Resolve inheritance disputes in Vietnam

Inheritance is a relatively common subject of civil disputes. Inheritance disputes typically involve disputes over inherited property and disputes over the performance of obligations arising from the deceased’s estate. Based on our lawyers’ extensive experience in resolving inheritance disputes in Vietnam, Viet An Law Firm has compiled the following information.

Determining the opening of inheritance

The opening of inheritance is the moment when the property owner dies or is declared legally dead by a court. Determining the opening of inheritance is crucial for identifying the deceased’s estate, determining the heirs, the statute of limitations for filing a lawsuit, and the applicable law for resolving inheritance disputes.

Jurisdiction over inheritance disputes in Vietnam

Jurisdiction of the people’s court at the district level

The People’s Court at the district level has jurisdiction to resolve inheritance disputes based on a will under the first-instance procedure (Clause a, Clause 1, Article 35 of the Civil Procedure Code 2015).

Jurisdiction of the people’s court at the provincial level

• To resolve inheritance disputes involving parties or assets located abroad or requiring legal assistance from the representative agency of the Socialist Republic of Vietnam in foreign countries, or from foreign courts or competent authorities (Clause 3, Article 35; Clause a, Clause 1, Article 37 of the Civil Procedure Code 2015).
• To resolve inheritance disputes that fall within the jurisdiction of the People’s Court at the district level but which the People’s Court at the provincial level takes up on its own initiative when it deems necessary or at the request of the People’s Court at the district level (Clause 2, Article 37 of the Civil Procedure Code 2015).

Territorial jurisdiction of the court for inheritance disputes

• The court where the immovable property is located has jurisdiction to resolve disputes over inheritance (Clause c, Clause 1, Article 39 of the Civil Procedure Code 2015).
• In cases where the inherited property is not immovable, the court where the defendant resides or works has jurisdiction, or the plaintiff may choose the court (Clause a, Clause 1, Article 39 of the Civil Procedure Code 2015).

Statute of limitations for inheritance disputes in Vietnam

Article 623 of the Civil Code 2015 stipulates the statute of limitations for resolving inheritance disputes as follows:

• The time limit for an heir to claim a division of the estate is 30 years for immovable property and 10 years for movable property, calculated from the date of the opening of the inheritance. After this period, the estate belongs to the heir who is currently managing the estate. If there is no heir currently managing the estate, the estate shall be dealt with as follows:
• The estate shall belong to the person who is in possession in accordance with Article 236 of this Code;
• The estate shall belong to the State if there is no person in possession as prescribed in point a of this clause.
• The time limit for an heir to request confirmation of their inheritance rights or to reject the inheritance rights of another person is 10 years, calculated from the date of the opening of the inheritance.
• The time limit for requiring an heir to perform obligations related to the deceased’s property is 3 years, calculated from the date of the opening of the inheritance.

Specific determination of the statute of limitations for inheritance disputes

• According to Article 184 of the Civil Procedure Code and Clause 2, Article 149 of the Civil Code 2015, the court shall only apply the provisions on the statute of limitations at the request of one or more parties, provided that such request is made before the court of first instance renders a judgment or decision in the case.
• In cases where the statute of limitations has expired but no party has requested the application of the statute of limitations or has made an inappropriate request, the court shall continue to hear the case.
• In cases where a party requests the application of the statute of limitations in accordance with the law, it is necessary to clarify the opening of inheritance (the starting point of the statute of limitations) and the filing date of the lawsuit to determine whether the statute of limitations has expired or not.
• When determining the statute of limitations for inheritance, it is necessary to note the provisions on the time not counted towards the statute of limitations (in cases of force majeure, objective obstacles), and the provisions on the restart of the statute of limitations in the Civil Code.

To determine the statute of limitations for inheritance disputes, it is necessary to have a thorough understanding of the provisions regarding the statute of limitations in Article 184 of the Code of Civil Procedure, Articles 149 and 623 of the Civil Code 2015, resolution No. 02/2016/NQ-HĐTP of June 30, 2016 of the Judicial Council of the Supreme People’s Court, precedent No. 26/2018/AL of the Judicial Council of the Supreme People’s Court, and references to Part III, Sections 1 and 2 of the resolution on clarifying difficulties No. 01/GĐ-TANDTC dated July 25, 2016 and Part I of Resolution No. 01/GĐ-TANDTC dated January 5, 2018 of the Supreme People’s Court. Accordingly, the limitation period for an heir to claim a share of the inheritance is 30 years for real estate and 10 years for personal property, calculated from the date on which the inheritance is opened. Upon expiration of this period, the inheritance belongs to the heir who is currently managing it.

