What is a hereditary fund? Trust in Russian. How to bequeath a fortune using an inheritance fund. Why are Russian trusts needed: expert opinion

From September 2018, a new concept will appear in legal terminology – inheritance fund. We suggest you figure out what it is and who will benefit from its creation?

In fairness

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 (IF) 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 when drawing up 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 methods of replenishing assets;

indicate the managers and the procedure for their appointment;

establish the lifespan of the NF.

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

In fact, the foundation becomes one of the heirs. All material assets received by the fund can be claimed by:

relatives, including those entitled to an obligatory share;

creditors.

The mechanism will not allow the testator to take advantage of imperfect legislation and hide part of the property from those who have the right to inherit it. The safety of assets will also be ensured, which is not easy to do without an 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 inheritance fund begins to function after the death of the testator, who during his lifetime decided all organizational and legal issues on organizing a special form of business management and preservation.

After death, the duties of a notary include:

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

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

The property of the NF throughout the entire period of its existence will be replenished by effective management. The proceeds will be paid one-time or regularly to a circle of persons whom the testator lists. These can be either family members or complete strangers, for example, company employees or hospital medical 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 NF board of trustees will be able to determine the circle of persons to pay grants or scholarships.

What rights and obligations does the beneficiary (the one who lays claim to the property of the NF) receive?

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

cannot pay off its debts using the assets of the NF;

has the opportunity to receive financing based on the conditions prescribed by the deceased;

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

can go to court to challenge the form of management and other aspects of the work of the NF;

does not have the right to solely manage the NF;

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

Solving the problem of “lying inheritance”

He clearly explained to the readers “ Russian newspaper», what is an inheritance fund, one of the authors of the bill is Pavel Krasheninnikov, chairman of the Duma Committee on State Construction and Legislation.

In particular, he mentioned solving the problem of “lying inheritance,” when property and any assets are actually “frozen” for six months. This is exactly how long it takes from the moment of a person’s death until the day his relatives receive a certificate of inheritance. During this period, anything can happen to the business, and competitors often take advantage of this “confusion.” The new tool allows you not only to preserve, but also to develop a business by transferring it to the fund.

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

On a note! The possibility of establishing hereditary funds exists in the United States, Britain, Germany, Austria and a number of other countries.

Krasheninnikov also recalled the most striking historical examples of the establishment of hereditary funds:

Nobel - from it the well-known prizes for Nobel laureates are paid;

Ford, which contains all the assets of the famous Ford automaker;

Bosha is a name well known to Russians from 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. In general, they 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 SF and its control during their lifetime.

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

It remains to say the last point: the inheritance fund is of little interest to ordinary people. They dont have big business and such accumulations that after death it is necessary to create special organization, which would preserve and increase capital.

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 for consideration back in the spring of 2016, and if it were adopted, there would be fewer family squabbles and fraudulent schemes when one of the homeowners with an inherited share in the apartment survives from the living space of the others.

Business in Russia is a relatively young phenomenon. However, the early entrepreneurs, the pioneers of the 90s and 00s, are gradually reaching an age when a person thinks about the well-being of his loved ones in case he is gone tomorrow.

The first option that comes to mind: the heirs will continue the work of their fathers. The option is indeed not bad, if the heirs wish. And if a son or daughter for some reason does not want or cannot manage the company, what then?

The matter is even more complicated when there are several partners in the business. In such cases, the living participant is tempted to remove the heirs by paying them some kind of “compensation”. On the other hand, heirs who have received a share in the company can simply ruin the business with their actions. It is to solve such seemingly hopeless situations that the legislator introduces the design of an inheritance fund. This design appears in accordance with changes to the Civil Code of the Russian Federation, which come into force on September 1, 2018.

Use case

Let’s imagine that there are two partners “P1” and “P2”. They own the company LLC "A". The specific percentage of partners' shares in the authorized capital is not of fundamental importance.

“P1” has heirs who, for certain reasons (we will return to them later), cannot rationally manage the company. Moreover, this statement corresponds to the opinion of both partners. However, “P1” still wants to ensure a comfortable existence for his loved ones. To do this, he turns to a notary and draws up a will, under the terms of which, after his death, the notary will create an inheritance fund.

Property "P1" - a share in company "A" - will be transferred to the hereditary fund. The heirs will become the beneficiaries of the fund, and “P2” will manage it.

