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44 Inheritance

Law Kao/Civil Law/Meng Xiangui/2025, Meaning: Inheritance refers to the legal system in which after the death of a natural person, a person within a certain range stipulated by the law or a person designated by a will obtains the legal personal property left by the deceased in accordance with the law. Both the heir and the decedent It can only be a natural person.

Edited at 2024-11-28 20:36:44

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44 Inheritance

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44Inheritance

Basic principles

Meaning: Inheritance refers to the legal system in which after the death of a natural person, a person within a certain scope stipulated by the law or a person designated by the will obtains the legal personal property left by the deceased in accordance with the law. Both the heir and the decedent can only be natural persons.

Time: Inheritance begins when the deceased dies (including physical death and declared death). If several people who are related to each other die in the same incident and it is difficult to determine the time of death, how to determine the time of death?

If the deceased person has no other heirs except the accident, the order of death does not matter.

If the deceased person has other heirs except for the accident: ① The elder dies first and the younger dies last ② The same generation dies at the same time, and each other does not inherit.

Except for the accident, some deceased persons may have other heirs, and some may have no other heirs: the person who has no other heirs dies first.

scope of heritage

①Inheritance is the object of inheritance rights and is a collection of property ②The property of a natural person or legal person after termination is not an inheritance ③At the time of death "Death compensation" resulting from the death of a natural person due to an infringement (infringement) is not an inheritance After the death of a natural person, the personality interests of the deceased are infringed due to the infringement (infringement) of a third party, and the mental damage compensation (mental damage consolation payment) of his close relatives is not an inheritance. ④Individual: In the case of joint property between husband and wife, half must be divested to the spouse first, and the other half shall be the inheritance. ⑤ Legal: Illegal debts arising from gambling, prostitution or drug dealing are not inheritance

Abandonment and loss of inheritance rights

Waiver of inheritance rights (active)

Meaning: After the inheritance begins and before the inheritance is divided, the heir expresses his intention to refuse to accept the inheritance of the deceased. The heir's abandonment before the death of the deceased is invalid, resulting in the inability to perform legal obligations.

Method: The heir's relinquishment of inheritance should be expressed in writing to the estate administrator or other heirs. In a lawsuit, if the heir verbally expresses to the court that he has given up the inheritance, a transcript must be made and signed by the person giving up the inheritance.

Time: The heir's intention to give up inheritance should be made after the inheritance begins and before the inheritance is divided. After the inheritance is divided, it is no longer the inheritance rights that are given up, but the ownership rights.

Regret: Before the estate is settled or during litigation, if the heir regrets giving up the inheritance, the court will decide whether to recognize it based on the specific reasons raised by the heir. After the inheritance is settled, if the heir regrets giving up the inheritance, it will not be recognized.

Effectiveness: If the heir is unable to perform his legal obligations due to giving up the right to inherit, the act of giving up the right to inherit is invalid. The effect of the renunciation of inheritance shall be traced back to the time when the inheritance begins.

Loss of inheritance (passive)

Meaning: The legal system in which an heir is deprived of the right to inherit due to illegal acts against the decedent or other heirs as prescribed by law, and thus loses the right to inherit.

legal situation

If a legatee commits any of the following acts, he or she will lose the right to be a legatee.

absolute loss

Intentional killing of the deceased (whether completed or attempted)

Intentionally killing other heirs to fight for the inheritance: If the heir intentionally kills the decedent or intentionally kills other heirs to fight for the inheritance, and the decedent designates the inheritance to be inherited by the heir in a will, the will can be confirmed to be invalid and the heir has lost the right to inherit.

relative loss

Abuse and abandonment of the deceased and the circumstances are serious

Forgery, tampering, concealment, or destruction of wills and the circumstances are serious: If an heir forges, tamperes with, conceals, or destroys a will, infringing upon the interests of heirs who lack the ability to work and have no source of income, and causing difficulties in their lives, it shall be deemed as "serious circumstances."

