DISTRIBUTION OF ESTATES IN ACCORDANCE WITH LAW

When a person passes away, the estate they leave behind will be distributed according to their desires under the will. However, in the fact that the person leaving the estate does not always have a will or a legal will or the estate is eligible for distribution according to the will. In such cases, the estate left by the deceased will be distributed according to the law provisions, the heirs will inherit the estate in accordance with the law.

In this article, DTD will outline the cases of inheritance at law, some provisions on the level of heirs, succeeding heirs and the procedures to make the distribution of inheritance under the Civil Code 2015.

1. What is inheritance at law? When does inheritance at law occur?

Inheritance at law can be understood as Transferring the inheritance of the deceased to the individuals who are alive and based on blood relation, marriage relationship, nurturing relationship or kinship relationship between the property owner upon their death and the recipient of the estate.

According to Article 650 of the Civil Code 2015, many cases of inheritance at law include: (i) There is no will; (ii) The will is unlawful; (iii) All heirs under the will died prior to or at the same time as the testator dying, or the bodies or organizations which are entitled to inherit under the will no longer exist at the time of commencement of the inheritance; (iv) The persons appointed as heirs under the will do not have the right to inherit or disclaimed the right to inherit.

In addition, Inheritance at law shall also apply to the following parts of an estate: (i) Parts of an estate in respect of which no disposition has been made in the will; (ii) Parts of an estate related to an ineffective part of the will; (iii) Parts of an estate related to heirs under the will not having the right to inherit, having disclaimed the right to inherit, or having died prior to or at the same time as the testator dying; and parts of an estate related to bodies or organizations entitled to inherit under the will but no longer existing at the time of commencement of the inheritance.

2. The level of heirs and succeeding heirs

2.1. The level of heirs at law

According to Clause 1, Article 651 of the Civil Code 2015, Heirs at law are categorized in the following order of priority:

(i) The first level of heirs comprises: spouses, biological parents, adoptive parents, offspring and adopted children of the deceased;

(ii) The second level of heirs comprises: grandparents and siblings of the deceased; and biological grandchildren of the deceased;

(iii) The third level of heirs comprises: biological great-grandparents of the deceased, biological uncles and aunts of the deceased and biological nephews and nieces of the deceased.

When dividing inheritance according to law, Heirs at the same level shall be entitled to equal shares of the estate. At the same time, Heirs at a lower level shall be entitled to inherit where there are no heirs at a higher level because such heirs have died, or because they are not entitled to inherit, have been deprived of the right to inherit, or have disclaimed the right to inherit.

2.2. Succeeding heirs

According to Article 652 of the 2015 Civil Code, Succeeding heirs are regulated that: “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.”

Thus, when a child of a testator died prior to or at the same time as the testator, the grandchild of the testator (calling the estate leaver is grandparents) shall inherit that part of the estate which their father or mother would have been entitled to inherit had such father or mother has still been alive; In case the grandchild also dies prior to or at the same time as the testator, the great-grandchild of the testator (calling great-grandparents of the deceased) shall inherit that part of the estate which their father or mother would have been entitled to inherit had such father or mother has still been alive.

3. The procedures of distributing  estate according to the law

When  one of the cases of inheritance at law in Article 650 of the Civil Code 2015 occurs, the client can take the procedures of distributing the estate as follows:

Step 1: Meeting of heirs

According to Article 656 of the Civil Code 2015, 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 such as: (i) Determination of the heirs and the inheritance; (ii) Appoint an estate administrator to determine the rights and obligations of these persons, if the estate leaver is not specified in the will; (iii) How the estate is distributed; ….

Note: All agreements of the heirs must be made in writing such as: Written agreement on the division of inheritance; Written declaration of inheritance; Written refusal to receive an inheritance; ... (hereinafter referred to as “Inheritance Documents”).

Step 2: Notarize the inheritance documents (if necessary)

The legal heirs will appoint a representative to contact the notarial practice organization to notarize the inheritance document if necessary. Documents required for notarization depend on the type of inheritance document that the Client needs to notarize.

Step 3: Carry out the registration and transfer procedures for the estate that is real estate, movable property subject to registration of ownership

After completing the notarization procedure of inheritance documents at a notary practice organization, for estates being assets, ownership and use rights must be registered such as: land, cars, motorbikes, papers, certificate of shares, certificate of capital contribution, the beneficiaries of the estate need to carry out the procedures for registration and transfer of such property.