Inheritance is one of the most concerned issues in families. How is the property divided and to whom? This is also the cause of conflicts among family members. In this article, we shall discuss the division of property to succeeding heirs to help you have better awareness of the division of inheritance.
What is inheritance by succeeding heirs?
According to Civil Code 2015, a general principle in the inheritance of property is that an heir must be alive upon commencement of inheritance. However, what if an heir dies before that moment? In fact, there are cases where the heir dies prior to or at the same time as the person that bequests the estate. In this case, the law allows children of that heir to be entitled to the part of estate that their parent is entitled to by operation of law when he/she is alive. This regime is called inheritance by succeeding heirs. In other words, inheritance by succeeding heirs means allowing a lawful alternative heir to inherit the estate in case the lawful heir dies.
Conditions for inheritance by succeeding heirs
Inheritance by succeeding heirs exists under following conditions:
- The succeeding heir must be a child that is eligible for inheritance of the deceased’s estate as prescribed by Civil Code 2015.
- The succeeding heir must be a direct descendant with blood relation with the succeeded heir (child or grandchild in blood).
- The succeeded heir must die prior to or at the same time as the testator: Because if he or she dies after that, there will be an issue when his/her right of inheritance to the deceased’s estate is still recognized. Therefore, when this person dies, his/her children or grandchildren will be entitled to inheritance in accordance with the order of priority of inheritance, but the issue of inheritance by succeeding heirs is not raised. Thus, inheritance by succeeding heirs only exists when the heir of a decease dies at the same time as the decease. This is set out by law to protect the rights and interests of those with direct blood relations with the deceased.
- Inheritance by succeeding heirs is only raised when there are others at the first level of inheritance of the deceased: According to Civil Code 2015, when a decease bequests his/her estate without will, the first level of heirs comprises spouses, biological parents, adoptive parents, offspring and adopted children of the deceased. When none of these is alive, those at second level of heirs will be entitled to the inheritance. Therefore, inheritance by succeeding heirs only exists when at least one of those at first level of heirs of the deceased is alive.
Conditions for inheritance by succeeding heirs
- Children of the testator die prior to or at the same time as the testator (grandchildren become succeeding heirs); if grandchildren die prior to or at the same time (great grandchildren become succeeding heirs). So, the first condition for existence of inheritance by succeeding heirs is the occurrence of an event that parents of children or great grandchildren die prior to or at the same time as the grandparents or great grandparents (mother’s and father’s side).
- Succeeding heirs must be at first level of heirs and their succeeded heirs must be their next level of descendant, i.e. a child succeeds his parents in inheriting grandparent’s estate, not vice versa, parent succeeds their child in inheriting grandparent’s estate.
- They must have direct blood relations (natural children succeed their natural parents).
- A succeeding heir must be alive when the testator dies or is born and alive after the commencement of inheritance, but had been a fetus prior to the death of the testator.
- When they were alive, succeeded heir’s parents must be entitled to the deceased’s estate (if they are rejected of this right, their children and grandchildren shall not be entitled to the succeeding inheritance).
- The succeeding heir is not rejected of his or her right of inheritance under clause 1, Article 644 of Civil Code 2015.
Lines of heirs as prescribed by law
First, grandchildren succeed their parents to inherit their grandparent’s estate.
Those at grandchild level of the testator shall act on behalf of their parents to inherit their grandparent’s estate.
Second, great grandchildren succeed their parents to inherit their great grandparent’s estate.
According to Article 652 of Civil Code 2015, the great-grandchildren of the testator shall inherit that part of the estate which their father or mother would have been entitled to inherit had such father or mother still been alive if the grandchildren also died prior to or at the same time as the testator.
Inheritance by succeeding heirs is not the inheritance by order, but the order of inheritance is the basis to determine the relationship of inheritance by succeeding heirs. Inheritance by succeeding heirs is a legal regime that protects the rights and interests of those most close relatives of the testator, avoiding any situation that estates bequested by grandparents or great-grandparents are divided among others instead of their grandchildren or great-grandchildren. Inheritance by succeeding heirs only exists from inheritance by operation law, but not from inheritance by will. If parents die prior to or at the same time as grandparents or great-grandparents, the will on disposition of part of estate to parents (if any) will be null. That part of estate will be divided by operation of law and grandchildren (great-grandchildren) will be entitled to inheritance by succeeding heirs.
