Testamentary Inheritance in Relation to the Components of the Estate

their rights to the common property. That ratio is always expressed in specific numerical units. Through that numerical unit, we can see how much of the rights each co-owner has in the common property. For example: 1/2, 1/3, 1/4…

Joint ownership arises when one of the following grounds exists:

- Many people work together to create an asset.

- Contributing money to buy property or to build a project together

- Due to being given or inheriting the same property together When jointly owned property is used for business purposes,

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If production generates profit, that profit will be divided among the co-owners in proportion.

the respective share of each person. If one of the co-owners dies, the inheritance is the share of the property owned by that person in the common property plus the profit divided according to this ratio.

According to the provisions of the 1999 Enterprise Law and the 2005 Enterprise Law, individuals have the right to buy shares of a joint stock company, contribute capital to a limited liability company, and a partnership (except for those who are not allowed to contribute capital according to the provisions of law). When an individual buys shares or contributes capital to a company, the contributed assets are considered assets owned by the company and the capital contributor has the right to own the company according to the capital contribution ratio. In principle, when a shareholder (for a joint stock company) or a member (for a limited liability company and a partnership) dies, their capital contribution to the company naturally becomes an inheritance. For private enterprises and single-member limited liability companies, the owner of a private enterprise and the owner of a single-member limited liability company have the right to leave the assets of the enterprise to the heirs. Because the assets in a private enterprise and a single-member limited liability company belong to the business owner, the business owner has the right to possess, use and dispose of those assets through sale, lease, and the right to inherit them.

business succession to the heirs. However, currently the Enterprise Law 2005 only stipulates the right to inheritance of members of limited liability companies with two or more members and general partners of a partnership. Accordingly, when an individual member of a limited liability company with two or more members dies or is declared dead by the Court, the heir according to the will or by law of that member becomes a member of the company (Article 45 of the Enterprise Law 2005). In case a general partner dies or is declared dead by the Court, the heir of the member shall receive the value of the assets in the company after deducting the debt for which that member is responsible. The heir can become a general partner if approved by the Board of Members (Article 134 of the Enterprise Law 2005).

2.3. INHERITANCE BY WILL IN RELATION TO THE COMPONENTS OF THE INHERITANCE

2.3.1. Inheritance by will in relation to inheritance by law

Inheritance by will as well as inheritance by law are both included in the inheritance of the deceased. However, if inheritance by will is a part or all of the inheritance that the testator decides in a legally valid will to be divided among the heirs according to the will, then inheritance by law is the part of the inheritance that is decided according to the provisions of law to be divided among the heirs according to the law. In other words, inheritance by will is the part of the inheritance that is decided according to the will of the testator, while inheritance by law is the part of the inheritance that is decided based on the general wishes of the testator. In case the testator has not expressed his/her will, or that will is not in accordance with the law or social ethics, the law will assume the will of the testator regarding the transfer of his/her inheritance to the heirs.

Therefore, for inheritance by law, the scope of beneficiaries and the portion that each person receives can always be determined in advance according to a unified model for each case. Beneficiaries of inheritance by law are always individuals who have a marital, blood, or foster relationship with the person leaving the inheritance; in the same line of inheritance, legal heirs receive equal portions of the inheritance. On the contrary, for inheritance by will, who are the beneficiaries of the inheritance by will? How much inheritance do they receive? These are things that cannot be determined in advance for all cases. Beneficiaries of inheritance by will can be people who have a marital, blood, or foster relationship with the person leaving the inheritance, or can be any individual or organization. The portion of inheritance they receive can be equal or unequal, depending entirely on the decision of the testator.

To determine the inheritance according to the will, as well as the inheritance according to the law, first of all, the property obligations left by the deceased and the expenses related to the inheritance from the deceased's estate must be paid in the order of priority of payment prescribed in Article 683 of the Civil Code. If after payment, there is still an inheritance to be divided among the heirs according to the will - that part of the inheritance is called the inheritance according to the will; if this part of the inheritance is divided according to the law - this part of the inheritance is called the inheritance according to the law.

As part of the deceased's estate, there is a close relationship between the inheritance according to the will and the inheritance according to the law. This relationship is shown in the following cases:

First: The person leaving the inheritance did not make a will.

The determination of whether or not there is an inheritance according to a will depends first of all on whether the testator made a will or not. If the testator did not make a will, then the entire inheritance is divided.

Inheritance is also inheritance by law, there is no inheritance by will.

Second: The person leaving the inheritance has made a will. That will is legal and has full effect. In that case, the following cases may occur:

- The assumption that there are no heirs does not depend on the content of the will.

wish

At this time, the testator has full authority to dispose of his property.

are not subject to any legal restrictions. They have full authority to decide who to leave the inheritance to? How much to leave? To dispose of part or all of the inheritance in the will... In the case that they dispose of all of their property in the will to the heirs, the inheritance according to the will is equal to the inheritance, at this time we no longer have inheritance according to the law.

If the testator decides to give a portion of the estate in the will to the heir, in this case, the will has the effect of dividing the deceased's estate into two parts, one part is transferred according to the will of the testator - the inheritance according to the will, the remaining part is transferred according to the provisions of the law - the inheritance according to the law. Depending on the will of the testator, the inheritance according to the will accounts for a larger or smaller proportion compared to the inheritance according to the law. If the testator decides to give a larger portion of the inheritance according to the will, the portion of the inheritance that is transferred according to the provisions of the law will be smaller and vice versa.

