The right to inherit and the right to bequeath property are fundamental citizen’s rights protected by law. However, due to customs, traditions, and family sentiments, many individuals overlook these rights.
Moreover, in some cases, testators (those making a will) may draft a will without fully understanding the legal provisions on inheritance, leading to the will being non-compliant with the law. This can force heirs to resolve disputes through legal means, ultimately damaging family relationships.
1. Legal Provisions on Inheritance
1.1. Right to Inherit
An individual has the right to make a will to dispose of their property; to leave their property to heirs under law; and to receive an inheritance according to a will or by law.
An heir who is not an individual has the right to receive an inheritance according to a will.
1.2. Time and Place of Opening of Inheritance
The time of opening of inheritance is the time of the death of the property owner. If a court declares a person to be dead, the time of opening of inheritance is the date determined in Clause 2, Article 71 of the Civil Code of Vietnam 2015.
The place of opening of inheritance is the last place of residence of the decedent (person leaving the inheritance); if the last place of residence cannot be determined, the place of opening of inheritance is where all or the majority of the estate is located.
1.3. Heirs
An heir who is an individual must be alive at the time of the opening of inheritance or born and alive after the time of the opening of inheritance but conceived before the decedent’s death.
If an heir by will is not an individual, they must exist at the time of the opening of inheritance.
1.4. Estate
The estate includes the separate property of the deceased and the deceased’s share in joint property with others.
2. Inheritance by Will
2.1. Form of Will
A will must be made in writing; if a will cannot be made in writing, an oral will may be made.
2.1.1. Written Will
Written wills include:
– Written will without witnesses:
+ The testator must personally write and sign the will.
+ The making of a written will without witnesses must comply with the provisions of Article 631 of the Civil Code of Vietnam 2015.
– Written will with witnesses:
+ Notarized written will: The testator may request notarization of the will.
+ Certified written will: The testator may request certification of the will.
2.1.2. Oral Will
If a person’s life is threatened by death and they cannot make a written will, an oral will may be made.
If, after three months from the time the oral will was made, the testator is still alive, clear-headed, and lucid, the oral will shall be automatically revoked.
2.2. Valid Will
A valid will must meet the following conditions:
- The testator must be clear-headed and lucid while making the will; not be deceived, threatened, or coerced.
- The content of the will must not violate legal prohibitions or social ethics; the form of the will must not violate legal provisions.
- A will made by a person aged between fifteen and under eighteen must be in writing and have the consent of their parents or guardian.
- A will made by a physically impaired person or an illiterate person must be made in writing by a witness and be notarized or certified.
- A written will without notarization or certification is only considered valid if it meets the conditions specified above.
- An oral will is considered valid if the testator expresses their last wishes in the presence of at least two witnesses, and immediately after the testator expresses their last wishes, the witnesses record it, and sign or fingerprint it together. Within 05 working days from the date the testator expresses their last wishes, the will must be certified by a notary public or competent authority regarding the witnesses’ signatures or fingerprints.
2.3. Heirs Not Dependent on the Content of the Will
The following individuals shall still receive a portion of the estate equal to two-thirds of the share of an heir by law if the estate were divided by law, in cases where they are not designated as beneficiaries in the will or are designated to receive less than two-thirds of that share:
- Minor children, father, mother, spouse;
- Adult children who are unable to work.
The above provision does not apply to individuals who refuse to accept the inheritance or are ineligible to receive the inheritance as stipulated in Clause 1, Article 621 of the Civil Code of Vietnam 2015.
3. Inheritance by Law
3.1. Cases of Inheritance by Law
Inheritance by law applies in the following cases:
- There is no will.
- The will is invalid.
- The heirs designated in the will die before or at the same time as the testator; the agencies or organizations designated to receive the inheritance in the will no longer exist at the time of the opening of inheritance.
- The individuals designated as heirs in the will are ineligible to receive the inheritance or refuse to accept it.
Inheritance by law also applies to the following portions of the estate:
- The portion of the estate not disposed of in the will.
- The portion of the estate related to parts of the will that are not legally effective.
- The portion of the estate related to heirs by will who are ineligible to receive the inheritance, refuse to accept it, die before or at the same time as the testator; or related to agencies or organizations designated to receive the inheritance in the will, but no longer exist at the time of the opening of inheritance.
3.2. Heirs by Law
Heirs by law are stipulated in the following order:
- First line of heirs: Spouse, biological father, biological mother, adoptive father, adoptive mother, biological child, adopted child of the deceased.
- Second line of heirs: Paternal grandfather, paternal grandmother, maternal grandfather, maternal grandmother, biological brother, biological sister, biological sibling of the deceased; biological grandchild of the deceased where the deceased was the paternal grandfather, paternal grandmother, maternal grandfather, or maternal grandmother.
- Third line of heirs: Paternal great-grandfather, maternal great-grandmother of the deceased; paternal uncle, maternal uncle, paternal aunt, maternal aunt of the deceased; biological grandchild of the deceased where the deceased was the paternal uncle, maternal uncle, paternal aunt, or maternal aunt; biological great-grandchild of the deceased where the deceased was the paternal great-grandfather or maternal great-grandmother.
Heirs of the same line shall receive equal shares of the estate. Heirs in a subsequent line shall only inherit if there are no remaining heirs in the preceding line due to death, ineligibility to receive the inheritance, disinheritance, or refusal to accept the inheritance.
3.3. Inheritance by Representation
If a child of the decedent dies before or at the same time as the decedent, their child (the grandchild of the decedent) shall receive the share of the estate that their parent (the child of the decedent) would have received if alive; if the grandchild also dies before or at the same time as the decedent, their child (the great-grandchild of the decedent) shall receive the share of the estate that their parent (the grandchild of the decedent) would have received if alive.
