1. What is the concept of will and testamentary inheritance?
A will is an expression of an individual ‘s will to transfer his or her assets to another person upon death . According to this regulation , a will must contain the following elements :
– It is the expression of the individual ‘s will and not that of any other entity ;
– The purpose of making a will is to transfer your property to another person ;
– Only takes effect after the person dies .
A will is a unilateral legal act of the testator , therefore the will must comply with the conditions for validity of civil transactions in general and the conditions for validity of wills in particular . . Therefore , a person who wants to dispose of his or her property by will must comply with the provisions of law on testamentary inheritance.
Inheritance by will is the transfer of a deceased person’s assets to another living person according to that person’s decision before death expressed in the will . The basic content of inheritance according to a will is to designate heirs ( individuals , organizations ) and assign assets and property rights to them , and assign them property obligations …
2. The person who makes the will
The testator appoints one or more people in the will and allows them to enjoy part or all of his or her property .
If there are many people in the will, how much each person will receive depends on the will of the person who owns the property . People with property express their will , but whether that will is realized or not depends on the form of expression of the will .
The testator is an individual with full capacity to act and has the following rights:
2.1. Appoint heirs, disqualify heirs from inheritance
The testator has the right to leave an inheritance to any individual or organization . The recipient of the inheritance can be an individual within or outside the inheritance according to the provisions of law or can also be the State , economic organization , or social organization . ..
The testator ‘s right to dispose is also expressed through the fact that he or she can disqualify heirs from their inheritance according to the law ( such as: father, mother , wife , husband , children , brothers, younger siblings … ) without necessarily stating the reason , the testator can designate one or more heirs who by law are not entitled to inherit his or her inheritance.
2.2. Allocate the inheritance to each heir
Allocate the inheritance to heirs in case there are many heirs . The testator has the right to divide the estate between each person , not necessarily equally and without having to state a reason . If the estate is not determined in the will, the estate is divided equally among the people designated in the will.
2.3. Set aside a portion of assets in the heritage block for bequests and worship
See sections 7 and 8 of this article.
2.4. Assign obligations to heirs within the scope of the estate
The testator has the right to assign specific obligations to the heir ( such as giving the heir a house but must leave it to a disabled close friend who previously lived on the property ) . The person leaving the legacy can live in part of that house until he or she dies or assigns the heir to pay a debt to the State that the person leaving the legacy has not yet paid … ) .
The testator can assign obligations to a person without allowing them to inherit the inheritance. In this case , the person assigned the obligation is not required to perform that obligation. If an obligation is assigned and an inheritance is granted, the person to whom the obligation is assigned must perform the obligation within the scope of that inheritance.
2.5. Appoint the keeper of the will, the administrator of the estate, and the person to divide the estate
The Civil Code stipulates that the testator has the right to appoint a will keeper , an estate manager , and an estate distributor . The appointment of the keeper of the will, the administrator of the estate, and the person dividing the estate is entirely according to the free will of the testator . The testator can appoint a person to both keep the will and at the same time manage the estate and distribute the estate . Those who make wills can still appoint many people, each to do a separate job ( such as : appointing Mr. A to keep the will , Mr. B to manage the assets , Mrs. C to divide the assets … ) .
The testator has the right to designate an heir ; whether or not the designated person can do so depends on their subjective will . This is not a legal obligation but it represents a spirit of volunteerism and solidarity to help others .
3. Heirs according to the will
Recipients of inheritance (persons designated in the will ) are those who have the right to receive the inheritance left by the deceased according to the disposition in the will.
Heirs according to the will can be people in the line of inheritance , outside the line of heirs, or agencies and organizations , including the State. However , the heir according to the will also needs to have the conditions as prescribed in Article 613 of the 2015 Civil Code , specifically : If the person designated as the heir is an individual, that person must still have alive at the time of opening the inheritance , because only those who are still alive have the civil legal capacity to enjoy the rights . However , people who were born and alive after the time of opening the inheritance but were conceived before the death of the person leaving the legacy are still heirs according to the will of the person leaving the legacy .
In case the heir under the will is a legal entity, it must still exist at the time of opening the inheritance, because if the legal entity stops operating before the time of opening the inheritance, the legal entity’s subject capacity will also end. , so he is no longer eligible to enjoy the inheritance. The above cases require attention to the following issues :
– For the heir is the fetus . If the testator leaves an estate to a person who is conceived as a child of a specifically identified father or mother , then when that person is born and alive, it must be the child of the identified father or mother. in the will.
