Nội dung toàn văn Ordinance No. 44-LCT/HDNN8 of August 30, 1990, on inheritance.
THE STATE COUNCIL
THE SOCIALIST REPUBLIC OF VIETNAM
Hanoi, August 30, 1990
Citizens' heritage right
Citizens have the right by will to determine or bequeath their own property to legal heirs, and to inherit property under wills or due to operation of law.
Citizens' equal rights to inherit
All citizens regardless of sex shall have equal rights in bequeathing their own property to others by will in conformity with the law, and equal rights in inheriting property.
Time and place to open a will
1. Time for opening a will shall be after the death of a property-owner or the moment decided by the courts that he has been dead.
2. Place for opening a will shall be the latest permanent residence of the person making the bequest. If such permanent residence cannot be determined, it will be the place where all or most of the properties inherited are located.
1. Inherited properties shall comprise private properties of the deceased person, his share in any property jointly owned with other persons, and all the rights pertaining to the properties left by the deceased person.
Property is defined to include any means of livelihood; means of production or lawful income.
2. Where a wife or husband dies, one half of the spouse's common property shall constitute inherited property of the deceased person.
Heirs and beneficiaries
1. A beneficiary under a will may be an individual, the State or any State authority, social organisation or economic organisation.
If a beneficiary under a will is an individual, he shall be a person living at the time the will is opened. A person born after yet being a foetus before the death of the person making a will, is also a beneficiary under the will.
If the beneficiary is a State authority, a social or an economic organisation, such beneficiary must be in existence at the time of opening the will.
2. A legitimate their under the law shall be a person living at the time a will is opened. Any child belonging to, yet born after the death of the person making a bequest shall also be a legitimate their of the deceased under the law.
Inheritance by persons who have died at the same time with the bequeath.
Legitimate heirs of the bequeather who have also died and there is no way to determine which of them died first, shall not be considered as beneficiaries of the inherited property, and in such a case the inheritance rights to the property shall be passed on to the next heirs.
People loosing the right to inherit properties
1. The following people shall be deprived of the right to inherit properties:
a- A person convicted of premeditated offences against the life, health or of serious ill-treatment of the person bequeathing properties;
b- A person seriously neglecting his obligation to care for the person who owned the properties;
c- A person convicted of offences against the life of the other heir with a view to taking over the whole or part of the inherited property to which the other heir is entitled;
d- A person engaging in acts of deception or coercion against the bequeather in making a will, in the act of forging or destroying it with a view to receiving the whole or part of the inherited property contrary to the wish of the bequeather.
2. Those persons referred to in paragraph 1 of this article are however entitled to inherit the bequeath property if the property-owner clearly indicates his intention to that effect.
Obligations of the person inheriting the property The person inheriting the property shall have the responsibility to carry out all the obligations relating to the property bequeathed by a deceased person.
Inherited property reverting to the State
Where there is no legitimate heir, or none of the heirs has the rights to receive the inherited property being deprived of such rights or having waived them, that property shall revert to the State.
INHERITANCE UNDER A WILL
The right to bequeath
Citizens have the right by will to bequeath part or all of their property to one or more persons from within or outside the ranks of legal heirs, to the State, as well as to any State authority, social organisation or economic organisation.
Rights of the person devising a will
1. In devising a will, the bequeather shall have the right:
(a) To name a person as heir;
(b) To specify the property to be handed down to an heir;
(c) To assign an obligation forthwith to an heir;
(d) To deprive an heir of the legal right to inherit the property without giving reasons.
2. The person devising a will also has the right to change, supplement or replace his devised will by another one or declare such will to be null and void.
1. A legitimate will shall be one made by a person of or over 18 years of age, of his own free will, having a sound state of mind when devising it, without being victim of any deception, and the content of which is not in contravention of the law.
A will shall also be considered legitimate if it is made by a person between 16 and 18 years of age with the consent of his parents or legal guardian, of his own free will, having a sound state of mind, not being a victim of deception, and the content of which is not contrary to the law.