Using fraud or coercion to force or prevent the deceased from establishing, changing or withdrawing a will, if the circumstances are serious

If an heir commits the above-mentioned acts and truly shows repentance, and the decedent expresses forgiveness (an emotional expression/quasi-civil legal act in nature) or later lists him or her as an heir in the will, the heir will not lose the right to inherit.

Legal inheritance

Meaning: In the absence of a legacy support agreement and a will or the legacy support agreement and will are invalid, the heir obtains the inheritance method of the deceased's estate in accordance with the scope of heirs, the order of succession and the principles of inheritance distribution determined by law.

situation

①The heir to the will renounces inheritance or the legatee renounces the inheritance ②The heir to the testament loses the right to inherit or the legatee loses the right to receive a legacy ③The testamentary heir or legatee dies or terminates before the testator ④The inheritance involved in the invalid part of the will ⑤The inheritance that has not been disposed of by the will

order

first order

(1) Legal heirs in the first order: spouse, parents and children Children include: legitimate children (artificial insemination/test tube babies are considered legitimate children), illegitimate children, adopted children, dependent stepchildren and fetuses (2) First-order fictional heir: ① If a widowed daughter-in-law has fulfilled her main support obligations to her parents-in-law, or a widowed son-in-law has fulfilled her main support obligations to her parents-in-law, they can be regarded as the first-order virtual heirs regardless of whether they remarry or not. ②Subrogation by grandchildren and maternal grandchildren

second order

Second order of legal heirs: brothers, sisters, grandparents, maternal grandparents After the inheritance begins, the first-order heir will inherit, and the second-order heir will not inherit. If there is no first-order heir, the second-order heir will inherit.

estate distribution

Principle: The shares of inheritance inherited by heirs in the same order should generally be equal.

exception

Decision: If the heirs agree through consultation, they may be unequal.

legal

① When distributing inheritance, heirs who have special difficulties in life and lack the ability to work should be taken into consideration ② Heirs who have performed the main support obligations for the decedent or who live with the decedent may receive more shares when distributing the inheritance. If the deceased has provided the main financial source for his life, or provided main support in terms of labor services, etc., he shall be deemed to have fulfilled his main support obligation or main support obligation. ③Heirs who have the ability and conditions to support but fail to fulfill their support obligations shall receive no or less share. If the heir has the ability and conditions to support, and is willing to fulfill his support obligations, but the decedent has made it clear that he does not require support because he has a fixed income and labor ability, when distributing the inheritance, his inheritance share should generally not be affected. Although heirs who have the ability and conditions to support live with the decedent, they have no obligation to support the decedent who needs support. When distributing the inheritance, they may receive a small share or no share. ④ The inheritance that no one inherits or bequeathed shall be owned by the state and used for public welfare; if the deceased was a member of the collective ownership organization during his lifetime, it shall be owned by the collective ownership organization. When the inheritance is owned by the state or a collective ownership organization because there is no one to inherit it and there is no one to be bequeathed, the person who can distribute the inheritance appropriately files a lawsuit to obtain the inheritance, and the court shall distribute the inheritance appropriately according to the circumstances. ⑤ For people other than heirs who rely on the decedent for support (such as finding an orphan or abandoned baby but not completing the adoption registration procedures), or for people other than heirs who support the decedent more (such as nephews, nieces, nephews, nieces, etc.) , can be distributed to appropriate inheritance. The inheritance may be distributed to those who have appropriate inheritance, and the inheritance may be distributed to them more or less than the heirs, as the case may be. A person who can be assigned an appropriate inheritance has the right to file a lawsuit with the court as an independent litigation subject when his right to obtain the deceased's inheritance according to law is violated. ⑥ If the adoptee fulfills his duty of support to his adoptive parents and at the same time supports his biological parents to a large extent, in addition to inheriting the inheritance of the adoptive parents, he may also receive an appropriate share of the inheritance of the biological parents. ⑦Stepchildren who obtain the inheritance rights of their stepparents due to a custody relationship will not affect their enjoyment of the inheritance rights of their biological parents.

testamentary inheritance

Applicable conditions

①There is no legacy support agreement ② There is a will and it is legal and valid ③The testamentary heir has not given up or lost his inheritance rights, nor has he died before the decedent

form

Notarized will: It is handled by the testator through a notary institution. Notarized wills are no longer the most effective and have the same value level as the other five types of wills.

