LEGAL PROVISIONS ON DISTRIBUTION OF PROPERTY BY WILL
The inheritance includes the decedent assets and their share of the common property with others. Inheritance according to a will is the transfer of the estate to the living individuals based on the decisions made by the decedent regarding the distribution of their estate while they were alive. Therefore, when the deceased left legal wills, the inheritance is divided according to the content of the will, except in cases where the heirs are not dependent on the content of the will. So how can a will be legally valid and ensure that the inheritance is distributed according to the wishes and desires of the testator? In this article, DTD will analyze and provide a clearer legal perspective on the distribution of inheritance according to a will.
1. How is the distribution of inheritance carried out?
Based on Article 659 of the Civil Code of 2015:
“1. An estate shall be distributed in accordance with the wishes of the testator. If the will fails to specify the share of each heir, the estate shall be divided equally between the persons named in the will, unless otherwise agreed.
2. Where a will provides for the distribution in kind of an estate, each of the heirs shall be entitled to receive his or her share in kind, plus the benefits and income derived therefrom, or must bear the depreciation in value of such share in kind up to the time when the estate is distributed. If the property which is the subject of a share in kind has been destroyed due to the fault of another person, the heir has the right to demand compensation for damage.”
3. Where a will provides for the distribution of an estate according to certain proportions of the total value of the estate, such proportions shall be calculated on the basis of the value of the estate at the time of distribution.
Accordingly, the distribution of inheritance is carried out under the content of the will. If the content of the will does not specify the portion of the inheritance for each heir, the inheritance will be distributed equally among all the heirs mentioned in the will.
In addition, not only those named in the will, but also according to Article 644 of the Civil Code of 2015, the following persons will still be entitled to inherit (receiving 2/3 of an heir in accordance with law) even if the content of will does not leave any property for them:
Minor children of the testator.
Father, mother, spouse of the testator
Children who are adults but who are incapable of working.
2. How to make a legal will?
To make a legal will, certain requirements regarding the validity and form of the will must be met. According to Article 630 of the Civil Code 2015, a will is considered valid when the testator was of sound mind, clear judgment at the time of making the will, not deceived, threatened, or coerced. The content of the will must not violate any prohibited provisions of the law, is not contravene social ethics, and the form of the will must comply with legal regulations.
Additionally, according to Article 631 of the Civil Code 2015, the content of the wills must ensure the following main contents: (i) The date on which the will is made; (ii) The full name and place of residence of the testator; (iii) information about the beneficiaries of the inheritance; and (iv) The estate to be bequeathed and its location
Furthermore, the will must not be written in abbreviations or symbols. If the will consists of multiple pages, each page must be numbered and bear the signature or fingerprint of the testator. In case of any erasures or corrections in the will, the testator or witnesses to the will must sign beside the erasing and corrected place.
3. Legal effective date of the will
According to Article 643 of the Civil Code 2015: “A will shall become legally effective from the time of commencement of the inheritance”. Referring to Clause 1 of Article 611 of the Civil Code 2015, The time of commencement of an inheritance shall be the time when the person who owns the property passes away. Therefore, the will becomes legally effective from the time of commencement of an inheritance, which is the time of the testator's death. From the time commencement of an inheritance, the heirs have rights and obligations to the property left by the deceased.
