What is Inheritance? Latest regulations on types of inheritance? Land is a type of property that needs attention while settling property as inheritance?
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1. What is an inheritance?
The concept of inheritance has not been specified by any legal document, but most of it is only stated with an enumeration to determine what assets the estate includes. This concept has been introduced by some scientists when studying inheritance law on the basis of certain aspects.
From a scientific point of view of civil law: Inheritance is the entire property left under the ownership of the deceased, which is the object of the transfer of that person’s property to the heirs, recognized and guaranteed by the state..
Article 612 of the 2015 Civil Code stipulates: “Estate includes the deceased’s separate property, the deceased’s share of the property in common with others“.
Accordingly, estate is the property owned by the heirs while they are still alive. It can be objects, money, valuable papers and property rights. Estate property is classified as immovable and movable. Inherited real estate may include: other properties attached to land, houses, construction works; other property as prescribed by law.
2. Latest regulations on types of inheritance:
– Property owned by the person for inheritance and lawful income, savings, housing, means of subsistence and tools of production used in cases where individual work is permitted.
– Property rights that the heir is entitled to under a contractual relationship or due to compensation for damage.
– Obligations on the property of the heir arising from a contractual relationship, to damage or by a decision of a competent authority (for example, a debt, a compensation for damage, etc.) …).
It should be noted that property rights and obligations attached to the deceased person’s identity (i.e. cannot be transferred to another person), are not his or her inheritance. For example: The rights to enjoy disability benefits, death benefits, alimony obligations after divorce… can only be exercised while the beneficiary is still alive. Support obligations after a divorce must be performed only while the obligor is still alive. Therefore, the heirs are not entitled to the type of property rights attached to the relatives of the deceased, nor are they required to perform that type of property obligation.
3. Land is a type of property that needs attention while dealing with inheritance property:
According to Articles 19 and 20 of the new Constitution, land belongs to the entire people.
see more: Division of inheritance according to the provisions of the Civil Code 2015
Thus, land is not under private ownership of citizens, so it cannot be inherited. If the current land user dies, the adjustment of the right to use that area will be prescribed by the land law. The right to use land, trees and crops belongs to the deceased person and remains in the inheritance. Thus, when it comes to inheritance of land, we must mention the story of inheritance of land use rights.
Inheritance of land use rights is the transfer of property being land use rights from a deceased person to a living person. The issues surrounding inheritance are extremely complex leading to many disputes. So, when is land use right regulated as heritage?
Pursuant to Section 1, Part II of Resolution 02/2004/NQ-HDTP stipulating that land use rights are heritage when:
- For the land left by the deceased (regardless of whether there is property or no property attached to the land use right) for which that person has obtained a land use right certificate under the 1987 Land Law, the Land Law 1993, “Land Law 2013”, that land use right is an inheritance.
- For the case of land left by a deceased person who has one of the papers specified in Clauses 1, 2 and 5, Article 50 of the “Land of 2013”, from July 1, 2004 the right to That land use is also an inheritance, regardless of the time of opening the inheritance.
- In case the deceased leaves the land use rights without the papers above but has a legacy of houses or other architectural objects attached to that land use right and there is a document from the competent People’s Committee certifying that the land use is lawful, but it has not yet been completed.
Is the land use right certificate grantedthen land use rights and asset attached to the land is considered as an estate when the Court settles the request for division of the estate.
3.1. Conditions for inheriting land use rights:
In order to inherit the land use right, the heir must satisfy the conditions specified in Article 188 of the 2013 Land Law. Specifically:
- Land that has a certificate of land use right or is eligible for a certificate of land use right;
- Undisputed land;
- The land use right is not distrained to secure judgment enforcement;
- Inherited land is in the land use term.
- The inheritance must be registered at the land registry office and takes effect from the time of registration in the cadastral book.
- In fact, many individuals and organizations do not register land and obviously will not be registered in the cadastral book. At this time, the inheritance has not yet taken effect, leading to confusion in the land use process and arising disputes.
- For overseas Vietnamese who are not eligible to buy houses associated with residential land use rights in Vietnam, they are not entitled to inherit land use rights, which means that
land use right certificates are not grantedownership of houses and other land-attached assets but are entitled to inherit the value of land use rights.
3.2. Receive inheritance of land use rights according to will:
Testament is the expression of an individual’s will to transfer his or her property to another person after death. Accordingly, a person who is eligible to make a will as prescribed in Article 625 of the Civil Code 2015 (BLDS) is entitled to express his will to transfer his/her property to anyone in writing or orally (in in case it is not possible to make a will in writing).
A will must satisfy the conditions on form and content as prescribed in Articles 627, 630, and 631 of the Civil Code.
see more: Regulations on procedures for refusing to receive inheritance
First, the following persons are still entitled to an inheritance equal to two-thirds of that of an heir at law if the estate is divided according to law, in case they are not entitled to the estate by the testator or grant only less than two-thirds of that portion of the estate:
- Minor children, fathers, mothers, wives and husbands;
- Adult children without working capacity.
The above provisions do not apply to persons who refuse to receive the estate as prescribed in Article 620 or who have no right to inherit the estate as prescribed in Clause 1, Article 621 of this Code.
