1. Conditions of the subject inheriting real estate property
According to the provisions of Clause 1, Article 188 of the 2013 Land Law , land users exercise the right to inherit land use rights when the following conditions are met:
– Have a Certificate, except for the case specified in Clause 3, Article 186 and the case of inheritance specified in Clause 1, Article 168 of this Law;
– Land is not in dispute;
– Land use rights are not distrained to ensure judgment enforcement;
– During the land use term.
If based only on the above regulations, many people mistakenly think that a Certificate is required to inherit real estate. However, it is necessary to properly understand in which cases the above regulations apply to ensure the rights of heirs. To clarify this, LawFirm.Vn provides some comments and legal bases as follows:
Point c, Clause 3, Article 167 of the 2013 Land Law stipulates: Documents on inheritance of land use rights, land use rights and assets attached to land are notarized or authenticated according to the provisions of civil law. .
Accordingly, the condition of having a Certificate applies to cases where the land user leaves inheritance rights according to a will (when making a will, the land user expresses his/her will to leave a will). property, cases of inheritance according to law do not express the will of the land user).
On the other hand, in case of making a written will with notarization or authentication, the land user must have a Certificate to be eligible for notarization or authentication; In case of making a will with witnesses or without witnesses, the person using the land can still express his will to leave the land use rights even without a Certificate.
In short, the Certificate condition applies to cases of notarized wills and notarized wills. When making a will with or without witnesses and inheriting according to law, you only need to prove that the real estate is legal and you still have the right to divide the inheritance.
Pursuant to Resolution 02/2004/NQ-HDTP issued by the Council of Judges of the Supreme People’s Court, land use rights are determined as heritage as follows:
– For land left by a deceased person (regardless of whether or not there are assets attached to the land) and that person has a Certificate, the right to use that land is an inheritance.
– In the case of land left by a deceased person and that person has one of the types of land use rights documents, that land use right is also an inheritance, regardless of the time of opening the inheritance.
– In cases where the deceased leaves behind land use rights but the land does not have a Certificate or does not have one of the documents on land use rights but has a legacy of housing and other architectural objects attached to that land. If there is a request to divide the inheritance, the following cases need to be distinguished:
+ In case the litigant has a document from the People’s Committee of the competent level confirming that the land use is legal, but the Certificate has not yet been issued (eligible for issuance of the Certificate), the Court will resolve the request for division. Heritage is property attached to land and the right to use that land.
+ In cases where the litigant does not have a document from the competent People’s Committee confirming that the land use is legal, but there is a document from the competent People’s Committee clearly stating that the land use does not violate regulations. planning and can be considered for land use rights, the Court will resolve the request to divide the inheritance as assets attached to the land.
At the same time, it is necessary to determine the boundaries and temporarily assign land use rights to the concerned person so that the competent People’s Committee can carry out procedures for land use right allocation and issue a Certificate to the concerned person in accordance with the provisions of land law. band.
+ In case the People’s Committee at the competent level has a document clearly stating that the use of land is not legal and that heritage assets attached to land are not allowed to exist on that land, the Court will only resolve the dispute. about heritage is the property on that land.
– In case the deceased leaves land use rights but the land does not have a Certificate or does not have one of the documents on land use rights and also does not have a legacy of assets attached to the land, if there is a dispute It falls under the jurisdiction of the People’s Committee according to the provisions of land law.
According to the guidance of the Council of Judges, when land use rights are determined to be heritage, the inheritance will be divided.
2. Determine the inheritance as real estate
Article 612 of the 2015 Civil Code regulates inheritance, accordingly: Inheritance includes the deceased’s personal property and the deceased’s property in common property with others.
Accordingly, the deceased’s common property in common property with others mainly includes the following cases:
– Real estate is the common property of husband and wife.
– Real estate is the common property of the household using the land.
– Real estate of many people contribute money to receive transfer without being members of the household or husband and wife.
3. Division of real estate inheritance when there is a will
3.1. Form of will
Wills include oral wills and written wills. Pursuant to Article 628 of the 2015 Civil Code , a written will includes:
– Written will without witnesses.
– Written will with witnesses.
– Notarized written will.
– Will in writing and authenticated.
3.2. Conditions for a will to be legal
According to the provisions of Clause 1, Article 630 of the 2015 Civil Code, a legal will must meet the following conditions:
– The testator is lucid and wise while making the will; not be deceived, threatened or coerced;
– The content of the will does not violate legal prohibitions or is not contrary to social ethics; The form of the will does not violate the provisions of law.