Self-written will: Written and signed by the testator himself, indicating the year, month and day. If the contents of a natural person's suicide note concerning the disposition of personal property after death are indeed the true expression of the deceased's will, signed by him and marked with the year, month, and day, and there is no evidence to the contrary, it may be treated as a self-written will.

audio and video will

① There should be more than 2 witnesses present to witness the will. The following people cannot be witnesses of the will: Persons without capacity for civil conduct, persons with limited capacity for civil conduct, and other persons who do not have the capacity to witness; Heirs and legatees; A person who has an interest in an heir or legatee. Creditors and debtors of heirs and legatees, and joint business partners shall also be deemed to have an interest in the heir or legatee and cannot serve as witnesses to the will. ② The testator and witnesses should record their names or portraits, as well as the year, month, and day in the video recording.

oral will

① There should be more than 2 witnesses present to witness ② In critical circumstances, the testator may make an oral will After the critical situation is eliminated, if the testator is able to make a will in writing or in the form of audio and video recordings, the oral will will be invalid.

writing a will

① There should be more than 2 witnesses present to witness ② Written on behalf of one of them, signed by the testator, attorney and other witnesses, indicating the year, month and day Writing a will is not an agency, and testamentary acts cannot be performed by an agency and must be performed by the testator himself. The will cannot be procured by proxy, but can be written on behalf of others.

Print a will

① There should be more than 2 witnesses present to witness ② The testator and witnesses should sign on each page of the will and indicate the year, month and day.

effectiveness

Basic rules

A testator can revoke or change his or her will After making a will, if the testator carries out civil legal actions contrary to the contents of the will, it will be deemed to have revoked the relevant contents of the will. If there are several wills and their contents are conflicting, the last will shall prevail.

invalid will As a unilateral civil legal act, a will has no intention of the counterparty and has only two possibilities in terms of validity, namely a valid will and an invalid will.

① A will made by a person without capacity for civil conduct or a person with limited capacity for civil conduct is invalid. ②The will must express the true intention of the testator. A will made under fraud or coercion is invalid. ③Forged wills are invalid ④If the will is tampered with, the tampered content will be invalid. ⑤ If the testator disposes of the national, collective or other people’s (spouse’s) property in a will, that part of the will shall be deemed invalid. ⑥ If the necessary share of the inheritance is not reserved for an heir who lacks the ability to work and has no source of income, the disposition of the necessary share that should be reserved shall be invalid.

Will with obligations

If there are obligations attached to testamentary inheritance or legacy, the heir or legatee shall perform the obligations If there is no justifiable reason for failure to perform obligations, upon request by an interested party or relevant organization, the court may cancel the right to receive the portion of the inheritance with obligations attached. In a testamentary inheritance or legacy with obligations attached, if the obligations can be fulfilled but the heir or legatee fails to perform without justifiable reasons, upon request of the beneficiary or other heir, the court may cancel the right to receive the part of the estate with obligations attached, and the heir who made the request shall or the beneficiary is responsible for fulfilling the obligations of the testator and accepting the inheritance

Subrogation and transfer of inheritance

Subrogation

Meaning: If the decedent's children die before the decedent, the descendants of the decedent's children will inherit by blood. If the decedent's brothers and sisters die before the decedent, the children of the decedent's brothers and sisters will inherit on behalf of the decedent.

