PROCEDURE OF OPENING INHERITANCE

Legal grounds:

– Law on Notarization No. 53/2014/QH13 dated June 20, 2021 (“Law on Notarization”);

– Civil Code No. 91/2015/QH13 dated November 24, 2015 (“Civil Code”);

– Decree 29/2015/ND-CP dated March 15, 2015 on elaboration of and guidelines for the Law on Notarization (“Decree 29/2015/ND-CP”).

1. Forms of Inheritance:

Under laws, inheritance is divided into two (02) cases including: (i) Inheritance under a will; and (ii) Inheritance at law.

 1.1. Inheritance under a will

(i) Formalities for wills and lawfull wills:

a. A will must be made in writing, if it is not able to be made in writing, it may be made orally[1]:

– Written wills comprise[2]:

+ Unwitnessed written wills;

+ Witnessed written wills;

+ Written wills which are notarized;

+ Written wills which are certified.

– Oral wills[3]:

+ Where a person is likely to die due to illness or any other reason and it is not possible for him or her to make a written will, such person may make an oral will;

+ If the testator is alive and is of sound mind three (03) months after he or she has made an oral will, such will shall automatically become invalid.

b. Lawfull wills[4]:

– A will must satisfy the following requirements in order to be lawful:

+ The testator was of sound mind when he or she made the will; and he or she was not deceived, threatened or coerced into making the will;

+ The contents of the will are not contrary to law or social morals and the will complies with legal formalities.

A written will which is not notarized or certified shall be deemed lawful only if it satisfies these requirements;

– A will made by a person between fifteen (15) and eighteen (18) years of age must be made in writing and with the consent of the parents or guardian of such person;

– A will made by a person who is incapacitated or illiterate must be made in writing by a witness and must be notarized or certified;

– An oral will shall be deemed lawful only if the testator orally expressed his or her last wishes before at least two (02) witnesses who immediately thereafter recorded those wishes in writing and signed or fingerprinted the document. Such will must be notarized or certified within five (05) working days of the date on which the testator orally expressed his or her last wishes.

(ii) Heirs under a will:

a. Being the organizations, individuals named as heirs in the will;

b. Heirs notwithstanding contents of wills[5]:

Where a testator does not grant any of the following persons an inheritance, or grants any such person an inheritance which is less than two-thirds of the share that person would have received if the estate had been distributed according to law, such person shall be entitled to a share of the estate equivalent to two-thirds of the share that he or she would have received if the estate had been distributed in accordance with law, unless they have disclaimed their inheritance as prescribed in Article 620 of the Civil Code or are not entitled to inherit as prescribed in Clause 1 Article 621 of the Civil Code:

– Children who are minors, father, mother, wife or husband of the testator;

– Children who are adults but who are incapable of working.

1.2. Inheritance at law

(i) Heirs at law:

According to Article 651 of the Civil Code, heirs at law are categorized in three (03) order of priority as follows:

a. The first level of heirs comprises: spouses, biological parents, adoptive parents, offspring and adopted children of the deceased;

b. The second level of heirs comprises: grandparents and siblings of the deceased; and biological grandchildren of the deceased;

c. The third level of heirs comprises: biological great-grandparents of the deceased, biological uncles and aunts of the deceased and biological nephews and nieces of the deceased.

Heirs at the same level shall be entitled to equal shares of the estate.

Heirs at a lower level shall be entitled to inherit where there are no heirs at a higher level because such heirs have died, or because they are not entitled to inherit, have been deprived of the right to inherit or have disclaimed the right to inherit.

(ii) Cases of inheritance at law[6]

Inheritance at law shall apply in the following cases

a. There is no will;

b. The will is unlawful;

c. All heirs under the will died prior to or at the same time as the testator dying, or the bodies or organizations which are entitled to inherit under the will no longer exist at the time of opening inheritance;

d. The persons appointed as heirs under the will do not have the right to inherit or disclaimed the right to inherit;

Inheritance at law shall also apply to the following parts of an estate:

a. Parts of an estate in respect of which no disposition has been made in the will;

b. Parts of an estate related to an ineffective part of the will;

c. Parts of an estate related to heirs under the will not having the right to inherit, having disclaimed the right to inherit, or having died prior to or at the same time as the testator dying; and parts of an estate related to bodies or organizations entitled to inherit under the will but no longer existing at the time of opening inheritance.

2. Procedure of opening inheritance

2.1. General provisions

(i) Time of opening inheritance[7]: shall be the time when the deceased dies;

Where a court declares that a person is dead, the time of opening inheritance shall be the date determined by the Court provided in Clause 2 of Article 81 of the Civil Code;

(ii) Place of opening inheritance[8]: shall be the last place of residence of the inheritance leaver. If the last place of residence is not able to be determined, the place of opening inheritance shall be the place at which all or most of the estate is located;

(iii) Statute of limitations for inheritance[9]:

a. The statute of limitations for an heir to request distribution of an estate is thirty (30) years for immovable property and ten (10) years for movable property from the time of opening inheritance;

b. The statute of limitations for an heir to request determination of his/her inheritance right or rejection of inheritance of another person is ten (10) years from the time of opening inheritance;

c. The statute of limitations for an heir to perform property obligations left by the decedent is three (03) years from the time of opening inheritance.