2. A will devised by a Vietnamese citizen in a foreign country in accordance with the laws of that country, shall also be considered as legitimate, to the extent that the content of it does not contravene Vietnamese laws.
Form and content of a will
1. It should be clearly stated in a will the date, month and year when it is devised, name and permanent residence of the bequeath, full name of the inheritor, or the authority or organisation entitled to inherit the property, property rights pertaining to the inheriting person or authority or organisation, and location of the property. If the bequeather intends to assign any obligation to an heir, he should clearly specify such obligation and the person assigned.
2. A will shall bear the signature or fingerprints of the person devising it.
Certification by a notary's office or People's Committee
1. The bequeather may request the notary's office or People's Committee of a commune, district, or town to certify the will.
2. The bequeather may write the will himself or have it written by another person, but the bequeather shall sign or fingerprint it in the presence of the responsible person from the notary's officer or the People's Committee of the commune, district or town.
3. Where the bequeather is unable to read or fingerprint a will, he shall request the help of a witness. The witness shall read the will for the bequeather and sign it in the presence of the responsible person from the notary's office or the People's Committee of the commune, district or town.
4. The responsible person in the notary's office or the People's Committee shall certify the will in the presence of the bequeather and the witness.
Certification by Vietnamese diplomatic missions or consulates in other countries
Overseas-Vietnamese citizens may request Vietnamese diplomatic missions or consulates in their countries of residence to certify their wills in accordance with the procedures set out in article 14 of this Ordinance.
Written wills deemed to have validity as certified wills
A written will shall be deemed to have validity as a certified will in the following cases:
1. A will devised by a military person, with confirmation from the head of company level or upward, in cases where the military person cannot request certification from a notary's office or People's Committee.
2. A will devised by a person travelling on a ship or aircraft, with confirmation from the commander of the means of transport.
3. A will devised by a person undergoing treatment at a medical establishment or sanatorium, with confirmation from the person in charge of the establishment concerned.
4. A will by a person engaged in investigation, exploration or reset work in mountainous regions or on islands, with confirmation from the person in charge of the working team concerned.
5. A will by a person held in temporary detention, serving a sentence in prison or in an education centre, with confirmations from the person in charge of the prison or re-education centre.
Written will bearing no certification or confirmation A written will bearing no certification or confirmation, as set out in article 14, 15 and 16 of this Ordinance, shall only be considered as legitimate if it is genuinely made by a person bequeathing his property of his own free will in a sound state of mind, and not being the victim of deception, and the content of which is not contrary to the law.
1. Where a person's life is in such danger that he cannot devise a written will, he may make an oral will.
2. Such an oral will shall be deemed as legitimate if it is genuinely made by the person bequeathing his property of his own free will, in a sound state of mind, and not being the victim of deception, and the content of which is not in contravention of the law.
3. After three months from the date the oral will is made, if the person is still alive and in a sound state of mind, the oral will shall be without validity.
Persons not entitled to certify or confirm a will or to act as witnesses to the certification of a will
1. A legitimate heir or beneficiary under a will shall have no right to certify or confirm such a will devised by the bequeather.
2. Persons under 16 years of age, and those of a sound state of mind, shall not be allowed to act as witnesses to the certification of a will.
Persons entitled to inherited property irrespective of the contents of a will
The following categories of persons are entitled to inherit the bequeathed property when it is divided, at least to the amount equal to two-third of the share of other legitimate heirs, even if they are not named in the will by the bequeather, or are given less than two-third of the share given to other heirs, except when they are barred by the law in accordance with paragraph 1 of article 7 of this Ordinance:
(a) The father, mother, wife, husband, or mature children incapable of work and in poverty;
(b) Adolescent child.
Heritage property used for worship
Inherited property used for purposes of worship shall be regarded as not divided up. If the worship is no longer carried out in accordance with the will, the heirs to the bequest shall have the right to inherit that property. Where they die, the property shall belong to the next legitimate heirs as provided for in article 25 and 26 of this Ordinance.
