A will is an expression of personal will to transfer one’s property to another after that person's death. However, not every case of the deceased person has made a will in time, or there are cases where the will is made but is not legal and has no effect. So in case there is no will, or the will is illegal and invalid, how will the deceased’s assets be divided?
Property division in case there is no will, the will is not legal, the will is invalid
According to the provisions of the Civil Code 2015, in case the deceased does not leave a will, the will is illegal, or the will is invalid, the inheritance will be divided according to the law.
Inheritance according to law means inheritance according to the line of inheritance, the conditions, and the order of inheritance prescribed by law.
The legal heirs are defined in Article 651 of the 2015 Civil Code as follows:
“1. The legal heirs are specified in the following order:
a) The first line of inheritance includes: wife, husband, natural father, natural mother, adoptive father, adoptive mother, biological child, adopted child of the deceased;
b) The second line of inheritance includes: grandfather, grandmother, grandfather, grandmother, biological brother, sister, biological brother of the deceased; the biological grandchildren of the deceased and the deceased are grandfathers, grandmothers, maternal grandfathers, grandmothers;
c) 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.
2. The heirs of the same row shall enjoy an equal share of the estate.
3. People in the next line of heirs will only inherit if there is no one in the previous line of heirs because they have died, have no right to inherit, are disqualified from inheriting, or refuse to receive the estate.”
Common problems when the deceased does not leave a will
Firstly, the fact that the deceased did not leave a will can cause conflicts in the division of assets for family members. There may be a member who is a child whose property was given to him by his/her parents while his/her parents were still alive. If the parent dies if there is no will, the estate will be divided according to law. Thus, each child will receive an equal share of the inheritance, the child who has been given the property before will enjoy more of the parent's property, leading to the remaining children feeling disadvantaged, causing an emotional loss in the family.
Second, the deceased did not make a will which can lead to the loss of the estate. For example, in the case that before death, the deceased has a passbook but only the deceased know about it, when that person dies, the part of the estate that is the passbook may be lost without the relatives knowing. and receive an inheritance.
Dossier of declaration of inheritance in case there is no will
A dossier of declaration of inheritance in the absence of a will includes:
Notarization request form according to the form;
- Death certificate or papers proving that the person leaving the estate died;
- Documents proving the property of the person leaving the estate include Certificate of land use rights, ownership of houses and other properties attached to the land; savings book, Vehicle registration certificate; Share certificates…;
- Papers on the relationship between the heir and the estate leaver such as household registration book, birth certificate, identity card or citizen identification, DNA test results, valid judgment or decision of the Court on recognition of the personal relationship between the deceased and the heir…
The beneficiary of the will prepares all the documents and goes to the notary office to carry out the procedures for declaring the estate as prescribed.
Answers to some frequently asked questions:
Question 1: In case the deceased does not leave a will, how is the inherited property handled?
Answer: According to the provisions of Article 650 of the Civil Code, if the deceased does not leave a will, the inheritance will be distributed according to the law.
Question 2: What is an invalid will?
Answer: The effect of wills specified in Article 643 of the 2015 Civil Code is as follows:
1. The will takes effect from the time of opening the inheritance.
2. A will is not valid in whole or in part in the following cases:
a) The testamentary heir dies before or at the same time as the testator;
b) The agency or organization designated as the heir no longer exists at the time of opening the inheritance.
In case there are many heirs under the will and one of them dies before or at the same time as the testator, one of the many agencies or organizations designated to inherit according to the will no longer exist at the time of the testator's death. If the inheritance is opened, only the part of the will related to this individual, agency, or organization will not take effect.
3. A will is invalid if the estate left to the heir is no longer available at the time of opening the inheritance; if only part of the estate left to the heir remains, the will on the remaining part of the estate is still valid.
4. When a will has an illegal part that does not affect the validity of the remaining parts, only that part is invalid.
5. When a person leaves more than one will on a property, only the last will is valid.
Question 3: If the spouse has a child of his own when the spouse dies without leaving a will, will the stepchild inherit the inheritance?
Answer: In case the deceased does not leave a will, the inheritance will be divided according to law
According to the provisions of Clause 1, Article 651 of the 2015 Civil Code:
“1. The legal heirs are specified in the following order:
a) The first line of inheritance includes: wife, husband, natural father, natural mother, adoptive father, adoptive mother, biological child, adopted child of the deceased;
..
2. The heirs of the same row shall enjoy an equal share of the estate.
Accordingly, that stepchild is still the biological child of the deceased. So that stepchild still inherits their inheritance and the inheritance that this stepchild receives will be equal to the inheritance that the heirs of the same line receive.”
Question 4: Inheritance property is the right to use land, is it divided when the deceased does not leave a will?
Answer: According to the provisions of Article 650 of the 2015 Civil Code, if the deceased does not leave a will, the deceased's estate will be divided according to the law. Accordingly, all estates left by the deceased, including land use rights, will be divided according to the law to the people of the heirs according to the provisions of Article 651 of the Civil Code.
Thus, if the inheritance is the right to use the land but the deceased did not leave a will, the estate will be divided according to the law.
Question 5: Will a will that is not notarized or authenticated is considered legal?
Answer: According to the provisions of Article 630 of the 2015 Civil Code:
1. A lawful will must fully satisfy the following conditions:
a) The testator is lucid and lucid while making the will; not be deceived, threatened, or coerced;
b) The content of the will does not violate the prohibition of the law or against social ethics; the form of a will is not contrary to the provisions of the law.
2. Wills of persons aged between full fifteen and under eighteen must be made in writing and must be approved by their parents or guardians on the making.
3. The will of a person with physical limitations or an illiterate person must be made in writing by a witness and notarized or authenticated.
4. A written will that is not notarized or authenticated shall only be considered lawful if all the conditions specified in Clause 1 of this Article are satisfied.
5. An oral will is considered legal if the oral testator shows his or her final will in front of at least two witnesses and immediately after the oral testator shows his/her final will, the witness records to copy, co-sign, or fingerprint. Within 05 working days from the day on which the oral testator expresses his final will, the will must be certified by a notary public or a competent authority to certify the signature or fingerprints of the witness.
=> According to the above provisions, a will that is not notarized and notarized is still considered legal if the making of a will meets the conditions specified in Clause 1, Article 630 of the Civil Code as mentioned above.
Question 6: How to transfer the name of the red book left by the parents when they died without making a will?
Answer: If the deceased does not leave a will, the property will be divided according to the law. For real estate assets, some relevant legal procedures must be carried out.
After determining who has the right to inherit the inheritance left by his parents as real estate, the person receiving the estate who wants to transfer the name of the red book from his parents to his/her name must first carry out the procedures for declaring the inheritance at Notary office.
The only person entitled to the estate according to the law or those who are jointly entitled to the estate according to the law but have agreed not to divide the estate have the right to request the notarization of the declaration of the estate.
After completing the procedures for notarization of the document declaring the inheritance, the estate recipient will carry out the procedures at the land registration office to transfer the name to the red book following the law.
