Lawyers advise on inheritance law
Legal grounds
- Civil Code 2015.
- Law on Marriage and Family 2014.
- Law on Child Adoption 2010.
Inheritance rights and the right to enjoy an individual's inheritance
According to the provisions of Article 609 of the 2015 Civil Code, individuals have the right to make a will to dispose of their assets; leave your property to your heirs at law; inherit according to will or law. This right of all individuals is equal.
Inheritors according to the provisions of law do not depend on the level of civil act capacity. People with or without capacity or people with incomplete capacity have the right to inheritance. In this case, the guardian will help these people carry out their rights and obligations within the scope of their property.
Time and place to open inheritance
Article 611 of the 2015 Civil Code stipulates that the time to open inheritance is the time the property owner dies. In case the Court declares a person dead, the time of opening the inheritance is determined as follows:
- After 3 years from the date the Court's decision to declare her missing took legal effect, there is still no confirmation that she is still alive;
- Disappeared during the war after 5 years from the end of the war but there is still no confirmed news that he is still alive;
- Suffering an accident, disaster or natural disaster and after 02 years from the date the accident or disaster or natural disaster ended, there is still no confirmed information that they are still alive, unless otherwise prescribed by law;
- Been missing for 5 consecutive years or more and there is no confirmation that they are still alive. This time limit is calculated from the date of last news about that person; If the date of the last news cannot be determined, this time limit is calculated from the first day of the month following the month of the last news; If the date and month of the last news cannot be determined, this time limit is calculated from the first day of the year following the year of the last news.
- Disappeared for five years or more and there is no confirmation that he is still alive.
According to the above regulations, the basis to prove the time of death of a person is the death certificate, the Court's decision declaring a person dead. Determining the time of death (or the time of opening the inheritance) is important because this is also the time when the rights and obligations of the heir arise.
Regarding the location of opening the inheritance, it is the last residence of the person leaving the legacy. If the final place of residence cannot be determined, the location for opening the inheritance is the place where all or most of the estate is located.
Heir
An heir according to the provisions of Article 613 of the 2015 Civil Code is an individual or organization that exists at the time of opening the inheritance.
- If it is an individual, it must be alive at the time of opening the inheritance or born and alive after the time of opening the inheritance but conceived before the death of the person leaving the inheritance.
- In the case of an organization or legal entity, it only exists with testamentary inheritance. In case the heir under the will is an agency or organization, it must be an agency or organization that existed at the time of opening the inheritance.
In addition, Article 622 of the 2015 Civil Code stipulates that in case the property does not have an heir according to the will, according to the law, or has but is not entitled to the inheritance, refuses to receive the inheritance, the remaining property will be left. after fulfilling property obligations without a State heir.
Inheritance according to will
Will concept
Article 624 of the 2015 Civil Code stipulates: A will is an expression of an individual's will to transfer his or her property to another person after death. A will can be made before or at the time of the testator's death.
The person who made the will
To ensure that the will fully expresses the will of the individual, Article 625 of the 2015 Civil Code stipulates:
- The person making the will must be an adult, unless he or she suffers from a mental illness or another illness that makes him unable to perceive and control his or her actions.
- People from fifteen to eighteen years old can make a will if their father, mother or guardian agrees.
Article 626 of the 2015 Civil Code stipulates that the testator has the following rights:
- Appointment of heirs; disqualify the heir from enjoying the inheritance.
- Allocate the inheritance to each heir.
- Set aside a portion of assets in the heritage block for bequests and worship.
- Assign obligations to heirs.
- Appoint the keeper of the will, the administrator of the estate, and the person to distribute the estate.
Legal will
Article 630 of the 2015 Civil Code stipulates legal wills as follows:
- All conditions regarding the subject are met: The testator was lucid and wise while making the will; not be deceived, threatened or coerced;
- Content conditions: not contrary to law or social ethics;
- Formal conditions: not contrary to law, meets requirements in special cases (see more content below). A written will that is not notarized or authenticated is only considered legal when it meets the above conditions regarding subject and content.
Form of will
According to the provisions of Article 627 of the 2015 Civil Code, wills must be made in writing; If it is not possible to make a written will, an oral will can be made.
An oral will is made in cases where a person's life is threatened by death due to illness or other causes and a written will cannot be made. An oral will can be made. After 3 months from the time of the oral will, if the testator is still alive, alert and clear-sighted, the oral will is automatically annulled.
Written wills include the following types:
- With or without witnesses;
- Notarized or authenticated.
Thus, the testator can choose one of the forms of expression of the will (orally or in written form). However, in some special cases, the law requires the form of the will to recognize its legality as follows:
- For wills of people from fifteen years old to under eighteen years old, the law requires that the form must be made in writing and must be approved by the father, mother or guardian on the making of the will.
- The will of a person with physical limitations or of an illiterate person must be made in writing by witnesses and notarized or authenticated.