And here’s where the fun begins: “P1” needs to determine how his heirs will receive a share and/or income from managing it. There can be a lot of options, we believe that most of them depend on the reasons why “P1” decided to create a fund.

The heir is ill or does not want to continue the testator's business.

Solution option: according to the terms of management, beneficiaries must regularly receive part of the income from the use of the inheritance mass (). Wherein minimum size deductions will be set in advance.

Also, the management conditions will provide for a circumstance in the event of which the hereditary fund will transfer all property into the ownership of the heirs. This is a kind of insurance against malicious actions of “P2”. Such circumstances, for example, may be: a delay in periodic contributions, transfers of a smaller amount, or the fund does not have the funds to pay.

In other words, if the fund managed by “P2” stops paying income (even for objective reasons), then the heir receives the right to demand the transfer of the share into his direct ownership.

The described example may not seem very fair in relation to “P2”, because the reasons why the fund does not transfer income can be different, and their occurrence does not always depend on the actions of the remaining partner. At the same time, even if things go badly for objective reasons, we believe that transferring management to the heirs is an adequate solution. What P2 fails to achieve, the heirs can achieve.

The heir is young and does not have sufficient competence to manage.

Solution option: in this case, according to the terms of management, the share in LLC “A” can be transferred to the heir upon reaching a certain age or acquiring the necessary competencies (for example, obtaining two higher education or work experience in a certain specialty).
At the same time, no one prohibits transferring the share in parts. Those. the heir turned 25 years old and received 10% of the share; studied at two universities, another 10%; received work experience in a certain specialty, another 10%. And so on...
Again, it seems that the option is unfair to the minority shareholder. However, think about what has changed in relation to him? Yes, of course, the minority shareholder alone keeps the company afloat, while future perspective- deprivation of control. However, the size of his share remained the same. The status quo has been maintained. In addition, he gets an adequate partner who has gained experience.

After the death of one partner, the remaining partner can buy out his share.

Solution option: management conditions determine the purpose of the fund's existence - the sale of the testator's share to one or more participants of LLC "A". The conditions also establish the value of the share (the procedure for determining it) and the period during which the share must be sold. Thus, the remaining partner can receive installments in purchasing a share from the heirs and guarantees of non-interference in operational management on their part, and the heirs have a clear understanding of the prospects for settlement. If the terms of the redemption are not met, then the share passes to the heirs, who begin to “steer” in their own way.
In any option, for the purpose of control, the highest collegial body (SCB) may include heirs or proxies of the testator, while the SCB itself may receive the authority to approve transactions for the alienation of the fund’s property.

We would like to note that one option for using an inheritance fund can always be combined with another. For example, “P2” may receive the right to buy out part of the share of “P1”, while the other part will be transferred to the heir gradually.

general information

An inheritance fund is one established by a notary by order of the testator. The fund is created after the death of a citizen, provided that this is provided for by his will. The period for which such a fund is created may be limited. Management bodies: executive (sole or collegial), supreme (supreme collegial body) and supervisory (board of trustees).

The foundation is created to manage the inheritance, that is, what the testator bequeathed. In addition, the fund's property consists of income received through the use of inheritance.

The fund operates for the benefit of a third party - a beneficiary, determined either by the testator independently or by the fund's management bodies (if the testator so wishes).

The inheritance fund does not deprive persons entitled to an obligatory share in the inheritance from receiving it, however, if such a person is a beneficiary of the fund, he is deprived of the obligatory share.

The activities of the fund are regulated by the charter and management conditions. The name must include the words “hereditary fund”. The Fund may be liquidated:

by a court decision on general grounds (for example, in connection with gross violation law allowed at creation);

upon expiration of the period for which it was created;

upon the occurrence of circumstances specified in the conditions of management of circumstances;

if within 1 year from the moment of creation of the fund, it was not possible to form its management bodies.

The property of the liquidated fund is transferred to the beneficiaries. The distribution procedure is determined in the management conditions and may depend on the scope of rights to receive property or the amount of income from the activities of the fund. Management conditions may provide for a different procedure for the distribution of property, including transfer to third parties. If it is impossible to identify such persons, the property is transferred to ownership Russian Federation.

Reorganization of the inheritance fund is not permitted.

