When a loved one passes away, their property is divided among relatives. But what happens if a son or daughter died before their parents? Do grandchildren lose their right to inherit from their grandparents?

Many people think that in such a case the right to property is lost. This is not so. The Civil Code of the Republic of Kazakhstan contains a provision: inheritance by right of representation. It allows children to take the place of their deceased parent and receive the share that would have been due to them.

The very idea of the right of representation dates back to antiquity. The jurists of Ancient Rome were the first to establish the principle: "It is just that grandchildren should succeed in place of their father." The Romans understood that the untimely death of a parent should not deprive children of family property. This principle of justice has endured through the centuries and today underpins the civil legislation of Kazakhstan.

HOW THIS MECHANISM WORKS

If a son or daughter had been alive at the time of the opening of the succession, they would have received their share of the estate. If they died before the testator (or simultaneously with them), their share does not disappear – it passes to their children (the grandchildren of the deceased).

In this case, the grandchildren inherit directly from their grandparents. They do not "re-register" property on behalf of their deceased parent but instead become direct statutory heirs in their own right.

The law clearly defines the circle of persons who replace deceased relatives:

• First priority – grandchildren, great-grandchildren, and their descendants. They replace the deceased children of the testator. There is no restriction on the depth of generation, although in practice cases beyond great-grandchildren are rare.
• Second priority – nephews and nieces. They replace the deceased brothers and sisters of the testator.
• Third priority – cousins. They replace the deceased uncles and aunts of the testator.

Important: Descendants of heirs by right of representation mentioned in the second and third priority groups – for example, children of the testator's nieces and nephews, or children of cousins – do not inherit by right of representation but are included in other, subsequent classes of statutory heirs.

Ascending relatives of statutory heirs – grandparents, great-grandparents – are not called to inheritance by right of representation. They inherit by law within the second and fourth priority classes respectively.

Descendants divide among themselves only that share which their deceased parent would have received. This share is distributed equally among them.

For example, a deceased person leaves behind two brothers and three nieces (daughters of their predeceased sister). The inheritance is divided into three equal parts: the living brothers each receive 1/3, and the 1/3 share of the deceased sister is divided equally among the three nieces – each receives 1/9.

WHAT HAPPENS IF ONE OF THE HEIRS DOES NOT ACCEPT THEIR SHARE

Let us consider a real-life scenario.

After Aliya's death, she was survived by her daughter Dinara and her son Daniyar, who had died several years earlier. Daniyar's share was to pass to his daughters – Aigul and Aruzhan.

After the succession opened, Dinara and granddaughter Aigul applied for the documents. The second granddaughter, Aruzhan, filed no application within the six-month period.

Who receives Aruzhan's share? Under the law of the Republic of Kazakhstan, if one of the heirs by right of representation does not accept the inheritance or renounces it, their share does not go to other relatives but is divided among those who have entered into their rights. In this situation, Aigul would receive the entire father's share (1/2).

WHEN THE RIGHT OF REPRESENTATION DOES NOT APPLY

1. There is a will. If the deceased made a will, the estate is distributed strictly according to their wishes.
2. The deceased parent was declared an unworthy heir. If the son had committed unlawful acts against the testator during his lifetime and lost the right to inherit, his children (the grandchildren) also cannot take his place.

Notary's advice: If your parent died before their grandmother, grandfather, uncle, or aunt, you have every legal right to claim their property. Do not miss the statutory six-month deadline – consult a notary to protect your rights and seek proper guidance.

Lyudmila KUTENKO,
Jurist, Republican Notary Chamber