Essence: transfer of inheritance rights (one-time inheritance)

Applicable situation: The decedent’s children die before the decedent or the decedent’s brothers and sisters die before the decedent

Subject of rights: direct descendant blood relatives of the person being substituted (no limit on the number of generations)

Traditional subrogation inheritance: The decedent’s grandchildren, grandsons, great-grandchildren, and great-grandchildren can all inherit by subrogation, and the heirs are not limited by the number of generations. However, because dependent stepchildren are not blood relatives (natural blood relatives or virtual blood relatives), they have no right of subrogation. The typical situation of traditional subrogation inheritance is: if the parents die before the grandparents, the grandchildren inherit by substitution.

New type of subrogation: A typical situation of new type of subrogation is: a nephew, niece, nephew or niece has the right to inherit the inheritance of an uncle, uncle, aunt, aunt or uncle.

transfer inheritance

Meaning: After the inheritance begins, if the heir dies before the inheritance is divided and does not give up the inheritance, the inheritance that the heir should inherit will be transferred to his heirs, unless otherwise arranged in the will.

Essence: the right to divide the estate of the deceased (two inheritances)

Applicable situation: The heir dies after the inheritance begins and before the inheritance is divided.

Subject of rights: all legal heirs who survived the death of the transferred heir (no limit on the number of generations)

Disposal of inheritance

estate administrator

Sure

①After the inheritance begins, the executor shall be the estate administrator. ② If there is no executor, the heirs should promptly select an estate administrator ③If the heirs are not selected, the heirs shall jointly serve as the estate administrator. ④ If there is no heir or all heirs give up the inheritance, the civil affairs department or village committee of the deceased’s place of residence shall serve as the estate administrator.

Designation: If there is a dispute over the determination of the estate administrator, the interested party may apply to the court to appoint the estate administrator.

Responsibilities

① Clean up the inheritance and make an inventory of the inheritance ②Report the inheritance status to the heirs ③ Take necessary measures to prevent damage and loss of heritage ④Handle the debts and claims of the deceased ⑤Divide the estate in accordance with the will or in accordance with legal provisions ⑥Perform other necessary actions related to the management of heritage

Responsibility: The estate administrator shall perform his duties in accordance with the law, and shall bear civil liability if he causes damage to heirs, legatees or creditors intentionally or due to gross negligence.

Remuneration: The estate administrator may receive remuneration in accordance with legal provisions or in accordance with the agreement

Obligation to notify: After the inheritance begins, the heir who knows of the death of the deceased should promptly notify other heirs and the executor. If no one of the heirs is aware of the decedent's death or is aware of the decedent's death and is unable to notify the deceased, the residents' committee or village committee of the deceased's unit or residence shall be responsible for the notification. When the court hears an inheritance case, if it knows that there is an heir but cannot notify it, when dividing the estate, it must retain the inheritance that he should inherit and determine the custodian or custodian of the inheritance.

Custody obligations: Those who have inheritance must properly keep the inheritance, and no organization or individual may embezzle or compete for it.

Determination of inheritance: Unless otherwise agreed, when the inheritance is divided, half of the jointly-owned property should be divided among the spouses, and the rest should be the inheritance of the decedent. If the inheritance is among the family's common property, when the inheritance is divided, the property of others should be divided first.

The fetus’ share should be retained: When the inheritance is divided, the fetus’ inheritance share should be retained. The fetus is dead when it is delivered, and the retained share shall be handled according to legal inheritance. If the share of the inheritance that should be reserved for the fetus is not reserved, it shall be deducted from the inheritance inherited by the heir. The share of the inheritance reserved for the fetus, if the fetus dies after birth, will be inherited by its heirs; if the fetus is dead when delivered, it will be inherited by the decedent’s heirs.

Bequests and Legacy Support Agreements

Similarities and Differences between Bequests and Wills

Bequests and wills are both unilateral civil legal acts

Object of bequest: natural person other than the state, collective or legal heir (such as granddaughter, nephew, niece, nanny, etc.) Target of the will: Legal heirs

consequences of silence

The legatee shall, within 60 days after learning of the legacy, make an expression of acceptance or renunciation of the legacy; failure to express within the expiration date shall be deemed as a renunciation of the legacy.