Note: A written will must not be abbreviated or written in symbols; If the will consists of many pages, each page must be numbered and bear the signature or fingerprint of the testator.
Legal conditions of oral wills
An oral will is considered legal if the person giving the oral will expresses his/her final will in front of at least 2 witnesses and immediately after that the witnesses record it, sign or fingerprint it. Within 05 days from the date the oral testator expressed his/her final will, the will must be notarized or authenticated according to the provisions of law.
Requirements for written will forms
The first, For written wills without witnesses, according to Article 633 of the 2015 Civil Code, the testator must write and sign the will himself and comply with the required content according to regulations. in Article 631.
Monday, For written wills with witnesses, according to Article 634 of the 2015 Civil Code, if the testator does not write the will himself, he can type it himself or ask someone else to write it or type the will, but there must be at least two witnesses. The testator must sign or fingerprint the will in front of witnesses; Witnesses confirm the testator's signature and fingerprint and sign the will.
Note the witness conditions: Everyone can witness the making of a will, except the following people:
- Heirs according to the will or law of the testator.
- Person with property rights and obligations related to the content of the will.
- Minors, people who have lost civil act capacity, people with difficulty in cognition and behavior control.
Tuesday, Notarized or authenticated will.
Except where required by law, notarization or authentication of a will is the right of the testator. However, to have the will notarized, the testator must follow the regulations on procedures for making a will at the notary practice organization or the commune-level People's Committee in Article 636 of the 2015 Civil Code in front of the person. have the right to notarize, authenticate,
To ensure objectivity, Article 637 of the 2015 Civil Code also stipulates cases where Notaries and authorized persons of the Commune-level People's Committee are not allowed to notarize or authenticate wills if:
- Heirs according to the will or law of the testator.
- A person whose father, mother, spouse, or children are heirs according to will or law.
- Persons with property rights and obligations related to the contents of the will.
A written will has the same value as a notarized or authenticated will
In order to create conditions for testators in situations where they cannot request notarization or authentication, Article 638 of the 2015 Civil Code stipulates types of written wills that are as valid as notarized or notarized wills. authentic, such as the will of an active duty soldier certified by the head of a unit at company level or higher, if the soldier cannot request notarization or authentication, or the will of a person traveling on a ship or plane. with confirmation from the commander of that vehicle. It can be seen that the general validity condition in these cases is that there must be a witness from a third party who is in charge of the agency, unit or organization where the person leaving the estate made the will.
Contents of the will
The law requires the following minimum information to be included in the content of the will in order for the will to be effective, including:
- Date, month and year of making the will;
- Full name and place of residence of the testator;
- Full name of person, agency or organization entitled to inherit;
- The legacy left behind and the place where the legacy is located;
Thus, these mandatory contents have been simplified compared to the 2005 Civil Code to reduce cases of partial invalidity of the will in practice.
Modify, supplement, replace or cancel wills
Article 640 of the 2015 Civil Code stipulates that the testator can amend, supplement, replace or cancel the will at any time.
In case the testator supplements the will, the will and the supplement have the same legal effect; If part of the will and the additional part conflict, only the additional part will have legal effect.
In case the testator replaces the will with a new will, the previous will is annulled.
Regulations on depositing wills
To avoid loss or damage of the will and ensure that the wishes of the testator are not violated by others, Article 641 of the 2015 Civil Code stipulates that the testator can request the notary agency to save the will. keep or send someone else to keep the will. The person holding the will has obligations to ensure the safety and confidentiality of the will according to law.
Regulations on lost or damaged wills
According to the provisions of Article 642 of the 2015 Civil Code, from the time of opening the inheritance, if the will is lost or damaged to the extent that it does not fully express the will of the testator and does not If there is any evidence proving the true wishes of the testator, it is considered that there is no will and the provisions on inheritance according to law will apply.
In case an undivided estate is found and a will is found, the estate will be divided according to the will. During the statute of limitations for requesting division of an estate, if a will is found in a divided estate, it must be redistributed according to the will if the heirs according to the will request.
Legal effect of will
The legal effect of a will is prescribed in Article 643 of the 2015 Civil Code as follows:
Effective date:
The will takes legal effect from the time the inheritance is opened (which is the time the property owner dies).
Partially effective
A will is partially invalid in the following cases:
- The heir under the will dies before or at the same time as the testator;
- The agency or organization designated as the heir no longer exists at the time of opening the inheritance.
- The inheritance left to the heirs under the will is partially lost.
- The inheritance is related to the heirs according to the will, but they do not have the right to enjoy the inheritance and deny the right to receive the inheritance.
In the case of partial invalidity, only the portion of the will related to this individual, agency or organization is invalid.
Completely disabled
- A will has no legal effect if the inheritance left to the heir no longer exists at the time of opening the inheritance.
