 of Article 1060 of the Civil Code of the Republic of Kazakhstan stipulates that the rules on the order of calling heirs by law to inheritance and the size of their shares in the inheritance may be changed by a notarized agreement of the interested heirs, concluded after the opening of the inheritance (that is, after the death of the testator).
Unfortunately, in practice, most notaries refuse to formalize an inheritance with a changed order and sizes of shares, citing the fact that with this approach, the heir actually renounces part of the inheritance, which is directly prohibited by law (clause 8 of Article 1074 of the Civil Code of the Republic of Kazakhstan directly states that renunciation of part of the inheritance, renunciation of inheritance with reservations or under a condition is not allowed). However, there are notaries who can formalize an inheritance with a changed order and sizes of shares, while absolutely correctly interpreting the norm provided for in clause 4 of Article 1060 of the Civil Code.
The fact is that in this case it is incorrect to evaluate the agreement on changing the order of calling heirs by law to inheritance and the size of their shares in the inheritance as evidence of the heir’s renunciation of part of the inheritance. Renunciation of inheritance has its own important feature, which distinguishes it from the conclusion of a similar agreement and due to which the legislator has established the norm on the impossibility of renunciation of part of the inheritance. Such a feature is the ability to renounce an inheritance without specifying the heirs in whose favor the renunciation is made. In this case, the inherited property may be left without heirs at all and may subsequently be declared ownerless (passed in favor of the state in the absence of heirs or the renunciation of all heirs from the inheritance). In contrast, when the heirs conclude an agreement on changing the order of calling heirs by law to inheritance and on the size of their shares in the inheritance, the entire inherited property is inherited, a situation in which the inherited property may be left without heirs, which is typical when the heir renounces part of the inheritance, does not arise.