Alteration, addition to and replacement of a will
1. Where the content of a will is altered by the bequeather, the unchanged part of the will shall remain valid.
2. Where an additional will has been devised by the bequeather, the original and the additional wills shall both be valid.
3. Where a new will has been devised by the bequeather to replace the existing will, the former shall be considered as invalid.
Validity of a will
1. A will shall be considered as valid from the time of its opening.
Where a will is devised jointly by several persons and one of these dies, the will shall be partially valid with regard to the property belonging to the person that has died.
2. The validity of a will shall be void if the beneficiary under the will dies before the bequeather or if the beneficiary, authority or organisation no longer exists at the time the will is opened.
Where there are several beneficiaries, under a will and one of the dies before the bequeather or the beneficiary, authority or organisation so named no longer exists at the time a will is opened, only that part of the will that concerns those beneficiaries shall become invalid.
3. A will shall not be valid if the bequeathed property or rights pertaining to that property no longer exist at the time it is opened.
If only part of the property or of the rights pertaining to that property remain in existence the will shall be considered valid in regard to the remaining part of the above-said property or rights.
4. If a will contains parts that are incompatible with the law, only such parts are considered invalid.
INHERITANCE DUE TO OPERATION OF THE LAW
Cases of inheritance due to operation of the law.
1. An heir at law shall be entitled to inherit property in the following cases:
(a) In the absence of a will;
(b) There is a will incompatible with the law;
(c) The beneficiary under a will dies before the bequesther, or in the case of an authority or organisation, such beneficiary no longer exists at the time the will is opened;
(d) Persons listed as beneficiaries under a will have no right to inherit the property or waive such right.
2. The following are also included in the bequeathed properties:
(a) Any property owned by the bequeather which is left unspecified in his will;
(b) Any property related to the invalid part of a will;
(c) Any property related to a beneficiary under a will who has no right to inherit or has waived such right or has died before the bequeather and/or where an authority or organisation, has no longer existed at the time the will is opened.
Heirs at law
1. Heirs at law include:
(a) In the first rank: the wife, husband, father, mother, adoptive father, adoptive mother, child and adopted child of the deceased person.
(b) In the second rank: the paternal grandfather, grandmother, maternal grandfather, grandmother, brother, and sister of the deceased person.
(c) In the third rank: the paternal great grandparents, maternal great grandparents of the deceased person; the paternal uncles and aunts, maternal uncles and aunts, nephews and nieces of the deceased person.
2. Heirs in the same category receive equal shares of the inherited property.
3. Where there is no heir of the first rank, or these heirs have no right to inherit the property or have waived that right, heirs in the second rank shall inherit the property.
4. Where there is no heir in the first or second categories, or the heirs in those categories have no right to inherit or have waived that right, heirs in the third category shall inherit the property.
Heirs by substitution
Where a heir being son or daughter of the bequeather has died, his or her children shall receive instead the share of the inherited property that he or she is entitled to; if heir children have also died before the bequeather, their grandchildren shall be entitled to that share of the property.
Inheritance between an adopted child and his/her adoptive father or mother as compared to natural father or mother.
An adopted child and his/her adoptive father or mother may inherit each other's property and shall be legitimate inheritors as set out in article 25 and 26 of this Ordinance.
Inheritance between a step-child and her/his step-mother or father
A step-child and his/her step-mother or step-father may inherit each other's property if they are linked by guardianship or custodianship; In addition, they shall be considered as legitimate heirs as set out in article 25 and 26 of this Ordinance.
Inheritance in the case of a couple having divided up their common property, applying for a divorce, or having married other persons.
1. A couple who had divided up their common property in accordance with article 18 of the Law on Marriage and the Family and subsequently one person died, the surviving partner may still inherit the property of the deceased.
2. A couple who have asked for a divorce and have not yet obtained a court decision, or the court decision has not taken effect, and one of the spouses dies, the surviving person may still inherit the property of the deceased.