If the person leaving the estate does not clearly state in the will the name of the father of the person who became pregnant, it is only necessary to identify the mother of the person who became pregnant when the person leaving the legacy died . Who that person’s father is does not affect the determination of that person as the heir of the person leaving the estate ( as in the case of an unmarried person with children ).
– In case the heir according to the will is not an individual , it must exist at the time of opening the inheritance .
Legal entities are the subjects of civil legal relations , so legal entities need to have subjective capacity , that is , rights and obligations prescribed by law . If the legal entity still exists at the time of opening the inheritance and the time of division of the estate, the legal entity has the right to inherit the estate according to the will . If the legal entity still exists at the time of opening the inheritance but no longer exists at the time of division of the estate (in the form of inheritance ) , it is necessary to apply civil proceedings according to regulations . to protect the rights of legal entities .
4. Heirs do not depend on the content of the will
The law stipulates that the person leaving the estate has the right to disqualify the estate or not allow the heirs under the law to enjoy the estate. However , in order to protect the interests of some people as heirs under the law, in accordance with the fine customs , traditions and traditions of our people , the law has limited the rights Making a will is prescribed in Article 644 of the 2015 Civil Code . The law stipulates that heirs regardless of the content of the will include: Minor children , father , mother , wife , husband, adult children but unable to work, these people must enjoy 2/3 of a legal inheritance if the parents do not give it or give it but less than 2/3 of a legal inheritance .
The method of calculating the two-thirds share of an heir at law for the heir regardless of the content of the will is determined as follows:
– If there is no will , then a share divided by law to the heir in the first line of inheritance is multiplied by two -thirds of that share .
– The following people are not included in the calculation of the two -thirds rate of an inheritance according to the law : People who do not have the right to enjoy as prescribed in Clause 1, Article 621 of the 2015 Civil Code ; The person who refuses the right to enjoy benefits according to the provisions of Article 6 2 0 of the Civil Code ; The legal heir in the line of inheritance is presumed to have died before or at the same time as the person leaving the estate without any case of succession .
Example 1 : A is B’s husband and has two children together, C and D (adults). A and C died at the same time. Á left a will to disinherit B and give D the entire inheritance. B inherits regardless of the contents of the will. A’s legacy is 90 million VND. So B’s benefit is 90 million VND dividedby two shares multiplied by two-thirds of one share and gets 30 million VND; The expected benefit is 60 million VND .
Example 2 : Also according to the above event , but C has child E , then B will receive 90 million divided by 3 times multiplied by (x) 2 / 3 = 20 million ; D gets 70 million according to the will .
5. Conditions for validity of the will
A will is a unilateral legal act expressing the will of the testator , therefore in order for a will to have legal effect , it must comply with the valid conditions of the transaction . Civil deeds in general must also comply with the conditions to be considered a legal will . Conditions for the validity of a will include:
5.1. The person making the will must have personal capacity
The person making the will is a person from 18 years old with full civil act capacity . People from 15 years old to under 18 years old can make a will if their father , mother or guardian agrees . . The testator was lucid and lucid while making the will .
Our country ‘s law recognizes people 18 years of age or older as adults . Therefore , regardless of male , female , religion , or class . . . Anyone over 18 years old has the right to make a will to dispose of their property to their heirs. .
However, people from 15 years old to under 18 years old (people with partial legal capacity) can make a will but with the condition that ” it must be made in writing and must be approved by father , mother or other person.” The guardian agrees to make a will ” ( Clause 2 , Article 6 , 30 of the 2015 Civil Code ) . The consent here is their consent to make a will. As for the content of the will, they have full authority to decide.
5.2. The person makes the will voluntarily
The person making the will must voluntarily make the will ; not be deceived , threatened or coerced . The will of the testator is the unity of their will and expression of their will . The above unity is the unity between the subjective wishes – the inner wishes of the testator and the external form of expression of that wish . Therefore, breaking the unity between internal wishes and external expression takes away the voluntariness of the testator . This unity can be broken in cases where the testator is forced , threatened or the will is made on the basis of deception .
