1. Legality of the will in the above case

According to the provisions of the Civil Code, individuals have the right to make a will to dispose of their property; leave their property to their heirs according to the law; inherit the inheritance according to the will or the law of the deceased.

In which, if the property to be inherited is the land use right, the person leaving the estate next to it must comply with the provisions of the Civil Code on inheritance and must also comply with the provisions of the law on land.

According to the provisions of the Land Law 2013, in case a land user dies and leaves an estate that is immovable property without being granted a Certificate, but inherits, the inheritance shall still be determined but must be based on the following documents: factors such as what kind of documents does the land user have, is there a stable use of the land, is there a dispute, etc. to determine if the land belongs to the inheritance?

“Article 188. Conditions for exercising the rights to exchange, transfer, lease, sublease, inherit, donate or mortgage land use rights; capital contribution with land use rights

1. Land users may exercise the rights to exchange, transfer, lease, sublease, inherit, donate or mortgage land use rights; contribute capital with land use rights when the following conditions are met:

a) Having a Certificate, except for the case specified in Clause 3, Article 186 and the case of receiving an inheritance specified in Clause 1, Article 168 of this Law.

b) Undisputed land;

c) The land use right is not distrained to secure judgment enforcement;

d) During the land use term”.

At Point a, Section 1.3, Part II of the Resolution No. 02/2004 dated August 10, 2004 of the Judicial Council of the Supreme People’s Court, it is stipulated:

“1.3. In case the deceased leaves behind the land use rights but that land does not have one of the papers guided in subsection 1.1 and subsection 1.2 of this Section 1, but has an estate as a house; other architectural objects (such as kitchens, bathrooms, toilets, wells, garages, churches, etc. fruit trees, industrial plants or other perennial plants) associated with the right to use If that land requires inheritance, it is necessary to distinguish the following cases:

a) In case the involved party has a document from the People’s Committee of the competent level certifying that the land use is lawful, but the land use right certificate has not yet been issued, the court shall settle the request for division of the estate. is the property attached to the land use right and the right to use that land”.

Accordingly, land left by the deceased but has not yet been granted a certificate of use right if there are other papers proving the origin of the land or a competent People’s Committee has a document certifying that such land use is lawful. If the land is used stably for a long time without any dispute, the Court still determines this is an inheritance and divides the inheritance according to the order and provisions of law.

2. Forms of inheritance of land use rights

The heirs inherit the land use rights in the form of a will or by law. In the case of inheritance according to the will, the law provides as follows:

Wills include oral wills and written wills. Pursuant to Article 628 of the 2015 Civil Code, a written will includes:

1. A written will without witnesses.
2. A written will with witnesses.
3. Notarized written will.
4. Certified written will.

In order for a will to be recognized as legal, the following conditions must be met:

– The testator is lucid and lucid while making the will; without being deceived, threatened or coerced.

– The content of the will does not violate the prohibition of the law and does not contravene social ethics.

– The form of the will is not contrary to the provisions of law.

The form of the will in the above case is a written will certified by the Commune People’s Committee. The above will also fully meets the conditions specified in Article 630 of the Civil Code. However, the content of the will for the bequeaths is not clear about the location, but only declares the number of land plots and the map, the area without specifying the location of the heritage.

3. The condition for granting a red book for an inheritance is the land use right that has not yet been issued with a red book

For receiving an inheritance, the person entitled to the inheritance must first carry out the procedures for declaring the inheritance.

The declaration of inheritance of land without a red book is carried out at the Notary Public, and after the results are obtained, registration of land use rights will be carried out. Procedures for declaration of inheritance are specified in Article 57 and Article 58 of the Law on Notarization 2014.

1. The heir or authorized person should contact the notary public and present the required documents.
2. After checking the complete documents and in accordance with the law, the Notary Public will notarize the document on the division of the estate. estate, the document declaring the estate.
3. The acceptance must be posted within 15 days from the date of posting. The listing shall be made by a notary practice organization at the headquarters of the commune-level People’s Committee of the last place of permanent residence of the estate leaver;
4. After 15 days of posting, if there is no complaint or denunciation, the notary agency will certify the inheritance document. Co-heirs can make a written agreement on division of the inheritance or a written declaration of inheritance.
5. After receiving this document, the heirs will carry out procedures to apply for LURC at the People’s Committee of the district where the land is located

* Conditions for being granted a Red Book

Pursuant to Articles 100 and 101 of the 2013 Land Law, the conditions for granting a Certificate (Red Book, Pink Book) include two cases as follows:

Case 1: There are papers on land use rights

Having a land use right document is a case where a household or individual has one of the types of land use right papers specified in Article 100 of the 2013 Land Law and Article 18 of Decree No. 43/2014/ND-CP. .

