07/10/2022 16:08

What should you know when dividing estate?

What should you know when dividing estate?

Inheritance division is one of the most common legal problems in life as well as in studies. However, the way to properly divide inheritance is still a difficult problem for many people. Hope that the following summary of some notes when dividing inheritance will help you solve this problem in the most accurate and efficient way per your reference.

1. ESTATE IDENTIFICATION

Article 612 of Civil Code 2015 stipulates:

"Article 612. Estates

An estate comprises property which the deceased owned and propert of the which the deceased jointly owned with other people."

Note:

- In the case of the deceased's owned property: Parents divide the land among their children without a clear donation contract. In reality, the courts often rely on evidence showing the will of the deceased before death to determine whether to donate or not. If the deceased's will before their death is to give the land to their children, then this is no longer estate.

- In the case the deceased's property is the common property with other people.

+ If it is common property of members of a household: Currently, there is no clear regulation on the share of each member. The court shall determine as follows: For example, Mr. A's household has 4 members who have legal land use rights to 400m2 of land, then when Mr. A dies, ¼ of the above area will be Mr. A's estate.

+ If it is marital property: only  the Law on marriage and families of 1986 expressly states that marital property is "divided equally". Laws on marriage and families of other years divide marital property based on many factors such as the contribution to the origin of the property…. Therefore, marital property isnt always "devided equally" between hussband and wife.

2. HEIR IDENTIFICATION:

- Heir under a will

Please note cases of the heirs notwithstanding contents of wills

"Article 644. Heirs notwithstanding contents of wills

Where a testator does not grant any of the following persons an inheritance, or grants any such person an inheritance which is less than two-thirds of the share that person would have received if the estate had been distributed according to law, such person shall be entitled to a share of the estate equivalent to two-thirds of the share that he or she would have received if the estate had been distributed in accordance with law:

a) Children who are minors, father, mother, wife or husband of the testator;

b) Children who are adults but who are incapable of working.

- Inheritance at law

+ Determination the relationship of foster parents and adopted children: Pursuant to the Law on Marriage and Family of 1989, only adopted children who have been registered shall be recognized. Then the relation must be determined whether it meets all adoption conditions prescribed by law at the time of arising of their adoption relationships.

+ Determination of husband and wife relationship: In case the husband and wife relation is not registered but is still recognized under the Resolution 35. In case a person has more than one wife but is still specifically recognized if that person got married before the Law on Mariage and Family of 1959 took effect (before 13/01/1960) or that person was a soldier or cadre whose wife or husband in the South gathered to the North and married another man according to Circular No. 60 /TATC dated 22/2/1978. Therefore, it is necessary to determine when the relations is established to have the correct division of inheritance.

+Determination of succeeding heirs

 “Article 652. Succeeding heirs

Where a child of a testator died prior to or at the same time as the testator, the grandchildren of the testator shall inherit that part of the estate which their father or mother would have been entitled to inherit had such father or mother still been alive. If the grandchildren also died prior to or at the same time as the testator, the great-grandchildren of the testator shall inherit that part of the estate which their father or mother would have been entitled to inherit had such father or mother still been alive.”

Note: Only great-grandchildren of the testator shall be entitled to inherit the position when the testator dies; The spouses of the children of the testator shall not be listed as a successor.

+ Inheritance relations between stepchildren and their stepparents

Article 654. Inheritance relationship between stepchildren and stepfather, stepmother,

If a stepchild and stepfather or stepmother have a relationship of caring and nurturing each other like father and son, they may inherit each other's estates and may also inherit each other's estates according to the provisions of Articles 652 and 653 of the Ministry of Finance. this law.”

If a stepchild and stepfather or stepmother have a relationship of caring and nurturing each other like father and son, they may inherit each other's estates and may also inherit each other's estates as the first line of succession to the deceased.

* Other notes:

- Determine if there is any disclaimer of the heriatge? (Article 620)

- Determine if there is any person not entitled to inherit? (Article 621)

- Determine if there is any person deprive from inheriting the estate? (Article 626)

- Is there any unborn heir (testator’s children) when the testator dies? (Article 660) 

3. OBLIGATIONS LEFT BY THE DECEASED

Obligations left by the deceased are usually from borrowing, compensating for damage, etc., fines, taxes paid by that person before death and the expenses for burial, insurance and heritage management.

Note: If the person leaving the estate has a child with another person but does not take care of this child, the court usually shall decide that the father is responsible for repaying the mother an amount of money equivalent to their caring and nuturing responsibility. Therefore, it is necessary to deduct this amount to be returned when dividing the inheritance.

4. PRESCRIPTIVE PERIODS WITH RESPECT TO INHERITANCE

The prescriptive periods with respect to inheritance is specified in Article 623 of the Civil Code 2015 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.”

Please note: Cases which has time and place of commencing inheritance before Ordinance on Inheritance took effect.

5. TIME AND PLACE OF COMMENCING INHERITANCE

The time and place of commencing inheritance are specified in Article 611 of the Civil Code 2015 as follows:

Article 611. Time and place of commencing inheritance

1. The time of commencement of an inheritance shall be the time when the deceased dies. Where a court declares that a person is dead, the time of commencement of the inheritance shall be the date provided in Clause 2 of Article 81 of this Code.”

Note: Determining the time of an individual's death is usually based on the death certificate, but in reality, more than one cases are also based on the date on the tombstone or local custom.

6. FORM OF DISTRIBUTION OF THE HERITAGE

(determine inheritance according to will or law)

- Determine whether there is a will?

- Is the will legal? (pursuant to Article 630 of the Civil Code 2015)

"Article 630. Lawful wills

1. A will must satisfy the following requirements in order to be lawful:

a) The testator was of sound mind when he or she made the will; and he or she was not deceived, threatened or coerced into making the will;

b) The contents of the will are not contrary to law or social morals and the will complies with legal formalities.

...

4. A written will which is not notarized or certified shall be deemed lawful only if it satisfies the requirements provided in Clause 1 of this Article.

5. An oral will shall be deemed lawful only if the testator orally expressed his or her last wishes before at least two witnesses who immediately thereafter recorded those wishes in writing and signed or fingerprinted the document. Such will must be notarized or certified within five working days of the date on which the testator orally expressed his or her last wishes.”

The division of inheritance according to law is only done when:

- There is no will;

- The will is not legal;

- The heirs die before or at the same time as the testator; the agency or organization entitled to inherit under the will is no longer existed at the time and place of commencing inheritance;

- The heirs under the will do not have the right to inherit or disclaim the heritage.

>> CLICK HERE TO READ THIS ARTICLE IN VIETNAMESE

Nguyen Sang
26


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