In the process of inheritance division with foreign elements of land inheritance, it sometimes leads to conflicts between those with rights and obligations. Accordingly, the types of inheritance disputes with foreign elements in the field of land also have many common forms. So about the matter “Inheritance by will with foreign elements in Vietnam ” Let’s find out with LSX in the article below.
- Civil Code 2015
- Land Law 2013
- Law on Notarization 2014
- Decree 29/2015/ND-CP
What is inheritance with foreign elements?
Inheritance according to the provisions of the Civil Code is the transfer of property from the deceased to the living person. Inheritance according to a will is the transfer of property of the deceased to the living according to the will of the deceased.
Foreign factors: According to the provisions of the 2015 Civil Code, civil relations involving foreign elements are one of the relations in the following cases:
• Among the participating parties, at least one party is a foreign individual or legal entity;
• The participating parties are all Vietnamese citizens, legal entities of Vietnamese nationality, but the establishment, change, performance or termination of such relationship occurs in a foreign country;
• The parties involved are all Vietnamese citizens, Vietnamese residing abroad but the subject matter of that civil relationship is abroad.
Inheritance with foreign elements: It can be understood that an inheritance relationship has at least one of the participating parties being a foreigner; the subject matter of the inheritance relationship such as property, property rights, civil obligations in a foreign country, or the event giving rise to the inheritance occurring in a foreign country.
What inheritances are allowed to be inherited under Vietnamese law?
Pursuant to Clause 1, Article 680 of the 2015 Civil Code stipulates that the inheritance shall be determined according to the law provisions of the country of which the person leaving the heir has the nationality right before his/her death. According to this provision, it can be understood that the law of Vietnam is based on where the person’s death takes place, the law of that country will be applied to divide the inheritance.
According to the provisions of the Civil Code 2015, assets are objects, money and valuable papers. There are two types of property, namely movable and immovable property, inheritance of movable property and immovable property with foreign elements.
Inheritance of movable property with foreign elements:
According to the provisions of Clause 1, Article 680, inheritance is determined according to the law of the country of which the person leaving the heir has the nationality immediately before his death, except for the provisions of Clause 2 of this Article. Thus, for inheritance of movable estate, according to the law of nationality, that is to say, the law applicable to inheritance relations involving foreign elements in which the inheritance is movable is the law of the country,which the person leaving the estate had a nationality before his death. Thus, a citizen of Vietnamese nationality who dies in any country will also apply Vietnamese law to divide the inheritance of movable property.
However, if a foreign citizen leaving an movable estate is present in the territory of Vietnam and the inheritance relationship occurs in Vietnam, the law of Vietnam will not be applied but the law of the foreign country must be applied, that has the nationality to divide the inheritance as movable property.
Inheritance of real estate with foreign elements:
According to the provisions of the Civil Code 2015, real estate includes:
• Houses, construction works attached to land such as: auxiliary works, toilets, wells, water tanks..
• Other assets attached to land, residential buildings, such as air conditioners attached to houses, Trees attached to land…
• Other property as prescribed by law.
Pursuant to Clause 2, Article 680, Inheritance to immovable property shall be determined according to the law of the country where such immovable property is located. According to Vietnamese law, real estate is a special type of property that must be granted a certificate of land use right or property attached to land. Land is related to national sovereignty, so it is not allowed to transfer land to foreign nationals
Article 186 of the 2013 Land Law, foreigners who are eligible to buy houses in Vietnam will be entitled to inherit houses within the time limit prescribed by the State. Having the rights to buy, sell, donate and inherit within the statutory period.
In case a foreigner is not eligible to buy a house in Vietnam, he/she is only entitled to the value of that real estate, and of course, there is no right to inherit, buy, sell or donate the real estate.
Inheritance by will with foreign elements in Vietnam
According to the provisions of Article 680 of the 2015 Civil Code on inheritance by law involving foreign elements, the following provisions are made:
• Inheritance at law must comply with the law of the country of which the person leaving the heir had the nationality before his death.
• Inheritance to immovable property is subject to the laws of the country where the immovable property is located.
Procedures for declaration of inheritance with foreign elements are still carried out in the usual order, specified in the Law on Notary 2014 and Decree 29/2015/ND-CP Decree detailing and guiding the implementation of a number of articles of the Law on Notary.
The agreement on the division of the estate and the declaration of the inheritance must be publicly posted at the head office of the commune-level People’s Committee, the former place of residence of the estate leaver; in the absence of place of permanent residence, it shall be posted up at the commune-level People’s Committee of the place of temporary residence of such person.