After the inheritance begins, if the heir renounces the inheritance, he shall make a written statement of renunciation of the inheritance before the estate is disposed of; if there is no expression, the heir shall be deemed to have accepted the inheritance.

Similarities and Differences between Bequest and Gift

Bequests and gifts are free of charge

A bequest is a posthumous act, while a donation is an act made before death.

A bequest is a unilateral civil legal act, while a donation is a civil legal act by both parties.

Bequest requires formality, gift does not require formality

Bequests are subject to the adjustment of the inheritance code, and gifts are subject to the contract code.

legacy support agreement

Meaning: A natural person can enter into a legacy support agreement with an organization or individual other than the heir. According to the agreement, the organization or individual assumes the obligation to support, support, and bury the natural person, and enjoys the right to receive a legacy.

nature

①The civil legal actions of both parties are not subject to the adjustment of the contract section, but are subject to the inheritance section. ② The supporter has the obligation to live, support, and bury the legatee, and has the right to obtain the bequest property; if the legatee is about to transfer the property to the supporter before death, the nature of the act will be deemed as a "donation with obligations." ③The dual attributes of civil legal actions during life and death. The support obligation of the caregiver takes effect during his or her lifetime, and the donation of property by the legatee takes effect after the death of the legatee.

main body

①The legatee can only be a natural person ②The supporter can be either a natural person or a collective ownership organization When the supporter is a natural person, there cannot be a legal support obligation relationship between the legatee and the supporter. Grandchildren are not legal heirs, but under special circumstances, they have legal support obligations to their grandparents. Therefore, a "legacy support agreement" cannot be signed between the two. If signed, the agreement will be invalid

Termination: After an organization or individual other than the heir signs a legacy support agreement with a natural person, but fails to perform it without justifiable reasons, resulting in the termination of the agreement, it will not be able to enjoy the right to receive the legacy, and the support fees paid by it will generally not be compensated. If the legatee fails to perform without justifiable reasons, causing the agreement to be terminated, the legatee shall repay the support fees paid by organizations or individuals other than the heir.

Effectiveness: After the inheritance begins, it will be handled in accordance with the legal inheritance; if there is a will, it will be handled in accordance with the testamentary inheritance or legacy; if there is a legacy and support agreement, it will be handled in accordance with the agreement. If the deceased made a legacy and support agreement with others during his lifetime and also made a will, after the inheritance begins, if the legacy and support agreement does not conflict with the will, the estate will be handled according to the agreement and the will respectively; if there is a conflict, the estate will be handled according to the agreement, and if there is any conflict with the agreement, the estate will be handled according to the agreement. The will is invalid in whole or in part In a nutshell: Legacy support agreement > Will (legacy) > Legal inheritance

Qualified inheritance and the treatment of divided and unpaid debts

Limited inheritance: The heir shall pay off the taxes and debts that the deceased should pay according to law within the actual value of the inheritance received. This does not apply to the amount that exceeds the actual value of the estate and is voluntarily repaid by the heirs. If the heir gives up the inheritance, he will not be liable for the taxes and debts that the decedent should pay according to law.

Handling of unpaid debts after the estate has been divided

When the estate has been divided but the decedent still has unpaid debts, the following rules apply: ① The caregiver in the legacy support agreement is not responsible for debt repayment. Because it has fulfilled the life, death and burial obligations to the legatee ② If there is a legal inheritance, the legal heir shall first use the inheritance to pay off the debt; if the amount is insufficient, the remaining debt shall be repaid by the testamentary heirs and legatees in proportion, but shall be limited to the value of the inheritance. ③If there is no legal inheritance, the willary heirs and legatees will repay the inheritance in proportion, but the value of the inheritance shall be limited.