Date: 30 July 2021
Writers: Tuyen Pham & Linh Nguyen
Inheritance is one of the important rights that Vietnamese laws have regulated. However, not everyone is mindful of those regulations. Through a List of 28 Frequently Asked “Difficult” Questions underneath, BLawyers Vietnam will provide you an overview of legal issues on this matter.
1. How to distribute a decedent’s inheritance under their will?
The distribution of inheritance according to the wishes of the person who is leaving their estate under their will. If the will fails to specify the share of each heir, the estate shall be divided equally among the persons named in the will, unless otherwise agreed.
If the will provides for the distribution in kind of an estate, the heirs shall be entitled to receive their share in kind, as well as the benefits and income derived from such in kind or, must bear the depreciation of such share in kind up to the time of distribution.
In case the will provides for the distribution in certain proportions of an estate to its total value, such proportions shall be calculated based on the value of the estate at the time of distribution.
2. Who cannot receive an inheritance?
The following person cannot receive inheritance:
- Persons convicted of having intentionally caused the death of or harmed the health of the deceased, of having seriously mistreated or tortured the deceased, or of having harmed the honor or dignity of the deceased;
- Persons having seriously breached their duty to support the deceased;
- Persons convicted of having intentionally caused the death of another heir to obtain all or part of the entitlement of such other heir to the estate; and
- Persons deceiving, coercing, or obstructing the deceased for the making of the will, or forging, altering or destroying the will to obtain all or part of the estate contrary to the wishes of the deceased.
However, the above person still can receive an inheritance of estates if the deceased were aware of such acts and still allowed them to inherit estates under the will.
3. How to resolve the conflict when someone disagrees with the distribution of the inheritance?
If one of the heirs disagrees with the distribution of the estate, laws encourage them to reach an agreement with their co-heir(s). If they are unable to reach an agreement, they can request the Court to settle.
In case the disputed inheritance is the land, conciliation must be conducted advance at the commune-level People’s Committee where the disputed land is located.
4. Is the will valid in the absence of notarization or authentication?
A non-notarized written will is only recognized legal if it satisfies the following conditions:
- The testator was of sound mind when he or she made the will; and he or she was not deceived, threatened, or coerced into; and
- The contents of the will are not contrary to law or social morals and the will complies with legal formalities.
Of note: Notarization or authentication means the written certification by the competent authorities/ individuals about the authenticity and lawfulness of a contract or another civil transaction or the Vietnamese or foreign-language translation of a paper/ document.
5. What are the procedures for declaring inheritance under the will?
The following are the procedures for declaring inheritance:
- Step 1: Submitting the inheritance declaration dossier to a notary office;
- Step 2: The notary office checks the dossier;
- iStep 3: The notary office posts the information on the acceptance of the written declarations at the commune-level People’s Committee within 15 days;
- Step 4: After 15 days, if there is no complaint or denunciation, the Notary Office notarizes the written declaration for estate acceptance.
- Step 5: The heir obtains the result after signing the written declaration, paying the notary charge.
6. How will the inheritance be distributable if the parent-child relationship is not shown on the birth certificate or if the birth certificate is not available?
If there is no will, the estate will be dividable under the law for the person determined to have the parent-child relationship. A birth certificate is one of the documents that can be used to prove the legal parent-child relationship.
Therefore, if the above relationship is not shown on the birth certificate or there is no birth certificate, it is difficult to determine the parent-child relationship. However, it is still possible to prove the parent-child relationship by other means such as a household registration book or to request a copy of the birth certificate from the commune-level People’s Committee to issue in case the birth certificate is lost.
7. Who can inherit if there is no will? How to distribute?
In case of not having a will, the estate will be distributed according to law. Accordingly, inheritance is divided by a row of inheritance and compliance in the following order:
- The first level of heirs: spouses, biological parents, adoptive parents, offspring, and adopted children of the deceased;
- The second level of heirs: grandparents and siblings of the deceased; and biological grandchildren of the deceased;
- The third level of heirs: biological great-grandparents of the deceased, biological uncles and aunts of the deceased, and biological nephews and nieces of the deceased.
Of note, the heirs at the same level shall be entitled to equal shares of the estate, and people at the lower level will be entitled to inherit if there are no heirs at the higher level.
8. Is an oral (spoken but not written) will valid?
An oral will is valid if the testator orally expresses his/her last wishes in front of at least two witnesses who immediately thereafter record those wishes in writing and sign or fingerprint the document. Of note, within 05 working days from the date of making an oral will as above, certifying of signatures and fingerprints of the witnesses is a must.
If satisfying the above conditions, the oral will is valid and the people having names in the will can receive the estate according to the will.
9. How to distribute the inheritance if there are no heirs?
If there are no heirs, the remaining estate after fulfilling all property obligations belongs to the State.
10. Can stepchildren inherit from his/her stepmother or stepfather?
Stepchildren who have a caring and nurturing relationship with their stepfather/ stepmother like a biological child can inherit the estate like the biological one.
11. Can the adopted child have the same legal rights to their adoptive parents’ inheritance as the biological child?
Adopted children and biological children are both in the first level of inheritance, therefore the adopted children have the same right to inherit the estate of adoptive parents as biological children.
12. Can the unborn child have the right to inherit from his/ her father?
The unborn child can inherit from their father. According to Vietnamese law, the fetus who was conceived but not yet born before the testator’s death and then was born alive can inherit.
