When a person dies without leaving a will, their estate will be divided between his or her relatives in accordance with the law. In the legal field, this is called “legal inheritance” and follows the general provisions of Chapter XXIII (From Article 649 to Article 655) of the Civil Code No. 91/2015/QH13 issued by the National Assembly of the Socialist Republic of Vietnam on November 24, 2015, effective from January 1, 2017 (“Civil Code”). In fact, the division of inheritance under the law is easy to arise disputes between family members when the property is the real estate because the value of the real estate is large and there are many other legal issues to consider. In this article, Lac Duy & Associates will give the most overview of the legal inheritance of the real estate as follows:
1. What is the real estate?
According to the provisions of Clause 1, Article 107 of the Civil Code: “Real estate includes: a) Land; b) Houses and construction works attached to land; c) Other properties attached to land, houses or construction works; d) Other assets as prescribed by law”. Real estate may be existing or future assets (Clause 2, Article 105 of the Civil Code) and may be registered for ownership and other rights to property in accordance with the Civil Code and the law on property registration (Clause 1, Article 106 of the Civil Code).
According to the provisions of Article 612 of the Civil Code, real estate is considered a legacy when such real estate is the private property of the deceased or belongs to the property of the deceased in the common property with others.
2. Legal inheritance of real estate
According to the provisions of Article 649 of the Civil Code, “inheritance by law is inheritance according to inheritance rows, conditions and inheritance order prescribed by law”.
Article 650 of the Civil Code regulates cases for inheritance by lawas follows:
“Article 650. Cases of inheritance by law
1. Inheritance by law shall apply in the following cases:
a) No will;
b) Illegal will(s);
c/ Heirs according to wills who die before or die at the same time as the testators; agencies and organizations entitled to inheritance under wills no longer exist at the time of opening the inheritance;
d/ Those who are designed as heirs under a will without the right to inheritance or refuse to receive the estate.
2. Legal inheritance also applies to the following heritage parts:
a) The part of the estate not decided in the will;
b) The part of the estate related to the part of the testament is not legally valid;
c) The share of the estate is related to the heir according to the testament but they have no right to inheritance, refuse to receive the estate, die before or die at the same time as the test makeer; related to agencies and organizations entitled to estates according to wills, but no longer exist at the time of opening inheritance”.
Thus, the division of estates left by the dead to the heirs under law for real estate shall be carried out when the dead have no wills or other cases as prescribed in Article 650 of the Civil Code mentioned above.
3. Order of inheritance
According to the provisions of Article 651 of the Civil Code, the division of inheritance under law shall comply with the following order:
“Article 651. Legal heirs
1. Legal heirs shall be prescribed in the following order:
a) The first heirs include: spouses, natural fathers, natural mothers, adoptive fathers, adoptive mothers, natural children and adopted children of the dead;
b) Second heirs include: grandparents, grandmothers, siblings of the dead; grandchildren of the dead;
c) The third heirs include: paternal and maternal grandparents of the dead; biological uncles, aunts of the dead; grandchildren of the dead; great-grandchildren of the dead.
2. Heirs of the same line are entitled to equal share of the estate.
3. Those in the following inheritance rows are entitled to inheritance only, if no one is left in the previous inheritance row due to death, no right to enjoy the estate, disqualification from inheritance or refusal to receive the estate”.
4. Some special cases:
- Inheritance of status: According to Article 652 of the Civil Code: “Where the child of the person leaving the estate dies before or at the same time as the person leaving the estate, he/she is entitled to the portion of the estate enjoyed by his/her father or mother if he/she is alive; if he/she also dies before or at the same time as the person who left the estate, he or she is entitled to the part of the estate enjoyed by his/her great-grandchildren’s parents if he/she is alive.”
- Inheritance relationship between adoptive children and adoptive fathers, adoptive mothers and natural fathers and natural mothers: According to Article 653 of the Civil Code: “Adoptive children and adoptive fathers, adoptive mothers inherit each other’s estates and also inherit estates as prescribed in Article 651 and Article 652 of this Code”.
- Inheritance relationship between stepchildren and stepfathers and stepmothers: Accordingto Article 654 of the Civil Code: “Stepchildren and stepfathers and stepmothers, if having relationships to care for and nurture each other as fathers and/or mothers, shall inherit each other’s estates and also inherit their inheritances according to the provisions of Article 652 and Article 653 of this Code”.
- Inheritance in cases where husband and wife have divided common property; spouses who are applying for divorce or have married other people: In Article 655 of the Civil Code, it is prescribed in this regard as follows: “(1) Where husband and wife have divided common property while the marriage still exists and then one dies, the living shall still inherit the estate. (2) In case a husband and wife apply for a divorce which has not been or has been divorced by the court by a legally ineffective judgment or decision, if a person dies, the living person will still inherit the estate. (3) The person who is the spouse of a person at the time of his/her death, even if he/she is later married to another person, inherits the estate.”
The above are the most general views on the inheritance of real estate under the law. In case there is any question, readers can contact Lac Duy & Associates for timely support at:
- Phone: + 84 (28) 3622 1603
- Email: info@lacduy-associates.com or lacduy@lacduy-associates.com
Best regards.