1. Characteristics of Inheritance

Inheritance involves the transfer of assets from the deceased to the living, with the assets left behind referred to as the estate. Inheritance disputes arise only upon the death of an individual (or when a court declares a person to be deceased). The moment of inheritance opening is the time of the asset holder’s death. From this point, the heirs have rights and obligations to the assets left by the deceased. Only individuals can leave an estate, but heirs can be individuals or organizations.

The main subjects in inheritance disputes are individuals. The majority of inheritance disputes are between individuals, with disputes between individuals and organizations being quite rare. Inheritance disputes may involve a few parties or many members of a family or clan.

The object of dispute in most inheritance cases is property and property rights. Typically, the estate consists of assets of significant value or assets with sentimental importance. The greater the economic value and sentimental significance of the estate, the more intense the disputes tend to be.

Inheritance disputes are often intertwined with traditional family and clan values, involving relationships rooted in the origins of a family or lineage, and in many localities, they are associated with customs, cultural identity, etc. If not resolved impartially, inheritance disputes can destroy familial and clan relationships that have been formed over generations.

2. Legal Provisions on Inheritance

Regarding the Moment and Location of Inheritance Opening

The moment of inheritance opening is the time of the asset holder’s death. In cases where a court declares a person to be deceased, the moment of inheritance opening is the date determined under paragraph 2 of Article 71 of the Civil Code.

The location of inheritance opening is the last residence of the person leaving the estate; if the last residence cannot be determined, the location of inheritance opening is where the entire estate is located or where the majority of the estate is situated.

Thus, determining the moment and location of inheritance opening is crucial as it establishes the deceased’s heirs, the estate left behind, the competent court for jurisdiction, the place for fulfilling obligations, and the statute of limitations for initiating inheritance claims.

Heirs

According to Article 613 of the Civil Code, “an heir must be an individual who is alive at the moment of inheritance opening or born and alive after the moment of inheritance opening but was conceived before the death of the person leaving the estate. If the heir by will is not an individual, it must exist at the moment of inheritance opening.”

Heirs include those by will and those by law. Accordingly, statutory heirs are determined in the following order:

First order of heirs includes: Spouse, biological father, biological mother, adoptive father, adoptive mother, biological children, and adopted children of the deceased;

Second order of heirs includes: Paternal grandfather, paternal grandmother, maternal grandfather, maternal grandmother, biological brothers, biological sisters of the deceased; Biological grandchildren of the deceased where the deceased is the paternal grandfather or maternal grandmother;

Third order of heirs includes: Great-grandfather, great-grandmother of the deceased; Biological uncles, biological aunts of the deceased; Biological grandchildren of the deceased where the deceased is an uncle or aunt; Great-grandchildren of the deceased where the deceased is the great-grandfather or great-grandmother.

Heirs of the same order inherit equal shares of the estate. Heirs of a subsequent order inherit only if there are no surviving heirs of the preceding order.

However, in some cases, whether by will or by law, individuals specified in paragraph 1 of Article 621 of the Civil Code shall not be entitled to inherit unless the person leaving the estate was aware of their actions but still bequeathed them the estate by will.

Furthermore, as stipulated in Article 620 of the Civil Code, “an heir has the right to disclaim the estate, except when the refusal is intended to evade the fulfillment of their financial obligations to others. The disclaiming of the estate must be documented in writing and sent to the estate administrator, other heirs, and the person tasked with dividing the estate. The refusal to accept the estate must be expressed before the estate is divided.”

Inheritance

According to the provisions of Article 612 of the Civil Code, “the estate includes the deceased’s separate property and the deceased’s share in the joint property with others.” Thus, the estate is the property left by the deceased. As stipulated in Article 105 of the Civil Code, “property includes objects, money, valuable papers, and property rights. Property comprises real estate and personal property. Real estate and personal property may be existing assets and assets that will be formed in the future.”

On the other hand, the estate does not include the obligations of the deceased. Therefore, if the person leaving the property also has obligations related to the property, these obligations are typically settled using the deceased’s assets. After the settlement, the remaining portion is determined as the estate and is distributed according to the will or the provisions of the law. The settlement of property obligations left by the deceased follows the regulations of Article 615 of the Civil Code.

Will

According to the provisions of Article 624 of the Civil Code, “a will is the expression of an individual’s will to transfer their property to others after death.”

An individual has the right to make a will to dispose of their property; to leave their property to the heirs according to the law; to inherit the estate by will or according to the law.

A will must be made in writing. If it is not possible to make a written will, an oral will may be made.

A written will includes:

• A written will without witnesses;
• A written will with witnesses;
• A notarized written will;
• A written will with authentication.

Oral will: In the event that a person’s life is threatened by death due to illness or other reasons and they cannot make a written will, an oral will may be made. An oral will is only considered legal if the person making the oral will expresses their last will in the presence of at least two witnesses, and immediately thereafter, the witnesses must record it, sign, or mark it. Within 05 working days from the day the person making the oral will expresses their last will, the will must be confirmed by a notary or a competent authority to authenticate the signatures or marks of the witnesses. After 03 months from the time the oral will is made, if the testator is still alive, lucid, and of sound mind, the oral will is automatically revoked.

Both written and oral wills must meet the following conditions: The testator is lucid and of sound mind while making the will; not deceived, threatened, or coerced. The content of the will does not violate the prohibitions of the law, is not against social ethics; the form of the will does not contravene the provisions of the law.

Furthermore, when making a will with witnesses, anyone can be a witness to the making of a will, except for the following persons: The heirs by will or by law of the testator. Persons with property rights and obligations related to the content of the will. Minors, persons without civil act capacity, persons with difficulties in cognition and controlling behavior.

Statute of Limitations for Inheritance

The statute of limitations for heirs to request the division of the estate is 30 years for real estate and 10 years for personal property, from the time of opening the inheritance. After this period, the estate belongs to the heir who is managing it.

In the absence of an heir managing the estate, the estate is resolved as follows:

• The estate belongs to the person in possession according to the provisions of Article 236 of the Civil Code.
• The estate belongs to the State if there is no person in possession as stipulated in point a, clause 1, Article 623 of the Civil Code.

The statute of limitations for an heir to confirm their right of inheritance or to contest the right of inheritance of another is 10 years, from the time of opening the inheritance.

The statute of limitations for heirs to fulfill the obligations related to the property left by the deceased is 03 years, from the time of opening the inheritance.