Note :
– A written will that is not notarized or authenticated is only considered legal if the above conditions are met.
– An oral will is considered legal if the oral testator expresses his/her final will in front of at least two witnesses and immediately after the oral testator expresses his/her final will, the witness records it. again, sign or fingerprint. Within 05 working days from the date the oral testator expressed his/her final will, the will must be certified by a notary public or competent authentication agency with the signature or fingerprint of the witness.
3.3. How to divide inheritance according to will
According to Clause 2, Article 626 of the 2015 Civil Code, the testator has the right to allocate the inheritance to each heir. In other words, how much of the real estate the heir is entitled to depends on the content of the will if the will is legal.
Note: Even though the will is legal, the content of the will does not express the right to inheritance or if it leaves a legacy but less than 2/3 of the inheritance, if divided according to law, then each person’s share will be inherited. need to redefine.
3.4. Heirs do not depend on the content of the will
According to the provisions of Clause 1, Article 644 of the 2015 Civil Code, the following people are still entitled to an inheritance equal to two-thirds of the rate of a legal heir if the estate is divided according to law, in this case: they are not allowed to inherit by the testator or are only allowed to enjoy less than two-thirds of that portion of the inheritance:
– Minor children, father, mother, wife, husband;
– Adult children are unable to work.”
Accordingly, the testator’s minor children, father, mother, wife, husband and adult children who are unable to work will enjoy an inheritance equal to 2/3 of the rate of an heir according to the law. by law if the testator is not allowed to enjoy the inheritance or is allowed to enjoy the inheritance less than 2/3 of that portion.
The above regulation that heirs do not depend on the content of the will does not apply to people who refuse to receive the inheritance or who do not have the right to enjoy the inheritance.
For example: Mr. A and Mrs. B have common assets of real estate worth 02 billion VND. Before Mr. A died, he made a will with the content of leaving the entire inheritance to one son (Mr. A’s father and mother were dead).
Although Mr. A was not given the inheritance according to the will, Mrs. B still enjoys it because she is an heir regardless of the content of the will according to the provisions of Article 644 of the 2015 Civil Code. Mrs. B’s inheritance enjoy the following:
– Mr. A’s inheritance is 01 billion (because real estate is common property, so it is divided in half).
– If inheritance is divided according to law, Mr. A’s heirs will be in the first line of inheritance, Mrs. B and her son, each inheritance is 500 million VND. Pursuant to Clause 1, Article 644 of the 2015 Civil Code, Mrs. B is entitled to an inheritance equal to 2/3 of the inheritance rate. Therefore, although Mr. A does not let Mrs. B enjoy the inheritance according to the will, Mrs. B still enjoys the real estate inheritance with a value of 333.33 million VND.
4. Divide inheritance as real estate according to law
When a person dies but does not have a will or the will is not legal or there is still real estate that has not been divided according to the will, it will be divided according to law.
4.1. In case the estate is divided according to law
Pursuant to Clause 1, Article 650 of the 2015 Civil Code , real estate is divided according to law in the following cases:
– There is no will.
– The will is not legal.
– Heirs according to the will die before or at the same time as the testator; The agency or organization entitled to inherit under the will no longer exists at the time of opening the inheritance.
– People who are designated as heirs according to the will but do not have the right to inherit or refuse to receive the inheritance.
In addition, legal inheritance also applies to the following real estate assets:
– The inheritance is not determined in the will.
– The part of the inheritance related to the part of the will has no legal effect.
– The inheritance is related to the heirs according to the will but they do not have the right to inherit, refuse to receive the inheritance, die before or at the same time as the testator; related to agencies and organizations that are entitled to the inheritance according to the will, but no longer exist at the time of opening the inheritance.
4.2. Person entitled to inherit according to law
Pursuant to Article 649 and Article 651 of the 2015 Civil Code, the person who inherits according to the law is the person who is the heir and the heir.
– Inheritance status: A person who has a relationship of marriage, blood, or adoption with the person leaving the legacy.
Note: Foster relationships are adopted child, adoptive father, adoptive mother.