2.2. Procedure of opening inheritance

(i) Step 1: Application submission and examination:

a. Application includes:

– Notarization request form;

– Death certificate or extract of death certificate of the inheritance leaver;

– Marriage registration certificate or extract of marriage registration of the inheritance leaver;

– Identity papers of the heirs such as Citizen ID/ Identity card, Household book, etc.;

– Papers proving the relationship between the inheritance leaver and the estate heirs (in case of inheritance at law): birth certificate, marriage registration, etc.;

– A copy of will (in case of inheritance under a will);

– Papers proving the inheritance leaver’s land use rights or ownership of that estate (in case the estate is land use rights or an asset subject to ownership registration under law);

– Draft of written agreements on division of inheritance or written declarations for acceptance of inheritance (if any).

Note: the originals of documents/papers above are required to be presented for comparison.

b. Place of application submission: any notary organization where the real estate is located;

c. Application examination:

Upon receipt of the application, a Notary shall verify whether an inheritance leaver is the person having land use rights or asset ownership and the notarization requesters are estate heirs.

– If the application is sufficient, it will be received, accepted and recorded in the notary book;

– If the application is incomplete, the heirs will be guided to provide additional documents;

– If suspecting or having grounds to believe that the leaving and inheritance of the estate are unlawful, the notary may reject the notarization request or conduct verification or solicit assessment at the request of the notarization requester.

(ii) Step 2: Posting orders for notarization of agreements on division of inheritance, declaration of inheritance reception[10]

a. Posting:

– The document shall be posted by the notary organization at the People’s Committee of the commune where the last permanent residence of the inheritance leaver; if such residence is not identifiable, the document shall be posted where the last temporary residence of such person is located;

– If the inheritance comprises both real estate and movable estate or the inheritance is only real estate, the document shall be posted at the People’s Committee of the commune where the real estate is located;

– If the inheritance comprises only movable estate, the notary office and the deceased’s last permanent or temporary residence are not in the same province, then the notary office may request the People’s Committee of the commune where the deceased’s residence is located to impose the deadline for posting.

b. Posted information:

– The document must specify the full name of the deceased; full names of beneficiaries; relationships of beneficiaries and the deceased, the list of inheritance;

– The posted document must specify that any complaint or denunciation against unintentional or deliberate omission of inheritance beneficiaries or inheritors; the inheritance is not under the ownership of the deceased has been sent to the notary office which posts the document.

c. Posting period is fifteen (15) days;

d. The People’s Committee of the commune where the document is posted shall confirm the receipt of the posted document and protect the document throughout the posting period.

(iii) Step 3: Acceptance of oders for notarization and the results

a. After the posting period without complaints or denunciations, the notary organization will guide the heirs to sign the following documents:

– Written Declaration for Acceptance of Inheritance[11] if:

+ There is a sole estate heir (whether at law or under a will);

+ Co-heirs at law agree not to divide the inheritance;

+ All heirs including the heirs under a will and the heirs notwithstanding contents of wills as prescibed in Article 644 of the Civil Code receive the inheritance and agree not to divide the inheritance.

– Written Agreements on Division of Inheritance[12] if:

+ Co-heirs at law agree to divide the inheritance;

+ Heirs under a will which does not specify the portion of the inheritance to be enjoyed by each heir agree to divide the inheritance;

+ All heirs including the heirs under a will and the heirs notwithstanding contents of wills as prescibed in Article 644 of the Civil Code receive the inheritance and agree to divide the inheritance.

b. After that, the Notary requests the heirs to present the originals of the above-mentioned documents/ papers for checking and comparison before signing the testimony and each page of the document;

c. Upon completion, the notary organization collects the notary fees and remuneration and return the original of the Written Agreements on Division of Inheritance or the Written Declaration for Acceptance of Inheritance to the heir(s).

(iv) Step 4: Registration the ownership of the inheritance

For some types of property which are required to registered at the competent State agency such as houses, land use rights, cars, motorbikes, etc. after the completion of declaration of the inheritance, the estate beneficiary shall submit an application, including the Written Agreements on Division of Inheritance or the Written Declaration for Acceptance of Inheritance, to the competent State agency for the procedures of transferring the ownership according to the provisions of laws.

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[1] Article 627 of the Civil Code;

[2] Article 628 of the Civil Code;

[3] Article 629 of the Civil Code;

[4] Article 630 of the Civil Code;

[5] Article 644 of the Civil Code;

[6] Article 650 of the Civil Code;

[7] Article 611 of the Civil Code;

[8] Article 611 of the Civil Code;

[9] Article 623 of the Civil Code;

[10] Article 18 of Decree 29/2015/ND-CP;

[11] Article 58 of Law on Notarization;

[12] Article 57 of Law on Notarization.