Creation order

The decision to create an inheritance fund is made by the founder when drawing up a will. The decision must contain information on the establishment of the hereditary fund, on the approval of the charter and terms of management, on the procedure, size, methods and timing of the formation of the fund’s property, as well as persons appointed to the management bodies or on the procedure for determining such persons.

The documents for registration of the fund are sent by a notary.

Control order

The inheritance fund is managed by an executive body, individual or collegial. Its composition may include individuals and/or legal entities, with the exception of the beneficiary.

The creation of a supreme collegial body and a board of trustees must be provided for in the charter. These bodies may include beneficiaries.

These bodies can be given broad powers, including the right to approve fund transactions. Thus, the testator is able to provide the heirs with a mechanism for monitoring the activities of the fund.

Beneficiary

The identity of the beneficiary (heir) is determined in the terms of management. The law establishes that both specific persons (individuals or legal entities) and entire categories of persons from an indefinite circle can act in this capacity. In addition, the burden of determining the beneficiary can be shifted to the fund’s management bodies (although they must still be guided by the algorithm from the conditions). There are exceptions - a commercial organization cannot be a beneficiary.

The beneficiary has the right:

require the establishment of a foundation in accordance with the will;

receive fund property in accordance with the conditions;

waive the right to receive property;

require an audit of the fund’s activities;

become a member of the highest collegial body of the fund (if provided for by the management conditions);

demand compensation for losses incurred due to violation of the terms of fund management.

The beneficiary and the fund are not liable for each other's obligations. The rights of the beneficiary are not alienable, are not inherited and are not transferred in the event of reorganization (with the exception of transformation). After his death (liquidation), new beneficiaries are determined in accordance with the terms of management.

Important point! The law does not directly answer how to get out of a deadlock situation if conditions do not allow the identification of a new candidate. We believe that in this case there are grounds for going to court with a demand to make changes to the management conditions, and if such changes could not be made, with a demand to liquidate the fund on the basis general provisions Civil Code of the Russian Federation on funds.

2. The Fund can be liquidated only on the basis of a court decision made at the request of interested parties, if:

2) the goals of the fund cannot be achieved, and the necessary changes to the goals of the fund cannot be made;

Civil Code of the Russian Federation Article 123.20. Change of the charter and liquidation of the fund

Let us remind you that if after liquidation it is impossible to determine the person to whom the property is transferred, in accordance with the court decision it will become the property of the Russian Federation.

Taxation

The legislator has not yet provided any tax benefits for inherited funds and their beneficiaries.

In addition, there are no changes yet related to taxation when distributing profits from an inheritance fund. We believe that such changes will appear in the Tax Code of the Russian Federation before September 2018. The fact is that if the heir receives property directly from the testator, such income is not taxed.

The following types of income are not subject to taxation (exempt from taxation): individuals:

18) income in cash and in kind received from individuals through inheritance...

Tax Code of the Russian Federation Article 217. Income not subject to taxation (exempt from taxation)

It is possible that changes will be made to the Tax Code of the Russian Federation, according to which property received by the beneficiary within the limits of the original inheritance mass will also not be taxed.

Instead of a resume

Until now, the Russian legal system did not have such tools. Classic inheritance constructs simply don't work for this. Attempts to apply corporate agreements raise a lot of questions, and the creation of private funds abroad is inconvenient for conducting business during one’s lifetime, is unclear from a regulatory point of view, and is accessible to a few categories of persons.

A legacy fund potentially provides a lot of interesting opportunities. Appearance new design will help solve a lot of problems: avoid corporate conflicts, take into account the interests of the business, maintain the “status quo” of the remaining partner, provide for heirs, and even provide an opportunity to engage in charity from the other world. Maybe Russia will have its own Alfred Nobel.

Russian President Vladimir Putin signed the law “On Amendments to Parts One, Two and Three of the Civil Code of the Russian Federation.” It provides new opportunities for disposing of property, in particular through inheritance. AiF.ru highlighted the main changes.

What changed?

The main innovation in the procedure for inheriting property is the creation of the institution of hereditary funds. It will expand the opportunities for citizens to dispose of their property, business and capital, which will remain after death.

The innovation is aimed at preserving the business and other assets, which immediately after the death of the testator will be transferred to the management of the fund. Thanks to this, it will be possible to avoid losses that occur in the six months between the date of death of the testator and the receipt of the certificate by the heir. That is, these innovations will be of interest primarily to wealthy Russians who are thinking about who will receive their property.

How is a fund established?