Case 2: No papers on land use rights

No land use right documents is the case where a household or individual using the land inherits without one of the land use right papers specified in Article 100 of the 2013 Land Law and Article 18 of the Decree No. 43/2014/ND-CP.

4. Dossiers and procedures for granting Red Book for inherited land

4.1. Dossier of application for a Certificate

Clause 1 Article 8 of Circular 24/2014/TT-BTNMT stipulates that households and individuals need to prepare 01 set of documents as follows:

– Application for registration and issuance of Certificate according to  Form No. 04a/DK.

– Proof of financial obligations; papers related to the exemption or reduction of financial obligations on land and land-attached assets (if any).

– In case of registration of land use rights, one of the papers specified in  Article 100 of the 2013 Land Law and  Article 18 of Decree 43/2014/ND-CP (inheritance papers) must be submitted.

4.2. Request to provide documents to prove the origin of the land

Pursuant to Clause 1, Article 100 of the Land Law and Article 18 of Decree 43/2014/ND-CP stipulating the types of papers that can prove land use rights are as follows:

“a) Papers on the right to use land before October 15, 1993, issued by a competent authority during the implementation of the land policy of the State of the Democratic Republic of Vietnam, the Government of the Forest Revolution and the Government of the Socialist Republic of Vietnam. the Republic of South Vietnam and the State of the Socialist Republic of Vietnam;

b) A temporary land use right certificate issued by a competent state agency or named in the land register or cadastral book before October 15, 1993;

c) Lawful papers on inheritance or donation of land use rights or land-attached assets; papers on handing over houses of gratitude, houses of love attached to land;

d) Papers on transfer of land use rights, purchase and sale of houses attached to residential land before October 15, 1993, certified by the commune-level People’s Committee as being used before October 15, 1993;

dd) Papers on liquidation and valuation of houses attached to residential land; documents for purchase of state-owned houses as prescribed by law;

e) Papers on land use rights granted to land users by a competent agency under the old regime;

g) Other papers established before October 15, 1993 according to the Government’s regulations”.

Other papers prepared before October 15, 1993 as prescribed at Point g, Clause 1, Article 100 of the Land Law with the name of the land user, including:

1. Land-itemizing books and ant-filling books made before December 18, 1980.

2. One of the documents prepared in the process of land registration under the Directive No. 299-TTg of November 10, 1980 of the Prime Minister on the work of measuring, classifying and registering land statistics. land in the country under the management of state agencies, including:

a) Minutes of approval of the commune-level land registration council to determine that the person currently using the land is lawful;

b) A summary of lawful land use cases made by the commune-level People’s Committee or the commune-level Land Registration Council or the district- or provincial-level land management agency;

c) An application for registration of land use rights, if the documents specified at Points a and b of this Clause are not available.

3. The project or list or document on migration to build new economic zones, migration and resettlement approved by district- or provincial-level People’s Committees or competent state agencies.

4. Papers of the State-owned farm or forestry enterprise on the allocation of land to laborers in the farm or forestry farm for housing (if any).

5. Papers with contents on ownership of houses and works; on the construction and repair of houses and works certified or permitted by the People’s Committees of districts or provinces or the state management agencies in charge of housing and construction.

6. Papers on temporary land allocation issued by the People’s Committees of districts and provinces; An application for land use rights approved or approved by the People’s Committee of the commune or agricultural cooperative before July 1, 1980, or approved and accepted by the People’s Committee of the district or province.

7. Papers issued by a competent state agency on the allocation of land to agencies or organizations to arrange land for officials and employees to build their own houses or build houses to allocate (grant) to officials. , employees with capital that is not part of the state budget or built by their own contributions and contributions. In case of construction of houses with state budget capital, such housing funds must be handed over to local housing management agencies for management and business in accordance with law.

8. Copies of papers specified in Article 100 of the Land Law and papers specified in Clauses 2, 3, 4, 5, 6 and 7 of this Article certified by the People’s Committees of districts and provinces or specialized management agency at district or provincial level, in case the original of this document has been lost and the state agency no longer keeps a record of management of the grant of that type of paper.

Above is the advice of Khoa Tin on “procedure for division of inheritance as land that has not been issued with a red book”.

In case customers have unclear issues or need to discuss further, please call us immediately at 0983.533.005 for a free consultation.

Best regards./.