If both of these places cannot be identified, it shall be posted at the commune-level People’s Committee where the real estate is located. After 15 days of listing, if there is no complaint or denunciation, the notary agency will certify the written agreement on division of inheritance under Article 57 of the Law on Notarization 2014.
In case of inheritance involving foreign elements, if the overseas heir does not have the conditions to return to Vietnam for a long time to carry out the procedures for declaring the inheritance, he/she can flexibly choose one of the following two ways:
• The first way:
One of the co-heirs goes to a notary public to request notation and to provide in advance a set of documents related to the declaration of inheritance. Persons living abroad can send documents (depending on documents), papers proving the relationship with the estate leavers …) return home first for relatives in Vietnam to carry out procedures for notarization (copies can be sent).
After completing the dossier, the notary organization conducts notarization procedures as usual. After 30 days of posting the notice, if there is no complaint or denunciation, the inheritance declaration shall be carried out. At this time, people who are abroad can return to their home country and join the co-heirs to a notary public to make and sign a document declaring the inheritance. When making and signing documents in the presence of a notary, he/she shall present the originals of his/her identity papers and papers related to the declaration of his/her inheritance.
• Second way:
In case a person living abroad cannot return home, he/she may authorize a domestic person to carry out the procedures for declaring the estate on his/her behalf in accordance with law.
The authorization is made at the diplomatic mission of the Socialist Republic of Vietnam in the country where the person is living, such as the Embassy or Consulate.
The power of attorney must clearly state the following information: information about the principal and the authorized person; authorization basis (information about inheritance, inherited property, etc.). At the same time, clearly state the content of the authorization such as: “The authorized person is authorized to act on my behalf and on my behalf to carry out the procedures for declaring the inheritance according to the provisions of law.”
After the power of attorney is sent back from the person who is abroad, the authorized person can, together with other co-heirs of the person leaving the estate, go to the notary public to request the procedure for declaring the estate inheritance according to the provisions of law. The authorized person only performs the work within the authorized scope.
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Frequently asked questions
In case the heir is a Vietnamese residing abroad or a foreigner who is not eligible to buy a house attached to residential land in Vietnam, upon receiving the value of the inheritance, he/she has the right to transfer that amount. abroad in accordance with the Ordinance on Foreign Exchange. Specifically, Vietnamese citizens representing their heirs abroad may contact a bank authorized to conduct foreign exchange operations to carry out procedures for transferring and bringing foreign currency (obtained by inheritance) abroad.
According to the provisions of Clause 4, Article 4 of the Law on Personal Income Tax, income from inheritance as immovable property between natural parents and biological children is not subject to tax. According to the provisions of Clause 5, Article 3 of the Law on Income Tax Personal income, income from the transfer of real estate is taxable income.
However, for income derived from the transfer of inherited property, the transferer will not be subject to personal income tax in the following cases:
• Income from real estate transfer between husband and wife; biological father, natural mother with natural child; adoptive father, adoptive mother with adopted child; father-in-law, mother-in-law with daughter-in-law; father-in-law, mother-in-law with son-in-law; grandfather, grandmother with grandson; grandparents, grandmothers with grand children; brothers, sisters, siblings together;
• Incomes from the transfer of houses, residential land use rights and assets attached to residential land of individuals in case the individual has only one house or residential land.
According to the new provisions of the 2014 Housing Law, from July 1, 2015, overseas Vietnamese and foreigners can not only inherit the value of the estate, but also have their names written on it. certification. This is an open regulation, creating favorable conditions for Vietnamese heirs residing abroad and foreigners to be able to legalize the right to use and own land in their own name – House. Specifically, the Housing Law 2014 stipulates:
i. For overseas Vietnamese, it is through the form of buying, renting and buying commercial houses of real estate enterprises and cooperatives (hereinafter referred to as real estate enterprises); buy, receive as a gift, receive, exchange or inherit houses of households and individuals; receive the transfer of residential land use rights in the commercial housing construction investment project which is allowed to sell the ground to organize the construction of houses by themselves in accordance with the law (clause 2, article 8);
ii. Foreign organizations and individuals are entitled to own houses in the cases of buying, renting, receiving, gifting or inheriting commercial houses including apartments and separate houses in construction investment projects, housing, except for areas where national defense and security are ensured according to the Government’s regulations (point b, clause 2, article 160)