The decision to establish a fund is formalized by the citizen when drawing up a will. This document specifies in detail the conditions for the functioning of the fund: its size, terms of formation of property, conditions for disposing of funds, persons included in the fund’s bodies, etc. All this is determined by the testator during his lifetime and cannot be changed after his death.

The foundation is established after the death of a citizen. The notary conducting the inheritance case, within three days from the opening of such a case, must send an application for registration of the inheritance fund to the authorized state body. The application is accompanied by the testator's decision to establish a fund, which specifies all the conditions.

How does this affect the interests of the heirs?

The inheritance fund becomes an equal heir along with the citizens or organizations specified in the will, or along with the heirs by law.

The innovation protects the interests of the creditors of the deceased, who will be able to make claims for debt payment against all heirs who accepted the inheritance, including the inheritance fund - that is, they can recover money from the fund, and not from other heirs. In general, all the property of the deceased will now be able to transfer to the fund, from which it will already be issued to the individuals or legal entities specified in the will.

Also, the creation of an inheritance fund protects the rights of the testator’s minor children - they can receive money from the fund for a certain period of time and at certain intervals. In general, this will allow wealthy citizens to be sure that the wealth that falls on their young offspring will not ruin their lives.

What funds will the fund exist on?

The fund's property may be replenished as the fund carries out its activities, including through income from property management.

Photo from urist.one

In a year, a new legal institution will be launched in Russia - the inheritance fund. "Pravo.ru" explains why this innovation is needed and how it differs from its foreign analogue - a trust. In addition, the publication’s experts explained why existing form the innovation under discussion looks “half-hearted” and how should the legislator regulate the management of such a fund.

Russian legislators have taken a course towards creating legal institutions that are used in English law, says Mikhail Kyurdzhev, 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.” The next foreign borrowing will come into force in the fall next year. At the end of July this year, Vladimir Putin passed a law that provides for the possibility of creating special inheritance funds in Russia from September 1, 2018. Such entities will be used to transfer property by inheritance, similar to foreign foundations.

The initiator of the emergence of such an initiative was a group of State Duma deputies led by Pavel Krasheninnikov. The author of the idea explained that an inheritance fund is created by people who are thinking about how to preserve their business and who to entrust with the management of their assets after death.

What does the law introduce?

The new law provides that the fund 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 fortune must indicate a whole series of information: about the establishment of the hereditary fund, 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 selection such persons.

When the testator dies, the notary must send an application for registration of the fund to the authorized government agency within three working days. In this paper you need to 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 management of the estate, it will be possible to make payments to those persons whom the owner of the estate indicated in the will. 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, an inheritance fund can be created based on 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 fund if the notary violates the orders of the testator. The charter of the inheritance fund and the conditions for its management cannot be changed except in the case where the beneficiary is recognized as an unworthy heir (Article 1117 of the Civil Code).

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 inability to form fund management bodies. If the inheritance includes property that requires management (enterprise, securities, etc.), the notary enters into an agreement trust management this property for a period of 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, in particular, in the USA, Great Britain and other countries, the common law institution for such purposes is called a trust, says Bogdan Marchenkov, lawyer AB" " . Trusts first appeared in England back 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 remedy against inheritance tax.

Thus, English lawyers improved the form of property ownership: the assets belong to the trust, but are controlled by the previous owner of the estate. Typically, such funds are created abroad by businessmen and very rich people during their lifetime. They do this not only to support relatives after their death, but also to benefit society: funds from the fund can be spent in the interests of a specific university, hometown, an entire 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 June 29, 1900 according to the will of the Swedish inventor Alfred Nobel.

The scientist took 94% of his fortune (SEK 31 million) 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 was invested, only the profit goes to the premiums. In 2016, the bonus amount was $1.1 million.

Ford Foundation

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

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

The board of trustees of 15 people was headed by Henry Ford Jr., grandson of the company founder, new members are elected by the board itself

By 1974, the fund sold the car company and began investing. Now the Ford Foundation is one of the largest charitable organizations in a world with assets $11.9 billion

Welkom Foundation

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

All his assets were transferred Welcome Trust.

The fund now operates as a non-profit organization with assets of £ 18 billion, through which it sponsors medical developments.

Bosch Foundation

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

The fund owns 92% shares concern and is financed by its dividends.

