Transferring a red book to your child: Should it be given as a gift or an inheritance?
1. Giving children land use rights:
Changing the name of the "red book" is a common way people call it when carrying out procedures for registering changes from transferring, donating, etc. land use rights, land use rights and assets attached to land. Pursuant to the provisions of Article 167 of the 2013 Land Law, land users have the right to convert, transfer, lease, sublease, donate, inherit, mortgage, and contribute capital to use rights. land. Thus, it can be seen that land use rights, land use rights and assets attached to land are one of the property rights whose name is on the land use rights certificate. legal and recognized by the State.
According to the provisions of Article 547 of the 2015 Civil Code, a property donation contract is an agreement between the parties whereby the donating party hands over its property and transfers its ownership rights to the receiving party. Donate without requiring compensation and in this donation the donated party agrees to receive. Thus, donating land use rights is a form of donating property. Donation of land use rights can be understood as the transfer of land use rights by a land user to another person without asking for compensation. compensate and the recipient agrees to receive. The donation is without compensation, so the party transferring land use rights to the donee is not obliged to pay the donor any benefits. Therefore, the condition for performing a donation contract is that the recipient must agree to receive the donated property.
To gift children land use rights, it is necessary to meet the conditions prescribed in Clause 1, Article 188 of the 2013 Land Law, specifically as follows:
Condition 1: Have a Certificate, except in the following two cases:
Case 1:For inherited assets that are land use rights and the inheritor is a foreigner or a Vietnamese residing abroad who is not subject to purchasing housing attached to land use rights, a certificate will not be issued. but has the right to donate.
Case 2: Pursuant to Clause 1, Article 168 of the 2013 Land Law, you are entitled to donate land when:
+ Land users who convert agricultural land use rights are entitled to donate land after a decision on land allocation or land lease is issued;
+ When land users inherit land use rights, they can exercise the right to donate when there are conditions to issue a certificate (no need for a certificate).
Condition 2: Land use rights are not distrained to ensure judgment enforcement;
Condition 3:The land is not in dispute;
Condition 4: During the land use term.
The donation of land use rights from parents to children must be made into a contract of donation of land use rights (Content of the contract is agreed upon by both parties) notarized or authenticated according to the provisions of Points a and d. Clause 3, Article 167 Land Law 2013. Donation contracts can be notarized at notary organizations, or notarized at the commune-level People's Committee where the land is located. Requires contracts giving children land use rights to be notarized and authenticated because this is a mandatory condition to record that the gift of land use rights from parents to children is legal; At the same time, it is also the basis for transferring land use rights from parents to children and to prove that the contract to donate land use rights from parents to children is not invalid according to the provisions of law.
2. Inheriting land use rights according to will to children:
Pursuant to the provisions of Article 612 of the 2015 Civil Code, inheritance of land use rights can be understood as the transfer of land use of the deceased (the deceased's personal property, the deceased's property in common property). with others) to the heirs according to the will or divided according to the provisions of law.
Land use rights are considered an inheritance that the person with land use rights dies and leaves to his or her heirs. Accordingly, Article 624 of the 2015 Civil Code stipulates that a person who leaves a will is expressing his or her personal will to transfer his or her property to another person after that person dies, so the person Having the right to use land, leaving a will to inherit to their children is their wish before they die. They can leave it to anyone, even if that person has been deprived of inheritance rights by law, but the person leaving the will knows If they still leave it, they will still enjoy it.
A will leaving inheritance rights to children can be made in writing or orally. A written will is legal when it is notarized or authenticated. If it is not notarized or authenticated, it must meet the condition that the testator was lucid and lucid while making the will; not be deceived, threatened or coerced; and the content of the will does not violate legal prohibitions or is not contrary to social ethics; The form of the will does not violate the provisions of law. An oral will is considered legal if the oral testator expresses his/her final will in front of at least two witnesses and the witness records it, signs or fingerprints immediately after the testator. The mouth expresses the final will. Within 05 working days from the date the oral testator expressed his/her final will, the will must be certified by a notary public or competent authentication agency with the signature or fingerprint of the witness.
However, when parents want to leave a will to inherit land use rights for their children, they should make a notarized or authenticated document to avoid future disputes.
