Divide the estate when the time limit for initiating an inheritance lawsuit expires in Vietnam

In Judgment 28/2017/DS-ST dated September 28, 2017 of the People's Court of Xuan Truong district, Nam Dinh province to hear the case of inheritance dispute but the statute of limitations for requesting the division of the estate has expired

On September 28, 2017, at the headquarters of the People's Court of Xuan Truong district to hear the case of an inheritance dispute between Plaintiff Mrs. Phan Thi L and Defendant Mr. Phan Van T and his wife, Mrs. N ( The authorized representative of Mr. T and Mrs. N is Mr. Phan Quoc H, who is also a person with related rights and obligations in the case).

Mr. Phan Duc Trach died on March 10, 2006 and Mr. Pham Thi Ran died on October 19, 1977. They had 9 children, including Mr. Phan Van T and Mrs. Phan Thi L. Mr. Trach and Mr. Tran died leaving a plot of the land area of ​​527m2 and a house on the land. Now Ms. L proposes to divide the inheritance of Mr. Trach and Mr. Ran.

The People's Court of Xuan Truong district, Nam Dinh province has accepted the petition of plaintiff Ms. Phan Thi L on the division of inheritance. Pursuant to Clause 1, Article 623 of the 2015 Civil Code, the Court only divided Mr. Phan Duc Trach's estate according to a value equal to ½ of the total value of the common heritage of Mr. Tran and Mr. Trach. The inheritance of Mrs. Pham Thi Ran is ½ of the total value of the common heritage, which Mr. Phan Quoc H is entitled to.

Compare the provisions in Clause 1, Article 623 of the 2015 Civil Code of Vietnam as follows:

Article 623. Prescriptive periods with respect to inheritance

1. The prescriptive period with respect to a claim of an heir for distribution of an estate shall be thirty years regarding immovable property or ten years regarding movable property from the time of commencement of the inheritance. Upon the expiry date of the aforesaid period, the estate shall belong to the estate administrator. In case where there is no estate administrator, the estate shall be dealt with as follows:

a) It shall belong to the person possessing it as prescribed in Article 236 of this Code;

b) It shall belong the State if there is no possessor prescribed in Point a of this Clause.

2. The prescriptive period with respect to a claim of an heir for a declaration of right of inheritance of the requester or to disallow the claim to inheritance of another shall be ten years from the time of commencement of the inheritance.

3. The prescriptive period with respect to a claim for an heir to fulfill property obligations of the deceased shall be three years from the time of commencement of the inheritance.

Phan Duc Trach died on March 10, 2006, so the statute of limitations for requesting inheritance still remains. Pham Thi Tran died on October 19, 1977, the time limit for requesting inheritance has expired from October 2007.

Mr. Phan Quoc H - the son of plaintiff Mr. Phan Van T, is the person who is managing the entire inheritance since Phan Duc Trach's death. The fact that Mr. H has managed the entire land plot since Mr. Trach's death is an objective fact that has been confirmed by the government. In addition, Mr. H also paid land use tax from about 2012 to 2015.

The Xuan Truong District People's Court has sufficient grounds to apply the statute of limitations for enjoying civil rights under Clause 1, Article 623 of the Civil Code 2015 to determine the part of Pham Thi Ran's estate, leaving no will, and expired. The inheritance division mark belongs to the heir who is managing the estate, Mr. Phan Quoc H.

However, there are still many problems with the inheritance statute of limitations. Therefore, to solve this problem in 2018, the Supreme People's Court issued Document 01/GD-TANDTC to answer a number of professional problems, including the issue of the statute of limitations for initiating a lawsuit against an inheritance that is real estate, according to which:

“For the judgment of inheritance opened before September 10, 1990, the statute of limitations for initiating a lawsuit to divide the inheritance being immovable shall comply with the provisions of Article 36 of the Ordinance on Inheritance 1990  and the guidance in Decision No. 02/HDTP dated October 19, 1990 of the Council of Judges of the Supreme People's Court guiding the application of a number of provisions of the Ordinance on Inheritance, namely: the statute of limitations for initiating a lawsuit is counted from September 10, 1990.”

Compared with the provisions of current law of Vietnam, in this case, the statute of limitations for claiming inheritance for the estate of Mr. Ran who died on October 19, 1977 will be counted from September 10, 1990, the statute of limitations Mr. Chan's inheritance division from the time of opening the inheritance to the time of requesting a lawsuit is 27 years, there is still the statute of limitations for initiating a lawsuit to divide the inheritance. If this provision is applied, the People's Court of Xuan Truong district, Nam Dinh province still has to divide the estate of Mr.

In conclusion, the thing to note in this judgment is that when the statute of limitations for inheritance has expired, the Court will apply the statute of limitations for enjoying civil rights, specifically as follows: When the statute of limitations expires, the estate will belong to the heir who is managing the estate.