• For cases where the inheritance was opened before September 10, 1990, the limitation period for filing a lawsuit to claim a share of real estate inheritance shall be governed by the provisions of Article 36 of the inheritance ordinance of 1990 and the guidance in resolution No. 02/HĐTP dated October 19, 1990 of the Judicial Council of the Supreme People’s Court on the application of certain provisions of the Inheritance Ordinance, specifically: The limitation period for filing a lawsuit to claim a share of the inheritance shall be calculated from September 10, 1990.
• For cases where the inheritance was opened from September 10, 1990 to before January 1, 2017 (the effective date of the 2015 Civil Code), the limitation period for filing a lawsuit to claim a share of the inheritance is 30 years for real estate and 10 years for personal property, calculated from the date on which the inheritance is opened.
• In cases where the inheritance was opened before July 1, 1991, and there were no Vietnamese citizens residing overseas involved, and the inherited property was a house, the limitation period shall be determined pursuant to resolution No. 58/1998/NQ-UBTVQH10 dated August 20, 1998 of the National Assembly Standing Committee (resolution No. 58/1998). Accordingly, the period from July 1, 1996 to January 1, 1999 (the effective date of resolution No. 58/1998) shall not be counted towards the limitation period (Clause 2, Article 17 of resolution No. 58/1998).

Resolving inheritance disputes involving land use rights

• When the subject of an inheritance dispute is the right to use land, it is necessary to examine the land title documents along with any accompanying records of land management and assets on the land (if any) to determine who has the right to use the land and the specific area. When reviewing the file, attention must be paid to documents such as evidence of the land’s origin and history of use provided by the disputing parties; minutes of mediation at the commune or ward level; the actual area of land that the parties are currently using; the process of declaring and paying land use tax, and the opinions and viewpoints of the parties during the annual process of using the land. Consideration should be given to whether there was any objection or consent when the other party used the land that they believed did not belong to them. The compatibility of the current state of the disputed land with the detailed land use plan that has been approved should also be considered.
• Judicial practice has shown that many inheritance division cases have been overturned multiple times because, when resolving the case, the court did not carefully consider the origin, the changes over time, and the fluctuations of the inherited property during the implementation of state policies in each period. In some cases, the court did not even consider the assets (which are not part of the inheritance) that exist within the disputed asset or divided the inheritance in a way that is not consistent with the actual situation and the needs of the parties, such as: assets that can be divided in kind but are only handed over to one party for ownership and use when this party is unable to pay the value to the other heirs, while there are other parties who also have a request to be divided in kind or to divide the inheritance equally among the heirs but the use value of the inheritance is different. In cases where the inherited property is a capital contribution in a business, shares, bonds, or intellectual property rights, it is necessary to study the relevant legal provisions to determine the value of the inherited property and the appropriate method of division.
• In cases where the inherited real estate has been transferred by one of the co-heirs to another person, and the other co-heirs are aware of and do not object to such transfer, and the amount received from the transfer has been used to support the livelihood of the co-heirs, and the transferee has been granted a land use right certificate. In such cases, the land use transfer contract must be recognized as legal, and the transferred land area is no longer part of the inheritance to be divided but belongs to the transferee.
• In inheritance disputes, there are parties who are entitled to a portion of the inheritance and have contributed to the management and preservation of the inherited property but do not agree to the division of the inheritance (because they believe that they have been given the property by the deceased or that the limitation period for inheritance claims has expired), and they do not have a specific request to consider their contributions to the management and preservation of the inherited property; if there is a basis for dividing the inheritance among the heirs, the contributions of the heirs to the management and preservation of the property should be considered.
• In cases where the inheritance was opened before July 1, 1991, and there were Vietnamese citizens residing overseas involved, and the inherited property was a house, the limitation period shall be determined pursuant to Resolution No. 1037/2006/NQ-UBTVQH11 dated July 27, 2006 of the National Assembly Standing Committee (resolution No. 1037/2006). Accordingly, the period from July 1, 1996 to September 1, 2006 (the effective date of Resolution No. 1037/2006) shall not be counted towards the limitation period (Clause 2, Article 39 of resolution No. 1037/2006).