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

Why are Russian trusts 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% Soviet heritage. According to the expert, the Russian similarity to Anglo-American trusts is initially inferior to their 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 estate fund is liable 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 , new fund can solve the problem of heirs when it is not possible to manage the business in the time period between the death of the owner of the estate and receipt of the inheritance. While such a deadline approaches, the heir sometimes has nothing left to receive, the lawyer explains: “Either unscrupulous partners have already taken everything into their own hands, or due to stagnation, the business collapsed on its own under the influence of free competition processes.” Alena Bachinskaya, lawyer, agrees with colleagues that the target audience of the initiative under discussion are businessmen and other people with significant assets: “In other cases, using such a fund simply does not make much sense.”

Marchenkov sees several goals in the emergence of the institution under discussion: 1) Professional management property transferred to such a fund allows it to be preserved and even increased. 2) The heirs of the deceased receive a certain amount of maintenance. 3) It will be possible to prevent the division of inherited property. However, these goals can be achieved now within the framework of a will and a trust agreement (Article 1173 of the Civil Code), the expert emphasizes. Nevertheless lawyer, partner of KA Pavel Khlustov I am sure that in the next 5-10 years the innovation under discussion will not be popular among Russian testators. He explains his skepticism by several factors: 1) The circle of wealthy individuals whom the inheritance fund can help is not yet wide enough in our country. 2) Most of the assets of such citizens have been transferred abroad, and their Russian property is usually wrapped in a network of offshore companies or registered in nominal names. 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, summarizes Khlyustov.

What are Russian inheritance funds missing?

Denis Arkhipov, AB partner" " , notes that the law offers a half-hearted solution - only posthumous personal funds: “And in foreign legal systems it is possible to establish a personal fund during the life of the testator.” According to the expert, it is important that the owner of the fortune sees 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 inheritance funds. The department argued that such funds could be used for dishonest purposes - to evade fulfillment of obligations to the testator's creditors. However, this problem can be solved by providing creditors additional rights, the lawyer notes: “And do not make a complete ban on lifetime funds.”

Problematic aspects of the work of hereditary funds in Russia:

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

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

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

4) The law does not make changes to 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.

Recently, a law was approved that makes it possible to organize a new type of 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 regarding the disposal of their funds and assets after death. Changes, according to the new laws, will be made to civil legislation.

What it is?

An inheritance fund is a unique, hitherto non-existent way of disposing of funds after the death of the founder. The possibility of its creation will be of interest to wealthy citizens who are worried about maintaining their own business and transferring management to reliable managers. The inheritance fund for ordinary people is quite burdensome with the costs of its management. 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.
• Controls.

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 to organize the fund, on the one hand, is an integral part of the testamentary document, and on the other hand, it is understood that the wish of the testator 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 legally, including their right to a share after entering into an inheritance after the death of an individual. The heirs participating in the activities of the foundation are not the legal holders of ownership of the testator's property. This implies a restriction on the intended use of the organization's property, which is fundamentally different from the unlimited possession of inherited wealth. The creation of a new subject of the right of inheritance replaces the previously familiar relations of participation in the management of the fund or the acquisition of dividends from it with new ones.
• The founder of the fund 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 fund 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 heirs enter into an inheritance after death. The foundation exists separately in civil society without belonging to any individual, even if he inherited it after the death of its founder.
• A fund is a legal entity.
• The activities of the foundation are non-commercial.
• The property transferred to the fund must have its intended use. The organization is a non-profit enterprise without membership, 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 causes useful to civil society. This legal entity uses 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, the creation of an inheritance fund will be carried out by a notary after the death of a citizen with the further transfer of existing assets to it. The notary must act in accordance with the will of the testator.

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

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

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

• The notary officer is given three days to send to the government 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.
• Assets are managed without specifying a period or for a time-limited period in accordance with the conditions set out in its charter.
• All inherited property is transferred to the foundation.
• A portion of the organization's property is allocated to the heirs at the time they enter 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. Innovations in the law provide for a special procedure for creating a governing council. Before submitting an application for registration of a fund, the notary considers the issues of creating the governing bodies of the fund. If management bodies are not created within a calendar year, the organization may be liquidated at the request of the beneficiary or the state regulatory body. In this case, the fund is not registered and does not become a legal entity. Legal form a fund requires high-quality management and high competence of board members, which are typically characteristic of corporate organizations.

