Currently, many foreigners come to Vietnam to live and many Vietnamese people go abroad to reside and work. During their lifetime, they might leave assets in different territories. This leads to the conflict of laws regarding Vietnamese and foreign elements in the inheritance division when they pass away. When disputes on property arise, the conflict makes it difficult for involved parties to resolve problems. In this article, LSX legal firm would like to give you information on: “Dispute on inheritance property with foreign elements in Vietnam”
- Civil Code 2015
- Law on Land 2013
- Joint Circular 12/2016/TTLT-BTP-BNG-TANDTC
Inheritance relations involving foreign elements in Vietnam
Clause 2, Article 663 of the Civil Code 2015 provides for civil relations involving foreign elements as follows:
Civil relation involving a foreign element means any of the following civil relations:
a) There is at least one of the participating parties is a foreign natural person or juridical person;
b) The participating parties are Vietnamese natural persons or juridical persons but the basis for the establishment, modification or termination of such relation arose in a foreign country;
c) The participating parties are Vietnamese natural persons or juridical persons but the subject matter of such civil relation is located in a foreign country.
So, inheritance relations with foreign elements are regulated by private international law. Accordingly, inheritance relations with foreign elements include:
- At least one of the parties to the inheritance relationship is a foreign individual or organization. That is, the person who leaves the inheritance or the heir is a foreign individual or organization.
- The object of the inheritance relationship is the estate located in a foreign country.
- The legal event giving rise to, change, or terminate the inheritance relationship occurred in a foreign country.
Inheritance at law
The 2015 Civil Code regulates inheritance relations involving foreign elements with conflicting provisions.
Clause 1, Article 680 of the 2015 Civil Code stipulates:
Article 680. Inheritance1. Inheritance must comply with the law of the country of which the person who bequeathed the assets held nationality prior to his or her death.
Thus, no matter which country a Vietnamese citizen dies in, the agency will apply Vietnamese law to divide his inheritance. If a foreigner does not have Vietnamese nationality, even if he or she dies in the territory of Vietnam or the inheritance relationship takes place in Vietnam, the law of the country in which he/she has nationality will be applied for inheritance division.
However, for real property such as real estate, Clause 2, Article 680 of the 2015 Civil Code stipulates that
Article 680. Inheritance2. The right to inherit immovable property must comply with the law of the country where such immovable property located.
Thus, the exercise of the inheritance rights of the heirs to the real property must be governed by the laws of the country where the immovable property is located.
Inheritance under wills
Vietnamese law stipulates two issues related to inheritance under wills: capacity to make wills and form of wills (Article 681 of Civil Code 2015)
In terms of the capacity to make wills:
Article 681. Wills1. The capacity to create a will, and to alter or rescind a will, must comply with the law of the country of which the testator is a citizen.
Thus, Vietnamese law applies the principle of Nationality Law (lex nationalis) of the testator to determine the capacity to make, change or cancel a will.
In terms of the form of the will:
Article 681. Wills2. The form of a will must comply with the law of the country in the place where the will is created. The form of a will shall be also recognized in Vietnam if it complies with the laws of any of the following countries:
a) The country in which the testator resides at the time when the will is created or the testator dies;
b) The country of which the testator holds nationality at the time when the will is created or the testator dies;
c) The country where the inheritance being immovable property is located.
Law applicable to settle disputes on inheritance property involving foreign elements
Clause 1, Article 680 of the 2015 Civil Code stipulates that inheritance must comply with the law of the country in which the person who bequeathed the assets held nationality prior to his or her death.
Therefore, in inheritance disputes, regardless of whether the estate is movable or immovable, Vietnamese authority applies the principle of nationality law (lex nationalis) of the person leaving the estate to settle them.
That means the authority will apply the substantive law (referring to rights and obligations) of the country in which the person who bequeathed the assets held nationality to settle the dispute under Vietnamese procedural law (Civil Procedure Code 2015).
Competence agency to settle the disputes on inheritance property involving foreign elements in Vietnam
Under the Civil Procedure Code of Vietnam:
Article 37. Jurisdiction of People’s Courts of provinces1. People’s Courts of provinces shall have the jurisdiction to settle according to first-instance procedures the following disputes:
a) Civil, marriage- and family-related, business, trade, or labor disputes prescribed in Articles 26, 28, 30, and 32 of this Code, except for disputes falling under the jurisdiction of the district-level people’s Courts as provided for in Clause 1 and Clause 4 Article 35 of this Code;
Article 26. Civil disputes falling under the court’s jurisdiction…
5. Disputes over property inheritance.
On the other hand, disputes over property inheritance, which involve parties or properties in foreign countries may demand judicially entrusted to representative agencies of the Socialist Republic of Vietnam overseas or to foreign courts/competent agencies.
Article 10, Joint Circular 12/2016/TTLT-BTP-BNG-TANDTC provides for the competence to request judicial entrustment of Vietnam with:
- Supreme People’s Court.
- Collegial People’s Court.
- Provincial People’s Courts.
In summary of the above provisions, the People’s Courts of provinces have the authority to settle disputes on inheritance division involving foreign elements.
Remarkable cases regarding housing inheritance
- In case a foreign organization does not operate in Vietnam, or a foreign individual is not allowed to enter Vietnam but inherits a house in Vietnam, then they are not allowed to own the house in Vietnam but must authorize other individuals and organizations residing and operating in Vietnam to sell or donate that house.
- In case there are both people eligible to own houses in Vietnam and people who are not eligible to own houses in Vietnam, the heirs must agree on the division of property in one of the following cases:
- The parties agree to request the competent authority to issue a certificate of that house to the person eligible to own houses in Vietnam.
- The parties agree to donate or sell this house to subjects eligible to own houses in Vietnam to enjoy the value.
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In this article, we provide information regarding “Dispute on inheritance property with foreign elements in Vietnam”. With qualified solicitors, LSX legal firm has provided efficient legal services to our customers. We guarantee to constantly update and keep our operations as well as services in line with the law. If you have any questions about the law, please get in touch with us via LSX Law firm: +84846175333 or Email: email@example.com
Inheritance by will with foreign elements in Vietnam
Inheritance rights of foreigners in Vietnam
Inheritance process for foreigners in Vietnam
Frequently asked questions
Firstly, having papers on house inheritance prepared in accordance with the civil law of Vietnam
Secondly, having documents to prove the right to designate in accordance with the law of Vietnam.
Thirdly, having written authorization to sell or donate the house made according to the provisions of Vietnam civil law.
The Law on Land 2013 stipulates the right to use residential land in Vietnam of overseas Vietnamese at Point dd, Clause 1, Article 169 and Clause 2, Article 186.
The statute of limitations for the heir to request the division of the estate is 30 years for immovable property, and 10 years for movable property, from the time of opening the inheritance.