Viet An Law’s inheritance dispute resolution services

To ensure a swift and efficient resolution of inheritance disputes, Viet An Law provides comprehensive legal advisory services, including:

Services for resolving testamentary inheritance disputes

• Advising on disputes related to the form and content of a will;
• Advising on disputes regarding the appointment of heirs and disinheritance;
• Advising on disputes regarding the division of the estate among heirs;
• Advising on disputes concerning the division of the estate for donations or worship;
• Advising on disputes regarding the imposition of obligations on heirs;
• Advising on disputes related to the creation of a joint will by a married couple;
• Advising on disputes related to the legal validity of a will.

Services for resolving intestate inheritance disputes

• Advising on disputes in cases of intestate succession;
• Advising on disputes related to the determination of legal heirs;
• Advising on disputes related to collateral inheritance;
• Advising on disputes regarding the inheritance relationship between adopted children and foster parents, and between stepchildren and stepparents;
• Advising on inheritance disputes in cases where spouses are dividing their joint property, are in the process of divorce, or have remarried.

Some special considerations in resolving inheritance disputes

Determining the inheritance, its value, current status, usage, and management

• The inheritance to be divided among the heirs is the remaining portion of the estate after fulfilling the obligations left by the deceased.
• To resolve a dispute over the division of inheritance, it is necessary to clearly identify the inherited assets, their value, and the current state of the disputed property. The actual use of the property and the parties’ requests for division should be considered to ensure a fair distribution.
• The current status, origin, changes, and condition of each type of inheritance should be determined; the efforts of those who maintain and develop the inherited property; the efforts of those who care for the deceased; funeral arrangements, anniversaries, and other matters related to the deceased; who is currently managing the inheritance and how it is being used; and the requests and opinions of the property manager regarding the recognition of efforts in managing the inheritance. To clarify these issues, when conducting research, it is necessary to review documents related to the origin, value, and current status of the property at the time of the inheritance opening and the time of the inheritance claim, such as: written opinions, self-declarations, transcripts of witness statements, certificates of confirmation, evidence, on-site inspection reports, reports on determining the current status of property, measurements of land, location, size, current user, valuation reports, property appraisal reports, etc. For assets that must be registered, it is necessary to determine the legal nature of the assets, consider their origin, the transfer of assets over time, and the state’s policy on reforming this type of asset to propose appropriate solutions. Additionally, it is necessary to clarify the efforts of the property manager in maintaining and developing the estate; the efforts of those who care for, conduct funerals, and fulfill responsibilities for the deceased.
• For inherited property that is part of the joint property of a married couple, it is necessary to study and apply the Marriage and Family Law of 1959, 1986, 2000, and 2014; resolution No. 35/2000/NQ-QH10 of June 9, 2000, of the National Assembly; resolutions of the Judicial Council of the Supreme People’s Court; and precedent No. 03/2016 to determine the value of the joint property of the spouses and, from there, determine the inheritance of the deceased.
• Determining the inheritance that is related to the joint property of the household requires examining and reviewing documents and evidence regarding the formation process, usage time, and contributions of the deceased to that joint property to determine the deceased’s share of the inheritance.
• It is necessary to clarify whether the inheritance is the deceased’s separate property or the deceased’s share in the joint property with another person. The deceased’s share in the joint property with another person may be a portion of the property jointly owned by the spouses or a portion of the property jointly owned with another person, depending on the manner and basis for establishing those forms of ownership.

Determining the order of inheritance in inheritance disputes

• Determining the individuals who are entitled to inherit under the law (orders of inheritance), those who are entitled to inherit regardless of the will’s content, those who are not entitled to inherit, those who renounce their inheritance rights, substitute heirs, and other cases such as adopted children, illegitimate children, and children born out of wedlock is crucial. Accurately identifying all entitled heirs is important because in practice, there are cases where the court fails to identify all entitled heirs, thereby affecting the legal rights and interests of these individuals. The order of inheritance is one of the important elements in legal inheritance. Accurately determining the order of inheritance is a crucial basis for dividing the inherited property according to the law.
• In cases where spouses have divided their joint property, are in the process of divorce, or have remarried (as stipulated in Article 655 of the 2015 Civil Code) and in cases where a person has multiple wives or husbands before January 13, 1960 in the North, before March 25, 1977 in the South, or Southern cadres who were repatriated to the North (between 1954 and 1975) married another spouse and subsequent marriages were not annulled by a court judgment or decision with legal effect, the surviving spouse is still considered a first-order heir of the deceased.