Documents to apply for inheritance by succeeding heirs
Documents to apply for inheritance by succeeding heirs include:
- Declaration for inheritance of estate by the heir:
-
- ID card or passport of each person
- Household registration book
- Marriage certificate, actual certification of marriage or certificate of being single
- Authorization contract, power of attorney (if the transaction is established through a representative);
- Birth certificate, certificate of adoption; judgments, curriculum vitae and other documents proving the relationship between the testator and the heir.
- Death certificate of father or mother
- Legal documents of the testator:
-
- Death certificate of the testator, death notice, or judgment of death
- Marriage certificate, actual certification of marriage or certificate of being single
- Will
- Documents of title proving the right to use and own the property to be bequested:
-
- Certificate of land use right, certificate of house ownership and land use right, issued by the People’s Committee, Certificate of ownership of works on land, other papers on housing; Permits for purchase, sales, and movement of houses – legalized and issued by the People’s Committee of the district and certified by Tax and Cadastrial Department; deed of sales certified by the People’s Committee (if any); receipt of real estate tax (if any)
- Construction permit (if any)
- As-built inspection minutes (if any)
- Drawings prepared by competent authorities or departments, certified by the People’s Committee or Department of Natural Resources and Environment for internal inspection and planning (if any)
- Other property documents (passbook, certificate of deposit, bank acknowledgment of account, car registration certificate, certificate of shares, etc.).
Some frequently asked questions about division of property under inheritance by succeeding heirs:
Upon division of property under inheritance by succeeding heirs, following questions are frequently asked:
Does inheritance by succeeding heirs apply to division of property under will?
- Inheritance by succeeding heirs only applies to inheritance by operation law, but not to inheritance by will.
- Succeeding heirs may only be entitled to the estate if he or she has the right to do so and does not reject that right.
Is my wife eligible to the inheritance by succeeding heirs?
According to the regulations on inheritance by succeeding heirs, only those at the next level of heirs are allowed to succeed those at previous level. Therefore, one’s wife is not eligible to the inheritance by succeeding heirs.
Upon receiving the property subject to inheritance by succeeding heirs, it is required to present in person?
Article 656 of Civil Code 2015 states as follows regarding the meeting of heirs:“1. After being notified of the commencement of an inheritance, or after a will has been announced, the heirs may meet to agree on the following matters:
-
After being notified of the commencement of an inheritance, or after a will has been announced, the heirs may meet to agree on the following matters:
a) If the testator has failed to appoint an administrator of the estate or a distributor of the estate, or has not determined the powers and obligations of such persons, the appointment of such persons and the determination of their powers and obligations, as the case may be;
b) Method of distributing the estate.”
So, an heir is not mandatorily required to present in person as of the distribution of property, provided that he or she has previous agreement upon the distribution, or an agreement on the consent to the distribution with other heirs at the same level.
Is my daughter-in-law eligible to the inheritance by succeeding heirs?
Pursuant to the levels of inheritance by succeeding heirs as prescribed by law, those at the first level of heirs include only natural children that are entitled to the estate. For daughter-in-law or son-in-law, they are not at the first level of heirs and shall not be entitled to the estate bequested by parents.
Is my adopted grandchild eligible to the inheritance by succeeding heirs?
Pursuant to the levels of heirs for inheritance by succeeding heirs as specified in Article 653 of Civil Code 2015, there is the relationship inheritance by succeeding heirs between adopting parents and adopted child. Pursuant to Article 652 of Civil Code 2015, inheritance by succeeding heirs is specified as follows:
Where a child of a testator died prior to or at the same time as the testator, the grandchildren of the testator shall inherit that part of the estate which their father or mother would have been entitled to inherit had such father or mother still been alive. If the grandchildren also died prior to or at the same time as the testator, the great-grandchildren of the testator shall inherit that part of the estate which their father or mother would have been entitled to inherit had such father or mother still been alive.
Pursuant to this clause, when an adopted child dies prior to or at the same time as the adopting parents, the adopted grandchildren will be entitled to the estate bequested by the adopting grandparents to the relevant adopted child.
So, adopted grandchildren is entitled to the inheritance by succeeding heirs and inheritance under will (if any) from estate bequested by adopting grandparents.With this article, I hope you have understand the regulations and conditions for inheritance by succeeding heirs. For more detailed instructions, please contact us: letran@familylawyers.vn