Second, for the part of the estate used for worship left by the testator, that part of the estate shall not be divided and inherited and shall be assigned to the person designated in the will or to other persons in accordance with the provisions of law. governing law to perform the worship.
3.3. To inherit land use rights according to the law:
Pursuant to Chapter XXIII of the 2015 Civil Code, the law on inheritance is as follows:
First, inheritance at law is applied in the following cases:
- There is no will;
- Illegal will;
- The heirs under the will die before or at the same time as the testator; the agency or organization entitled to inherit according to the will no longer exists at the time of opening the inheritance;
- Persons designated as heirs under the will without the right to inherit or refuse to receive the estate.
Second, the at-law heirs shall be entitled to inherit by determining according to the line of inheritance in turn in the following order:
- The first line of inheritance includes: wife, husband, natural father, natural mother, adoptive father, adoptive mother, biological child, adopted child of the deceased;
- The second line of inheritance includes: grandfather, grandmother, grandfather, grandmother, brother, sister, brother of the deceased; the biological grandchildren of the deceased and the deceased are grandfathers, grandmothers, maternal grandfathers, grandmothers;
- The third line of inheritance includes: paternal and maternal great-grandfathers of the deceased; biological uncle, biological uncle, biological uncle, aunt, biological aunt of the deceased; the biological grandchildren of the deceased and the deceased are biological uncles, biological uncles, biological uncles, biological aunts, biological aunts; great-grandson of the deceased, but the deceased is a paternal great-grandfather.
Heirs in the same row are entitled to an equal share of the estate. Those in the following line of heirs are entitled to inherit only if no one in the previous line of heirs is dead, has no right to inherit, is disqualified from inheriting or refuses to receive the estate.
Note: In case a child of the estate leaver dies before or at the same time as the leaver, the grandchild shall be entitled to the portion of the estate that his or her father or mother would enjoy if he was still alive; if the grandchild also dies before or at the same time as the person leaving the estate, the great-grandchild will enjoy the portion of the estate that the great-grandchild’s father or mother would enjoy if he was still alive.
see more: Division of inheritance when the heir is under 18 years old
3.4. Family Church:
– The church has a long history or the church built by its members with effort and money, so it is a property under the common ownership of the members of the family, so it cannot become the inheritance of the head. them (or any individual). If there is a dispute, it shall be resolved according to the common wishes of its members.
– A church built by the head of the family with his own money and then lent to them as a place of worship or the house of the head of the family that is set aside a part of the area to be a place of worship is still under the ownership of the head of the family. If the head of the family dies, this house is inherited.
3.5. Production materials and houses subject to renovation:
The means of production, means of business, means of transport of the reformed bourgeoisie who have been put into the public-private partnership, or the houses of the bourgeois, whose houses have been transferred to the State for management, are all owned by the State. Government.
As for the housing area that, during the socialist renovation, the State has given back to the landlord to live in, it is still under the ownership of the landlord. If the owner dies, that part of the property still belongs to the estate.
The percentage of house rent that bourgeois people are entitled to (according to Circular No. 12-NV dated April 22, 1964 of the Ministry of Home Affairs and Circular No. 31-BXD dated October 15, 1977 of the Ministry of Home Affairs). Ministry of Construction) or an annual fixed interest, calculated as a percentage of the capital enjoyed by the industrial and commercial bourgeois (according to Decision No. 71-CP dated April 13, 1972 of the Government Council) is in order to create conditions for the working bourgeoisie to gradually improve, to live by their own labor. If they die, that money doesn’t go to their inheritance.
4. Means of production of cooperative members of agricultural or handicraft production cooperatives:
The means of production have been publicized and belong to the collective ownership of cooperatives. The means of production that have not been privatized are still under the ownership of the former owner. If that person dies, these means of production will still belong to the inheritance, but when dividing the inheritance, it should be resolved in a reasonable and reasonable manner, to still ensure the interests of the heirs, without significantly affecting the heirs. to cooperative production.
5. Equipment borrowed from the agency:
Living utensils (such as beds, cabinets, tables and chairs) borrowed by officials and employees according to standards and upon retirement have been fully granted (according to Decision No. 296-CP dated November 20, 1978 of the Association). government contracts), from the date of grant, these properties belong to the grantee’s ownership. When the grantee dies, the property belongs to the inheritance.
Things that are borrowed but not granted must be returned to the agency or enterprise.
see more: Regulations on heritage used for worship according to the Civil Code
6. Gold, silver, platinum and diamond:
The State recognizes the people’s legitimate ownership rights in gold, silver, platinum and diamonds, regardless of quantity, whether or not processed into jewelry and fine arts.
To protect that rightful ownership, the State stipulates that gold, silver, platinum and diamond owners must declare for the State to issue a certificate of ownership (according to Decision No. 39-CP dated February 9-29). 1979 of the Council of Government). Things that have been declared and have a valid certificate, when the owner dies, can be left as an inheritance like other legal assets.
For things that are not declared and do not have a valid certificate, the Court needs to discuss with the Bank about the settlement policy. However, if the quantity is small (gold 37.5 g, platinum 37.5 g, silver 375 g, diamond 0.600 g or less), the Court will divide and notify the divider to the declaring bank.
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