Heirs in the same order shall inherit equal shares

• Heirs in subsequent orders shall only inherit if there is no one in the preceding order due to death, lack of entitlement to inheritance, disinheritance, or renunciation of inheritance. If there is no heir in the third order, the inheritance shall belong to the state.
• Note: In inheritance disputes involving heirs residing abroad, if the court has carried out judicial assistance and collected evidence in accordance with the law but is still unable to determine the addresses of these individuals, the plaintiff’s claim shall still be resolved; if the inheritance, order of inheritance, and the deceased are determined not to have left a will, the division of the inheritance shall be resolved for the plaintiff according to the law, and the share of the inheritance of the absent individuals whose addresses cannot be determined shall be temporarily entrusted to the individuals living in the country for later handover to the absent heirs.
• In cases where new heirs appear or an heir’s inheritance rights are revoked, the provisions on the division of inheritance in cases where a new heir appears or an heir’s inheritance rights are revoked shall apply. However, when applying this provision, it is necessary to distinguish between cases where a new heir appears and cases where, during the previous proceedings, the parties and the court failed to include a party to the lawsuit, in order to propose an appropriate solution.

The legality of a will in inheritance disputes

In case of dispute over inheritance division according to will, it is necessary to determine whether the testator made a will before death?

• Is it an oral or written will (without witnesses, with witnesses, notarized or authenticated, made at a notary public office or at a commune, ward, or town People’s Committee, etc) and
• The legality of the will must be determined. A legal will is one that fully complies with the provisions of the law. A will shall not take effect if the property bequeathed to the heir no longer exists at the time the inheritance opens; if the property bequeathed to the heir only remains in part, the part of the will concerning the remaining property shall still take effect. If a part of the will is illegal but does not affect the validity of the remaining parts, only that part shall be invalid.
• If a person leaves multiple wills for the same property, only the last will shall be valid. If the will is in accordance with the law and is accepted, it is necessary to pay attention to cases where inheritance is not dependent on the will.
• If the will is illegal, inheritance according to the will shall not be accepted, and inheritance shall be divided according to the law. In cases where a will is lost or damaged to the extent that the testator’s intent cannot be fully expressed, and there is no evidence to prove the testator’s true intention, it shall be considered that there is no will, and the provisions on legal inheritance shall be applied to divide the inheritance.
• In cases where all heirs under the will die before or at the same time as the testator, the agency or organization that is to inherit under the will no longer exists at the time the inheritance opens; or if the persons designated as heirs under the will are not entitled to inherit or refuse to inherit, the inheritance shall be divided according to the law.

Clearly identify the reasons leading to the inheritance dispute

Determine the mindset, wishes, conditions, and circumstances of the parties to divide the inheritance appropriately.

• Based on a review of the value and current status of the disputed inheritance, the circumstances and requests of the parties, whether or not the parties have agreed on the division of the inheritance, and in cases where the parties have agreed on the division of the inheritance, it is necessary to consider whether such agreement is legal.
• Is it intended to evade third-party property obligations? It is necessary to consider the requests of the parties to inherit in kind or in value (money); consider the conditions and circumstances of the heirs, the actual status of the inheritance, etc., to propose a suitable division of the inheritance.

Considering the renunciation of inheritance in resolving inheritance disputes

When dividing inheritance, it is necessary to consider the will of the heir; does the heir have the right to decide whether to accept or reject the inheritance? This provision is intended to ensure the heir’s right to self-determination in renouncing inheritance, avoiding a coercive approach and limiting the heir’s rights; it is in line with the principles of civil law and ensures the rights and facilitates the heir’s decision to renounce the inheritance. When an heir renounces the inheritance, it is necessary to consider whether the renunciation of the inheritance is intended to avoid fulfilling the renouncer’s obligations to others.

Priority of payment in resolving inheritance disputes

• Property obligations and expenses related to the deceased’s estate shall be paid in accordance with the legal provisions on this matter.
• However, for the costs of preserving the estate, there are actual costs such as packaging costs, construction of sheds, storage, etc., and if the estate manager has to incur costs for repairing and maintaining the estate, they have the right to request the heirs to pay these necessary costs.
• Regarding the efforts in managing the estate, there are currently no specific guidelines. Therefore, when proposing to consider the efforts in managing the estate, it is necessary to base it on whether the estate manager has fulfilled the obligations of managing the estate, the duration of managing the estate, whether or not they have benefited from managing the estate, etc., to make a suitable proposal.

If you encounter any difficulties in resolving inheritance disputes in Vietnam, please contact Viet An Law Firm for the quickest legal advice!