- When a person leaves multiple wills for a property, only the last will is valid. At that time, previous wills will be completely invalid.
Heirs do not depend on the content of the will
In order to protect the rights as well as ensure the lives of some people in some cases, Article 644 of the 2015 Civil Code stipulates that the following people are still entitled to an inheritance equal to two-thirds of an heir's share: according to law, if the estate is divided according to law, in case they are not allowed to enjoy the estate by the testator or are only allowed to enjoy the inheritance less than two-thirds of that rate, that is:
- Minor children, father, mother, wife, husband;
- The child is an adult and cannot work.
This provision does not apply to people who refuse to receive the inheritance or who do not have the right to enjoy the inheritance according to the provisions of the Civil Code.
Inheritance according to law
Concept
Article 649 of the 2015 Civil Code stipulates: Inheritance according to law is inheritance according to the line of inheritance, the conditions and order of inheritance are prescribed by law.
Cases of inheritance according to law
Inheritance according to the law stipulated in Article 650 of the 2015 Civil Code, applies in the following cases:
- There is no will;
- The will is not legal;
- The heirs under the will all die before or at the same time as the testator; The agency or organization entitled to inherit under the will no longer exists at the time of opening the inheritance;
- People who are designated as heirs under a will without the right to inherit or deny the right to receive the inheritance.
In addition, legal inheritance also applies to the following parts of the estate that are part of a will that is not valid according to the provisions stated above or parts of the estate that are not determined in the will.
Heirs by law
Article 651 of the 2015 Civil Code stipulates heirs at law in the following order:
- a) The first line of inheritance includes: wife, husband, biological father, biological mother, adoptive father, adoptive mother, biological children, and adopted children of the deceased;
- b) The second line of inheritance includes: grandfather, grandmother, maternal grandfather, maternal grandmother, biological brother, biological sister, younger sibling of the deceased; grandchildren of the deceased and the deceased is a grandfather, grandmother, maternal grandfather, maternal grandmother;
- c) The third line of inheritance includes: paternal and maternal great-grandparents of the deceased; paternal uncle, paternal uncle, paternal uncle, paternal aunt, paternal aunt of the deceased; nephew of the deceased and the deceased is a paternal uncle, maternal uncle, paternal aunt, maternal great-grandchild.
The division of inheritance according to law is carried out on the following principles:
- Heirs of the same line enjoy equal shares of the inheritance.
- Those in the next line of inheritance are only entitled to inherit, if there is no one left in the previous line of inheritance because they are dead, have no right to inherit, are disqualified from inheriting or refuse to receive the inheritance.
Inheritance relationship between adopted child and adoptive father and adoptive mother
According to the provisions of Article 24 of the 2010 Law on Adoption, between adoptive parents and adopted children there are full rights and obligations of parents and children. In that spirit, Article 653 of the 2015 Civil Code stipulates that adopted children and adoptive fathers and adoptive mothers can inherit each other's estate and can also inherit the estate according to the law and in case of succession inheritance.
Inheritance relationship between stepchildren and stepfather and stepmother
Article 79 of the 2014 Law on Marriage and Family stipulates that stepfathers and stepmothers have the obligation and right to look after, raise, care for, and educate their stepchildren living with them as if they were biological children. And stepchildren have the obligation and right to care for and nurture their stepfather and stepmother living with them just like their biological father and mother. Stepfathers, stepmothers and stepchildren of the wife or husband are not allowed to mistreat, torture or insult each other.
Continuing the above regulations, Article 654 of the 2015 Civil Code stipulates that stepchildren and stepfathers and stepmothers, if they have a caring and nurturing relationship with each other such as father-child or mother-child, can inherit each other's inheritance and also inherit each other's inheritance. inherit the estate according to the law and inherit the position.
Inheritance in cases where husband and wife have divided common property, are applying for divorce, or are married to someone else
Article 655 of the 2015 Civil Code regulates the inheritance of husband and wife in cases where the husband and wife have divided common property, are applying for divorce, or are married to someone else as follows:
- In case husband and wife divided their common property while the marriage was still alive and then one person died, the surviving person will still inherit the estate.
- In case a husband or wife applies for a divorce but has not been or has been granted a divorce by the Court through a judgment or decision that has not yet taken legal effect, if one person dies, the surviving person will still inherit the estate.
- A person who is a person's spouse at the time of that person's death, even if he or she later marries someone else, still inherits the estate.
Services of Truong Quyen Law Office - Davilaw Branch in the field of inheritance law consulting
- Consulting and drafting wills;
- Consulting on general provisions of law on inheritance;
- Inheritance consulting according to will;
- Consulting on payment and inheritance division
- Consulting on forms of lawsuits to protect rights;
- Consulting on writing lawsuit petitions and guiding lawsuit procedures;
- Appoint a representative lawyer to make complaints and protect customers' rights before competent authorities.