Coercion can be physical coercion ( beating , detention… ) or mental coercion ( for example , forcing you to do something that could damage the honor and reputation of the person making the will … ). The testator can be deceived by tricks such as : Making fake documents to make the property owner believe that a person is dead or missing , so they do not make a will to leave the inheritance to that person . That leaves a legacy to the person who made the fake document . v . .
5.3. The content of the will does not violate the law or social ethics
The content of a will is the expression of the will of the testator regarding the disposition of his or her property to the heirs . The testator appoints the heir , assigns obligations to the heir , determines the inheritance , and sets out the conditions for distributing the inheritance . . . The will of the testator must be in accordance with the State ‘s regulations and not contrary to social morality , complying with the basic principles of civil law stipulated in Article 3 of the Civil Code .
5.4. The form of the will does not violate the law
The form of the will is the method of expressing the will of the testator (content of the will ) ; is the legal basis that gives rise to inheritance relationships according to the will , and is evidence to protect the rights of the person designated in the will . Therefore , the will must be made in a certain form . The law stipulates that there are two types : 1 ) Written form : A type of will expressed in writing ( handwritten , typed , printed ) with or without certification g recognition from a competent state agency ; 2 ) Oral form : The entire will of the testator is expressed verbally .
5.4.1. Oral will
An oral will (also known as a will ) is a verbal expression of the will of the person leaving an inheritance while still alive in disposing of his or her estate . to others after I die .
Oral wills are only recognized as legal when the testator is in a situation where his life is seriously threatened and cannot make a written will ( suffering from an illness that is about to die , having an accident that puts him at risk of death , etc.) . ) . The person making the oral will expresses his/her final will in front of at least two witnesses and immediately after that the witnesses write it down , sign or fingerprint it . Within 5 working days from the date the oral testator expressed his / her last will , the will must be promulgated.
A notary public or authority with authentication authority confirms the witness ‘s signature or fingerprint (clause 5 , Article 630 of the 2015 Civil Code ). After 3 months from the date of making the oral will, if the testator is still alive , alert and clear – sighted , the oral will will be canceled ( Clause 2, Article 6, 2 , 9 of the 2015 Civil Code ).
5.4.2. Written will
Written wills include the following types:
+ Written will without witnesses ( Clause 1 , Article 6, 2 , 8 of the Civil Code ) .
+ Written will with witnesses ( clause 2 , Article 628 of the Civil Code ) .
+ Notarized written will ( Clause 3 , Article 628 of the Civil Code).
+ Certified written will ( clause 4, Article 62 , 8 of the Civil Code ).
In addition , according to Article 638 of the 2015 Civil Code, a written will has the same value as a notarized or authenticated will , including:
+ Will of active duty military personnel certified by the head of the unit at company level or higher , if the military personnel cannot request notarization or authentication ;
+ Will of a person traveling on a ship or plane with confirmation from the commander of that vehicle;
+ Will of a person being treated at a hospital, other medical treatment or nursing facility, certified by the person in charge of that hospital or facility;
+ Will of the person who is doing survey, exploration, and research work in mountainous areas and islands , certified by the person in charge of the unit ;
+ Will of a Vietnamese citizen living abroad certified by a consulate or diplomatic representative of Vietnam in that country ;
+ Will of a person who is in detention, detention , serving a prison sentence, or a person who is serving administrative measures at an educational facility or medical treatment facility , certified by the person in charge of that facility.
Reality shows that citizens do not always have the conditions to make a written will , in which case the law allows making an oral will . Similarly , due to lack of objective and subjective conditions , citizens cannot make a written will certified by a competent state agency . If they make a will in writing without witnesses , it is still considered legal , if all the conditions in sections a, b , c, d of this section are met . In reality , there are many cases where the testator does not understand the law or has many different reasons that they cannot go to the notary office or the People ‘s Committee of the commune , ward or town to complete the notarization procedures . receive. Therefore , the law still recognizes an uncertified or uncertified will as a legal will if the testator is completely voluntary , lucid , lucid , and not deceived , threatened or coerced . coercion , the content does not violate the law or social ethics .
6. Legal effect of the will
The legal validity of a will is the legal value of a will that is actually carried out in accordance with the contents of the will and in accordance with the provisions of law .