If a will is made that is not the final will of the testator, the testator can amend, supplement, replace or cancel the will at any time. However, according to the provisions of Article 644 of the 2015 Civil Code, in the case of a person with land use rights making a will in the case of minor children, father, mother, wife, husband; Adult children who are unable to work and are not allowed by the testator to enjoy the inheritance or are only allowed to enjoy the inheritance less than two-thirds of the inheritance when dividing the estate according to law, they will still enjoy the inheritance. inheritance equal to two-thirds of an heir's share according to that law.
3. Should I give the land as a gift or leave the land use rights to my children?
3.1. Advantages and disadvantages of giving children land use rights:
* Advantage:
– Land use rights are the private property of parents or common property of parents, parents have the right to give their land use rights to any child without being prohibited or restricted by law if they meet the conditions according to the provisions of law on donating land use rights.
– Have the right to make a conditional contract to donate real estate, which means that the donated party can be required to perform one or more obligations before or after the donation according to the provisions of Article 462 of the 2015 Civil Code, however, The donation must not violate legal prohibitions or be contrary to social ethics. Thus, when making a contract to give a child land use rights that have the conditions of donation and if the child does not comply, the parents can cancel the gift contract and give the land use rights to someone else. .
For example: Parents have the right to conditionally donate real estate to their children, as children have the obligation to raise and take care of their parents, not to kick their parents out of the house, not to mistreat or torture their parents, …
– The gift can be completed in a short time, your children can receive assets while you are still alive. Compared to inheritance, especially legal inheritance, donating real estate has fewer disputes between children because the right to whom to donate, how much area to donate, when to donate, etc. are all decided by the parents. , given to children entirely by the will of the parents.
* Limit:
Giving children land use rights comes from the will of the property owner, regardless of factors such as law. Therefore, compared to legal inheritance, gifting land use rights can cause conflicts and dissatisfaction among children if the rights and benefits are not equally divided. Because of the current reality, many families still prioritize giving to sons over daughters, and many people give to their children unfairly, easily causing loss of family affection and loss of solidarity.
3.2. Advantages and disadvantages of leaving a will to inherit land use rights for children:
* Advantage:
– When dividing inheritance according to the law: Inheritance according to the law does not depend on the will of the parents but is based on the rules on inheritance according to the regulations that enjoy equal inheritance rights, parents do not have priority. For one or several children, dividing the inheritance according to the law ensures fairness and does not cause disunity (equal division).
– When dividing inheritance according to the will: parents have the right to leave all of their land use rights to a child or anyone according to the parents' wishes, except in cases where the child is under 18 years old or over 18 years old but People who are unable to work still enjoy inheritance according to the law when their parents die, regardless of the content of the will.
Compared to giving without conditions such as having to care for and nurture parents, etc., transferring inheritance according to a will is only effective after the parents die. Thus, the time to transfer the name does not have to be done quickly right after the gift. Furthermore, parents can amend or change the content of the will (change heirs, beneficiary area, etc.) if the child does not fulfill their obligations and duties to their parents. Based on Clause 5, Article 643 of the 2015 Civil Code, when a person leaves multiple wills for one property, only the last will will have legal effect. Accordingly, the last will left by the parents upon death is the valid will and the children must base on this last will to divide the inheritance.
* Limit:
– When dividing inheritance according to law: The subjective will of the person leaving the property cannot be expressed because when dividing according to law, the heirs will enjoy equal parts of the inheritance. Thus, after the death of parents, it is easy for disputes to arise over land use rights and home ownership rights between heirs.
– When dividing inheritance according to the will: when parents leave inheritance according to the will, the beneficiary's name will be transferred when the parents die, so risks arise related to disputes over inheritance, which is the right to inherit. Land use and house ownership between heirs, especially when the content of the will is for only one person and there are no heirs, regardless of the content of the will. Many heirs who do not inherit according to the will due to greed in wanting appropriate property often rely on illegal will reasons such as not having it in writing, a will made when they are not of sound mind,... to compete. challenge. There are also many cases where the parents are old, weak, and not mentally alert, and the child intentionally makes a fraudulent will for the parents to sign/sign in order to appropriate property for themselves, etc.
Legal documents related to the article:
– Civil Code 2015;
– Land Law 2013.