– Inheritance goods:
Clause 1, Article 651 of the 2015 Civil Code stipulates inheritance in the following order:
– The first line of inheritance includes: wife, husband, biological father, biological mother, adoptive father, adoptive mother, biological children, and adopted children of the deceased;
– The second line of inheritance includes: grandfather, grandmother, maternal grandfather, maternal grandmother, biological brother, biological sister, younger sibling of the deceased; grandchildren of the deceased and the deceased is a grandfather, grandmother, maternal grandfather, maternal grandmother;
– The third line of inheritance includes: paternal and maternal great-grandparents of the deceased; paternal uncle, paternal uncle, paternal uncle, paternal aunt, paternal aunt of the deceased; nephew of the deceased and the deceased is a paternal uncle, maternal uncle, maternal uncle, maternal aunt, maternal aunt; The deceased’s great-grandchildren are his paternal and maternal great-grandparents.”
Note: People in the next line of inheritance are only entitled to inherit, if there is no one left in the previous line of inheritance due to death, no right to inherit, disqualified from inheriting or refusing to receive inheritance (according to Clause 3, Article 651 of the 2015 Civil Code).
4.3. How to divide inheritance according to law
Clause 2, Article 651 of the 2015 Civil Code stipulates: Heirs of the same row are entitled to equal shares of the inheritance.
Thus, if real estate is divided into inheritance according to law, the heirs will receive an equal share of the inheritance.
5. Procedures for declaring heritage
Clause 1, Article 58 of the Notary Law 2014 stipulates the case of notarization of inheritance declaration documents as follows: The sole person entitled to inherit the estate according to the law or those who are jointly entitled to the inheritance according to the law but agree not to divide The division of that estate has the right to request a notarization of the inheritance declaration document.
Thus, the declaration of inheritance as real estate only occurs in 02 cases:
– The only person entitled to inherit the estate according to the law.
– People who are entitled to the same inheritance according to the law but agree not to divide that inheritance (does not apply to heirs according to the will).
6. Procedures for registering the name of the Red Book when receiving an inheritance
Within 30 days from the date of completion of division of land use rights as inheritance, the land user must register changes (register name transfer) otherwise they will be subject to administrative violations.
Step 1: Prepare the change registration documents (signing the name in the cadastral book)
Pursuant to Clause 2, Article 7 of Circular 33/2017/TT-BTNMT, documents submitted when carrying out procedures for inheriting land use rights include:
– Application for registration of changes in land and assets attached to land according to Form No. 09/DK.
– Documents on real estate inheritance according to regulations (will, agreement on inheritance division, document refusing to receive inheritance, judgment if there is a dispute, etc.).
In case the heir of land use rights and ownership of assets attached to land is the only person, there must be an application to register the inheritance of land use rights and ownership of assets attached to land of that person. inherit.
– Original issued Certificate.
Step 2: Submit application
Method 1: Households and individuals submit it to the People’s Committee of the commune, ward or town where the real estate is located
Method 2: Do not submit to the People’s Committee of the commune, ward or town where the land is located
– Localities that have established a one-stop department must submit applications and receive results at the one-stop department.
– Localities that have not yet established a one-stop shop must have households and individuals pay directly at the land registration office branch of the district, district, town, provincial city or centrally run city. where the land is located or at the land use rights registration office branch for localities that have not yet established a land registration office branch.
Step 3. Resolve the request
Processing time: No more than 10 days from the date of receipt of valid documents; no more than 20 days for mountainous communes, islands, remote areas, areas with difficult socio-economic conditions, areas with extremely difficult socio-economic conditions.
The above time does not include days off and holidays as prescribed by law; Does not include the time to receive documents at the commune or the time to fulfill the land user’s financial obligations; does not include the time for consideration and handling in cases of land use that violates the law or the time for soliciting appraisals.
Note: For land that does not have a Red Book or Pink Book, the inheritor will be issued a book if eligible .
7. Costs when transferring Red Book name
See more: Amounts that may have to be paid when inheriting real estate
8. Statute of inheritance
Clause 1, Article 623 of the 2015 Civil Code stipulates the statute of limitations for inheritance, accordingly, the statute of limitations for an heir to request division of the inheritance is 30 years for real estate, 10 years for movable property, from time of opening inheritance. At the end of this period, the estate belongs to the heir who is managing that estate. In case there is no heir managing the estate, the estate will be resolved as follows:
– The property belongs to the current possessor according to the provisions of Article 236 of this Code;
– Heritage belongs to the State, if there is no possessor specified in Point a of this Clause.”
Thus, if more than 30 years have passed since the time the deceased left the estate without a request to divide the estate, the real estate belongs to the heir who is managing that estate.