3. A widow or widower who has remarried is still entitled to inherit the property of the deceased husband or wife.
RIGHTS AND OBLIGATIONS OF THE INHERITORS
The starting point of rights and obligations
Legitimate ownership over the bequeathed property by the heirs shall come into effect from the moment a will is opened, and from then on heirs shall assume all the rights and obligations regarding the property bequeathed by the deceased.
Waiver of the right to inherit
1. An heir may waive the right to inherit, except where such refusal is aimed at evading the fulfilment of his obligations regarding the property. The heir may give up his right in favour of
2. The period allowed for waiving the right to inherit shall be six months from the date a heir is notified of the opening of a will.
3. The waiver shall notify his decision to other heirs, and to the People's Committee or Notary's Office of the place where the will is opened.
Fulfilment of obligations regarding the property bequeathed by a deceased person
1. The heirs shall fulfil all obligations relating to the bequeathed property which is not yet divided up.
2. If the bequeathed property has been divided up, each heir shall fulfil the obligations relating to the proportion to which he/she is entitled.
3. If the State or a State authority, a social or an economic organisation becomes a beneficiary under a will, it shall fulfil the obligations relating to the bequeathed property in the same manner as an individual heir.
MAINTENANCE, COST SHARING, DISTRIBUTION OF BEQUEATHED PROPERTY
1. The heirs shall decide on the assignment of a person taking care of the bequeathed property.
2. The person taking care of the bequeathed property shall not be allowed to sell, give, exchange, or mortgage that property, except with the agreement of all heirs.
3. Where legitimate heirs cannot be identified or it is unoccupied property, the bequeathed property shall be administered by the State.
Subtraction of costs incurred in connection with the property before dividing it up.
Before dividing up the inherited property, all the expenses allowances, subsidies, debts or other costs must be subtracted from the inherited property; these will be settled according to the following order:
1. Funeral expenses for the deceased;
2. Money provided as subsistence for the deceased;
3. Subsidies to be paid to the deceased's dependants;
4. Work payments;
5. Compensation for damage;
8. Debts to the State;
9. Debts owed to other individuals or legal entities;
10. Cost of maintenance of the property and other expenses.
Distribution of property
1. Where legitimate heirs at law cannot agree on dividing up the bequeathed property, heirs in the same rank shall receive equal shares of the inherited property.
An equal share of the property shall be set aside for an unborn heir of the same rank during distribution of the bequeathed property.
If he is not born alive, the other heirs are then entitled to that share.
2. An heir shall have the right to receive his share in kind. Where the inherited property cannot be divided up in equal part, the person receiving an object of higher value may reimburse other person(s) in cash for receiving an object of lower value.
3. Those properties which are not accepted by any heir shall be put on sale; the proceeds shall then be divided up in cash.
4. Where the bequeather did not specify in his will as to whom his property should be allocated, the division of his property shall be carried out in accordance with the provisions of paragraphs 1, 2 and 3 of this article.
Time limits on legal action regarding inheritance
1. Within a period of ten years from the opening time of a will an heir shall have the right to initiate legal action requesting the dividing up of the inherited property, confirming his right to inherit or reject another person's right of inheritance.
2. Within a three-year period from the moment a will is opened, other individuals, authorities or organisations shall have the right to initiate legal action requesting the heirs to fulfil their obligations relating to the bequeathed property and to settle accounts incurred in connection with the inherited property.
3. Where there are avoidable reasons preventing the initiation of the legal action in due time as set out in paragraphs 1 and 2 of this article, the delay caused by such reasons shall not be taken into the time limits for proceedings.
4. With regard to a will opened before the promulgation of this Ordinance, the period set out in paragraphs 1 and 2 this article shall be taken as starting from the date this Ordinance is promulgated.
Foreigners' rights to inheritance
The State of the Socialist Republic of Vietnam recognises and safeguards the foreigners' rights to inherit property located on the territory of Vietnam in accordance with the statute on foreigners in Vietnam and with international conventions signed or recognised by Vietnam.
All prior provisions in conflict with this Ordinance shall be repealed.
FOR THE STATE COUNCIL OF THE SOCIALIST REPUBLIC OF VIETNAM PRESIDENT