The relationship between testamentary inheritance and legal inheritance is modeled as follows:

Inheritance by will

Inheritance

legal

Inheritance by will

(The circular convention is the entire estate left by the deceased after paying off all property obligations and inheritance-related expenses according to Article 683. The first part is the legal inheritance (with a dash) and the second part is the testamentary inheritance. If there is no will, the entire inheritance will be the legal inheritance. If the first part (legal inheritance) is larger, the second part (testamentary inheritance) will be narrower).

- Assuming there is an heir regardless of the content of the will

Heirs regardless of the content of the will are those who are always entitled to a minimum portion of the inheritance equal to 2/3 of the portion of a legal heir, even in cases where the testator does not give them the inheritance or gives them less than 2/3 of the portion of a legal heir. This provision of the law is a measure to ensure that heirs regardless of the content of the will always receive a portion of the estate to continue to maintain and stabilize their lives after the death of the testator.

Therefore, in the case where the testator disposes of all his assets in the will but does not give inheritance to the heirs who are not dependent on the content of the will, or even if he does give it, it is less than 2/3 of the share of a legal heir, at this time - regardless of the testator's will - the rights of the heirs who are not dependent on the content of the will are still guaranteed by law. They will

still receive a minimum portion of the inheritance equal to 2/3 of the portion of a legal heir. The remaining portion of the inheritance will be taken from the inheritance according to the will. The inheritance according to the will is only the remaining portion of the inheritance after deducting the portion of the inheritance for the heirs regardless of the content of the will.

In the case where the testator only disposes of a part of his property in the will, the remaining part is divided according to the law. Also assuming that the testator gives the heirs who are not dependent on the content of the will less than 2/3 of the share of a legal heir (if the testator does not give inheritance, the calculation will be the same as in the above case). At this time, the heir who is not dependent on the content of the will is entitled to two parts of the inheritance: one part of the inheritance according to the will and one part of the inheritance according to the law. In this case, the inheritance according to the will will only be reduced if after adding the inheritance that the heir who is not dependent on the content of the will is entitled to according to the will with the inheritance that this person is entitled to according to the law, if it is still not enough 2/3 of the share of a legal heir, the missing part will be taken from the inheritance according to the will. The inheritance according to the will is the remaining part after deducting the portion for the heirs regardless of the content of the will. If, after adding, the portion of the inheritance that the heirs regardless of the content of the will receive is greater than or equal to 2/3 of the portion of a legal heir, then the inheritance according to the will will be kept intact according to the original decision of the testator without being reduced.

Thus, unlike the case of paying off property obligations left by the deceased, both the inheritance according to the will and the inheritance according to the law must be used to pay; in the case of ensuring the rights of the heirs regardless of the content of the will, only the inheritance according to the will is reduced, while the inheritance according to the law is always kept intact and not reduced.

Third: the testator made a will, but the will is invalid in whole or in part.

A will is invalid in the following cases:

- The will is invalid due to illegality: The will does not fully satisfy the conditions prescribed by law in Article 652 of the Civil Code (The testator must have legal capacity; The testator must be voluntary; The content of the will is not contrary to the law or social ethics; The form of the will is not contrary to the provisions of law).

- The will is legal but invalid for other reasons.

Specifically:

+ The testamentary heir dies before or at the same time as the heir.

testator. The agency or organization designated as heir is no longer in existence at the time of inheritance opening.

+ The heir refuses the right to receive the inheritance according to the will.

+ The heir according to the will is not entitled to inherit according to Clause 1, Article 643 of the 2005 Civil Code.

In these cases, the inheritance related to the invalid part of the will will be divided among the legal heirs of the testator. If the will is not valid in its entirety (for example: the testator does not have civil capacity, the will was made under duress or fraud, etc.), then the entire inheritance determined by the will will be divided according to the law (divided among the legal heirs of the testator). If only a part of the will is invalid, then only the inheritance related to the invalid part of the will will be divided according to the provisions of the law. In this case, we see a transformation from inheritance according to the will to inheritance according to the law.

For example: Mr. A has an inheritance worth 200 million VND. At the time of inheritance opening, Mr. A has 3 legal heirs: Mrs. M - Mr. A's wife, and two

The children are N and K. Before his death, Mr. A made a will to give Mrs. M 60 million VND. The two children N and K each received 50 million VND. Mr. A left 20 million VND to Ms. H - a friend of his to receive. Mr. A did not decide on the remaining 20 million VND in the will. At the time of inheritance, Ms. H declared her refusal to receive the inheritance.

Due to Ms. H's refusal to inherit, the legal inheritance will increase: 20 million VND (the inheritance not determined in the will) + 20 million (the inheritance Ms. H refuses to inherit) = 40 million VND. On the contrary, the inheritance according to the will - due to Ms. H's refusal to inherit - will decrease: 180 million - 20 million = 160 million.

From the above example, we can draw the following conclusion: both are acts of refusing to receive inheritance, but if the heir refuses to receive inheritance according to the will, it will change the inheritance according to the will (decrease) but will not change the shares of the heirs according to the will (the shares of each heir according to the will remain the same according to the decision of the testator). On the contrary, if the heir refuses to receive inheritance according to the law, the inheritance according to the law remains the same, but the shares of each heir according to the law increase.

Returning to the above example: Mr. A did not decide on 20 million VND in his will, so according to the law, this 20 million will be divided equally among Mr. A's 3 heirs, Mrs. M and her two children N and K. Each person will receive: 6.66 million. If N declares to refuse to receive the inheritance according to the law, N's share will be divided between Mrs. M and K. In short, if N refuses to receive the inheritance, the legal inheritance will remain the same at 20 million VND, only Mrs. M and K's share will increase, instead of receiving 6.66 million/person, they will receive 10 million/person.

Through the regulations on inheritance by will and inheritance by law, a question arises: can heirs who have already inherited by will still inherit by law?

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