Of note, if the unborn child dies before birth, the other heirs can receive his or her share.
13. Is the daughter-in-law entitled to inherit from her parents-in-law?
In the cases of legal inheritance, the daughter-in-law is not at the heir level, therefore, she cannot inherit from her parents-in-law.
However, she still has the right to inherit from her parents-in-law in the following two cases:
- The parents left a will for their daughter-in-law before passing away.
- The daughter-in-law inherits from her husband. In this case, the husband dies after the death of his parents.
14. Can the grandchildren have the right to inherit the estate left by their grandparents?
If the parents die before or at the same time as grandparents, grandchildren of the testator shall inherit the legacy that their parents are entitled to inherit if they had been alive. If the grandchildren also die before or at the same time as their grandparents, the great-grandchildren of the testator shall inherit if they are still alive.
15. Can the stranger inherit the estate under the will?
The testator has the full right to leave his estate to heirs, including strangers. Leaving property by will is only effective when that will is valid. However, this person is not entitled to inherit the entire estate if the testator has heirs who inheritance notwithstanding contents of wills including:
- Children who are minors, father, mother, wife, or husband of the testator;
- Children who are adults but who are incapable of working.
16. Can the heir disclaim the inheritance? What is the procedure? Can he/she change his/her mind after refusing an inheritance and still be eligible to inherit the estate?
The heir can disclaim an inheritance unless the purpose of the refusal is to avoid performing its property obligations to other people.
The refusal of inheritance must be made in writing and sent to the administrators of estates, other co-heirs, and the person authorized to distribute the estate so that these people are aware. The refusal of the estate must be made before the time of inheriting distribution.
It will become effective if the heir disclaims to receive the estate completely voluntarily, without coercion, and in writing. Therefore, they have no right to change their mind.
17. Is it possible to distribute the inheritance of foreign real estate?
If inheritance is the immovable property in a foreign country, the division of inheritance shall comply with the law of the country where such immovable property is located.
18. Can the ex-spouse inherit each other’s estate after divorce?
An individual can inherit the estate of the spouse if the husband/wife dies while the couple has been in the divorce period at the Court. If the divorce procedure is completed, this individual is no longer listed in the first level of the heir when dividing the inheritance of the ex-spouse. Therefore, this one has no right to inherit.
19. Is it possible to make the will for distributing the estate to foreigners?
There are no provisions in Vietnamese law limiting the right to distribute the estate to foreigners or foreigners to receive an estate of the foreigners from Vietnamese. Therefore, the Vietnamese can leave an inheritance for the foreigners if the will is legal per the law. However, the foreigner will face some restrictions if the estate is real estate.
20. Is the will made in a foreign language valid?
A will written in a foreign language is still valid if it is translated into Vietnamese and notarized.
21. How is the inheritance distributed if the heir dies before the deceased?
If the heir dies before the testator, the portion of the inheritance that he/she should have received will be passed down to his or her children.
22. What should be done if a new heir appears suddenly after the inheritance has been distributed?
If the estate has already been distributed but a new heir appears, the estate shall not be re-distributed in kind. However, the heirs who have already received a share of the estate must pay the new heir an amount equal to his/her share of the estate at the time of inheritance distribution in proportion to the part the estate received.
23. Can foreigners make the will in Vietnam? What conditions are required so that it is valid?
Foreigners can make the will in Vietnam but they must comply with the provisions of Vietnamese law regarding the form of wills.
The following conditions must be satisfied for a will made by a foreigner in Vietnam to be valid:
- The testator must have full power to decide the content of the will according to his/her wishes and not be affected by the others;
- The testator must not be deceived, threatened, or coerced into making the will;
- The contents of the will are not contrary to law or social morals; and
- The form of the will is not conflict with the provisions of the law.
24. Is it possible to inherit while failing to fulfill the obligation to take care of the parents?
Children should morally take care of and support their parents. However, civil law still respects the wishes of the testator. Therefore, children who do not look after their parents still have the right to inherit from them, except for the cases mentioned in Question 2 above.
25. Is it possible to inherit saving books?
A Saving book is deemed as an object that records the ownership of the person named in this book, in which, the main estate is the money in the bank.
If the saving book is the private property of the holder, the money in the bank under-saving book is considered an estate for inheritance when the holder dies.
If the saving book is the common property of two or more people, the money in the passbook is considered common property when the holder dies. Then, only the deceased person’s property in the passbook saving is considered an estate for inheritance.
26. Is it possible to inherit the land that does not have the land use right certificate?
Even if a land use right certificate is not available, distributing the inheritance can still be fine. Of note, the owner of the estate should have a document from the competent People’s Committee determining that the land is legal, or a document from the competent People’s Committee stating that the land use does not violate the planning and can be considered for allocation of land use rights.
27. What taxes must be paid when receiving an inheritance?
The heir must only pay personal income tax (“PIT”) if the inheritance consists of real estate, other estates subject to registration, securities, capital contribution in economic organizations.
Of note, the heirs are not required to pay PIT if they receive a real estate inheritance from a person who has a marriage, blood, or nurturing relationships such as husband and wife; biological father/mother with their children; adoptive father/ mother with their adopted children, etc.
28. Is it possible to authorize another person to negotiate the distribution of the inheritance?
Individuals can authorize others to perform the agreement on the distribution of inheritance. However, the representative shall not be one of the co-heirs.
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