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

• Managing the organization under the same conditions is impossible for reasons that could not be predicted.
• The beneficiary is an unworthy recipient of the inheritance, provided that this was not known at the time the foundation was created.

Beneficiary

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

• He has the right to receive all or only part of the fund's assets.
• His rights are inalienable and cannot be enforced against his debts.
• His rights in relation to the fund are not inherited.
• If the beneficiary is a legal entity, then its 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 entity.
• He is not liable for the obligations of the fund, and the latter, in turn, is not liable for its obligations.
• An heir who has rights to an obligatory share and is a beneficiary loses the right to claim the portion due to him. If the successor, during the period for accepting the inheritance, declares a waiver of the rights of the beneficiary, then he has the right to claim his share.

Taxation of the fund

The tax legislation of our country does not provide for special features for the fund. Taxation of the 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 own businesses, choose a fund as a form of disposal of property after death. Driven by attractive fiscal policies for income acquired from a fund in Europe, this form of end-of-life estate management is in demand among European citizens with high tax rates on personal income.

Foundation and family law

The issues of the relationship between the institution of a fund in Russia and the basics of family legislation on legal relations in the field of joint property of spouses, the rights of the other spouse, and evidence for invalidating a single decision to create such a fund have not been fully worked out. The new law makes no reference to the norms of family law governing the legal relations of spouses. This indicates the birth of a new judicial practice. This applies, in particular, to inherited funds.

Foreign examples

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

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

Differences between domestic and foreign funds

Let us describe the significant differences between European and Russian funds:

• Existence foreign funds public law and private foundations. Such structures are classified as private law legal entities are entered into the commercial register. For example, the Liechtenstein deposit fund, constituent documents which must be sent to the trade register, but information about it is closed from public coverage in the media to maintain anonymity about this organization. The legal personality of a Liechtenstein foundation is characterized by transactions through the representation of proxies. The responsibility for disclosing information about the beneficial owner and members of the collective management body is transferred to deposit assets.
• European legislators limit the range of possible purposes for the use of assets by hereditary funds. The goals must be useful to civil society. commercial activity is allowed only if it is directly aimed at achieving the stated goals.
• An impressive amount of authorized capital of organizations in European countries. If for such a fund in our country the minimum amount of authorized capital is not limited by law, then for a 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, to create a foundation, a statement from the testator to separate his personal property into the 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 fund in Europe may provide for the right of priority to an obligatory share to the heirs and (or) the right of privilege of payments on an ongoing 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 regulatory authorities in European countries includes institutions for control of public and 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.
• Availability of specialized courts that hear disputes arising from legal relations in funds.

Recognition of Russian funds abroad

The situation regarding 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 government agency. When transferring property located outside Russia to a fund in our country, the task of taking possession of property located abroad becomes difficult to solve. In this case, one should turn to international legal norms for the recognition of foreign official documents by virtue of the provisions of an 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 resolving issues of the needs of citizens on a daily basis in family and inheritance legal relations.

There is little 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 of law enforcement practice, with the expectation of reasonable consideration of cases in the courts.

The most famous funds

Abroad, funds are created by wealthy people in order to:

• ensure the well-being of your family and relatives after your death;
• benefit society.

We list the well-known hereditary organizations:

• Nobel Foundation. Founded at the beginning of the twentieth century according to the will of the famous Swedish inventor. The scientist left his entire fortune, with a few exceptions, to pay several prizes a year (physics, chemistry, physiology and medicine, literature, world recognition). The bulk of the fund's assets are invested in projects. The bonuses are financed from investment profits. The amount of the award to date has amounted to about a million dollars.
• Ford Foundation. The organization was founded by Henry Ford's son, who gave him the first twenty-five thousand dollars. After he and his father died, the foundation received all of their assets. The board of trustees of fifteen people was headed by the youngest grandson of the company's founder. New members are elected by the council itself. Now the foundation is engaged in investments and is one of the largest charitable organizations in the world.
• Welkom Foundation. After the death of the founder of a pharmaceutical holding in the UK, Henry Wellcome, all his property was given to the organization bearing his name. It now operates as a not-for-profit entity with assets of eighteen billion pounds sterling, funding developments in the field of medicine.
• Bosch Foundation. Based on the decision of the founder of the German concern Bosch, an organization named after him was created. The fund owns part of the concern's shares and operates through its dividends.

These are the most famous and rich non-profit organizations in the world.

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