Individuals have the right to make a will to dispose of their assets; Leave your property to your heirs according to the law. Below are some things to know when writing a will to ensure it is legal and legally effective.
1. Conditions of the testator
A will is an expression of an individual’s will to transfer his or her assets to others after death. Therefore, this person has the following rights:
– Designation of heirs; disqualify the heir from enjoying the inheritance;
– Determining the inheritance for each heir;
– Set aside a portion of assets in the heritage block for bequests and worship;
– Assign obligations to heirs;
– Appoint the person to keep, manage and divide the estate
However, not everyone has the right to leave an inheritance to others. Because Article 625 of the 2015 Civil Code stipulates, people under 18 years old can only make a will when they are 15 years old or older.
Article 625. Testator
1. Adults who meet the conditions prescribed in Point a, Clause 1, Article 630 of this Code have the right to make a will to dispose of their assets.
People from full fifteen years old to under eighteen years old may make a will if their father, mother or guardian agrees to make a will.
2. People without names can still inherit
Because a will is the will of the person leaving behind the property, they have the rights to appoint heirs; disqualify the heir from enjoying the inheritance.
However, Article 644 of the 2015 Civil Code stipulates that the following 06 groups of people, even though not named in the will, still have their rights to inherit inheritance protected by law. Detail:
– Minor children of the person leaving the estate;
– The father of the person leaving the legacy;
– Mother of the person leaving the legacy;
– Wife of the person leaving the estate;
– Husband of the person leaving the estate;
– Adult children without the ability to work of the person leaving the legacy
Accordingly, even though they are not allowed to leave any assets, these people still enjoy 2/3 of an inheritance according to the law.
However, these cases will not apply to people who refuse to receive inheritance or who are not entitled to inheritance such as:
– People convicted of intentional acts of violating the life, health or seriously violating the honor and dignity or seriously mistreating or torturing the person leaving behind the estate
– The person seriously violates the obligation to care for the person leaving the estate;
– A person convicted of intentionally infringing on the life of another heir in order to enjoy part or all of the inheritance that that heir is entitled to enjoy;
– A person who deceives, coerces or prevents the person leaving the estate from making a will; forging, modifying, destroying or concealing a will in order to enjoy part or all of the estate against the will of the person leaving the estate.
3. How to make a legal will
Article 627 of the 2015 Civil Code clearly states that there are two forms of expression:
– Must be in writing: No witnesses or with witnesses, notarized or authenticated.
– Only when it is not possible to make a written will, an oral will is used
However, oral wills are only valid for 3 months. If after 3 months from the time of establishment, that person is still alive, alert, and intelligent, it will be automatically annulled.
In addition, the following formal conditions must also be met:
– Content must include: Date, month, year of creation; Full name and place of residence of the founder and recipient of the inheritance; The legacy left behind and where the legacy is located…
– Do not abbreviate or write with symbols
– Must be page numbered and have the signature or fingerprint of the testator
– If there is an erasure, the testator must sign next to the erasure or correction
According to the provisions of Article 630 of the 2015 Civil Code, a will is considered legal when:
– The founder is lucid and wise; not be deceived, threatened or coerced during the preparation
– The content does not violate legal prohibitions or is not contrary to social ethics;
– The form does not violate the law.
In addition, the following types of wills must be made in writing and notarized or authenticated to be considered legal:
– Of people with physical limitations
– Of illiterate people
– Prepared in a foreign language
– Oral wills must be notarized and authenticated within 5 days immediately after the person leaving the will expresses his or her final will.
4. Effective date of the will
The will is effective at the time of opening the inheritance according to the provisions of Article 643 of the 2015 Civil Code. Accordingly, the time of opening the inheritance is determined to be the time the person leaving the inheritance dies.
On the contrary, it will not be effective in the following cases:
– The inheritance no longer exists at the time of opening the inheritance
– The heir dies before or at the same time as the founder;
– The agency or organization designated as the heir no longer exists at the time of opening the inheritance.
Worth noting: If only one part is invalid, it does not affect the validity of the other parts. And one person can make many copies. Only a last made will has legal force.
5. Procedures for notarizing wills
When notarizing or authenticating, it is necessary to follow the regulations, following order:
Notarization documents include the following types of papers and documents
– Notarization request form at the office or Notarization request form outside the office (if any) (according to the form)
– Draft documents
– Copy of identification documents:
+ Identity card, citizen identification card, passport of the maker and recipient;
+ Household registration book
+ Other types of documents: Confirmation of marital status, marriage registration,…
– Copies of documents for types of assets whose ownership and use rights are required by law to be registered, such as: Land use rights certificate, car registration certificate…
– Copies of other documents related to property: Drawings, land plot diagrams, documents proving the origin of private property…
Competent authority to notarize and authenticate
According to the provisions of Article 636 of the 2015 Civil Code, agencies with authority to notarize and authenticate include:
– Notary practice organizations: Notary offices, notary offices
– Commune People’s Committee
Worth noting: Notaries and authorized persons of the Commune People’s Committee are not allowed to notarize or authenticate if they fall into one of the following cases:
– Be the heir of the testator;
– People whose father, mother, spouse, or children are heirs;
– Persons with property rights and obligations related to the contents of the will
Sequence and procedures for notarization and authentication steps
Step 1: The person requesting notarization submits the notarization request document at notary practice organizations or at the commune-level People’s Committee.
In particular, the person requesting notarization is not required to go to the right notary practice organization where the real estate is located according to Article 42 of the Notary Law 2014.
Step 2: The notary directly receives and checks the documents of the person requesting notarization. At this time, the testator declares the contents before a notary public or a person with authentication authority of the commune-level People’s Committee and has it recorded.
Step 3: After the person requesting notarization or authentication has been explained by a notary public or a person with authentication authority of the Commune People’s Committee about their rights and obligations, and has confirmed that the will is recorded according to their will, they will sign. or point to text.
Step 4: A notary public or person with authentication authority of the Commune People’s Committee signs the witness’s confirmation on the document.
In case the testator cannot read or listen, cannot sign or fingerprint, he must ask a witness and this person will sign in front of a notary public or a person with authentication authority of the commune-level People’s Committee.