The will takes legal effect from the time the inheritance is opened . A will is not legally effective in whole or in part in the following cases:
– The heir according to the will dies before or at the same time as the testator .
– The agency or organization designated as the heir no longer exists at the time of opening the inheritance.
– In case there are many heirs according to the will and someone dies before or at the same time as the testator , one of many agencies and organizations is designated to inherit according to the will . If the will no longer exists at the time of opening the inheritance , only the part of the will related to this individual , agency or organization will not have legal effect .
– A will has no legal effect if the inheritance left to the heir no longer exists at the time of opening the inheritance ; If only a part of the inheritance left to the heir remains, the will regarding the remaining portion of the inheritance will still be valid .
– When the will has an illegal part that does not affect the validity of the remaining parts , only that part will not have legal effect .
– When a person leaves multiple wills for one property , only the last will has legal effect .
7. Heritage used for worship
Article 645 of the 2015 Civil Code regulates heritage used for worship as follows:
” first . In case the founder leaves behind a portion of the inheritance to be used for worship , that portion of the inheritance will not be divided equally . be assigned to a person designated in the will to perform worship ; If the nominated person does not execute the will properly or does not comply with the agreement of the heirs , the heirs have the right to transfer .part of the heritage used in worship for others to manage and worship .
The question is : What is a part of heritage ? This issue can be explained based on legislative history and logical thinking :
– According to the civil laws of the feudal states of Vietnam , such as the Hong Duc Code, incense sticks are 1/20 of real estate , according to the 1936 Northern Civil Code and the 1936 Central Civil Code . , incense burner is 1/5 of real estate ( land ) . The incense burner is assigned to the village chief to manage and use for worship . Thus , incense sticks are only a small part of the deceased ‘s estate left to their grandchildren and children to use , and to collect flowers and benefits for dog worship .
According to logical thinking , if the inheritance is divided into 2 or more parts , only that part can be used for worship, the remaining part can be divided into inheritance according to the will or according to the law .
In case the person leaving the legacy does not appoint a person to manage the worship legacy, the heirs shall appoint a person to manage the worship legacy . In this case , although the testator does not appoint a person to manage the worship legacy, the will still clearly specifies a part of the legacy for worship ( such as a sum of money , a house … ) , then Heirs still have to appoint someone to manage the inheritance used for worship.
In case all the heirs in the will have died , the part of the estate used for worship belongs to the person who is legally managing that estate from among the people . subject to inheritance according to law .
” 2 . In case the entire estate of the deceased is not enough to pay his or her property obligations , a part of the estate cannot be set aside for worship .
This regulation is to protect the rights of those who have interests in civil relations with the person leaving the will , when the remaining inheritance is not enough to pay the property obligations left by the deceased .
Worship is a long-standing cultural lifestyle of our people, showing respect for the dead, educating people around them to respect the deceased superiors and remember their gratitude. Therefore, the State respects and protects those good traditions, allowing individuals to spend part of their property for worship. This property is not considered an inheritance.
The inheritance used for worship is left according to the wishes of the testator . This inheritance is not divided but is assigned to a manager . This heritage can be a specific asset ( a perennial tree , a house , etc. ) . If it is an asset or a perennial tree , the manager has the right to collect the fruits and profits and use it to perform worship . Managers are not allowed to use it for their own purposes . There is no right to dispose of this inheritance . In case the person managing the estate uses it for worship but does not have the conditions to continue managing that estate , the heirs will agree to let someone else manage it .
Article 645 of the 2015 Civil Code does not have regulations on the nature of heritage used for worship ( not qualitative ) , but only quantifies the portion of heritage used for worship . Therefore , the testator can dispose of any property in his or her possession to use for worship .
This regulation is to protect people who have interests in civil relations with the person leaving a will , when the remaining inheritance is not enough to pay the property obligations left by the deceased .
8. Bequest
A bequest is a part (understood as a cult legacy) of property that a testator gives to another person with a commemorative meaning. With that meaning, there is a certain close relationship between the testator and the beneficiary of the property. People with assets want to keep that good feeling by giving a “gift” as a souvenir. The beneficiary of the inherited property has the right to own that property without having to bear the obligations left by the deceased. Except in cases where the entire estate is not enough to pay the obligations, the assets belonging to the will are used to fulfill the remaining obligations of the deceased.
