ISSUES ON INHERITANCE INVOLVING FOREIGN ELEMENTS
Inheritance involving foreign elements
1. Cases of inheritance involving foreign elements:
– The estate leavers are foreign or overseas Vietnamese;
– The heirs are foreign or overseas Vietnamese;
– Heritage in oversea.
2. Procedure of inheritance involving foreign elements under provisions of the law: under Article 767 Civil Law 2005 on inheritance at law involving foreign elements regulated as follows:
– The inheritance at law must comply with the laws of the countries of which the estate leavers bear the nationalities before their death.
– The inheritance rights to immovable must comply with the laws of the countries where such immovable are located.
– Heirless estates being immovable shall belong to the States of the countries where such immovable are located.
– Heirless estates being movables shall belong to the States of the countries of which the estate leavers bear the nationalities.
The process of declaring and receiving heritage involving foreign elements are specified in Notarization Law 2014 and Decree 29/2015/NĐ-CP detail regulations and guiding implements of some articles of Notarization Law. Agreement on division of heritage and the declaring and receiving heritage must be publicly posted at headquarters of the Commune People’s Committee where residence before of the estate leavers; in case of without place of residence it will be publicly posted at headquarters of the Commune People’s Committee where temporary residence involving term of the estate leavers. If cannot determine both of places it will be posted at Commune People’s Committee where real estate of the estate leavers herein. After 15 days from the date of posting, if not have any complaints and denunciations, notary agency will receive agreement on division of heritage under Article 57 of Notarization Law 2014.
3. Notes for inheritance involving foreign elements:
a) Provisions of the law on recognition the land use rights, house ownership rights for inheritance involving foreign elements: from 01/07/2015, Housing Law 2014 regulate overseas Vietnamese and foreign have rights to receive heritage and have name on Certificate. This is an open regulation, makes condition for heirs are overseas Vietnamese and foreign legalize the name of themselves on Certificate. Details, Housing Law 2014 regulate:
– For overseas Vietnamese to owns house in Vietnam through the form purchase and leasing of commercial housing enterprises, cooperative business real estate (hereinafter referred to as corporate real estate business); purchase, donation or exchange or inherit houses of families and individuals; the transfer of land use in investment projects in commercial building allowed them to organize sale of housing construction in accordance with the law (Clause 2 Article 8).
– Foreign organizations and individuals to own houses in Vietnam through the following forms: Investment in housing construction project in Vietnam; purchasing, leasing, donation or inheritance of commercial housing includes apartments and individual houses in investment projects of housing construction, except for the area to ensure defense and security in accordance Government regulations (Clause 2 Article 159).
b) Income tax in case of transfer inherited land: under Clause 4 Article 4 of personal income tax Law, income from transfer of heritage is real estate between parents with their children will be nontaxable. Under provisions at Clause 5 Article 3 of personal income tax Law, income from transfer of real estate is taxable income. However, for income from transfer of heritage, transferor will be nontaxable in the cases:
– Incomes from receipt of inheritances or gifts that are real estate between spouses, parents and their children; adoptive parents and their adopted children; fathers-in-law or mothers-in-law and daughters-in-law or sons-in-law; grandparents and their grandchildren; or among blood siblings;
– Incomes from transfer of residential houses, rights to use residential land and assets attached to residential land received by individuals who have only one residential house or land plot each.
So, if heirs want to transfer heritage is house, land use right and assets attached to land they will be only taxable when this land is only assets that heirs owns at Vietnam or heirs transfers to relatives in family (includes: grandparents; adoptive parent; fathers-in-law or mothers-in-law; blood siblings).
c) Transfer the money earned from the transfer of inherited land to aboard: heirs are overseas Vietnamese or foreign are not entitled to buy house attached to land in Vietnam when receive value of heritage, heirs have right to transfer this amount to aboard under provisions of Foreign Exchange Ordinance. Details, Vietnamese who representative of overseas heirs have right to contact bank is entitled to foreign exchange activities to perform the foreign currency transfer procedures to aboard.
Lawyer Nha Trang would like to provide the above provisions of currently law on inheritance involving foreign elements. We hope that this post will help you understand clearly about inheritance rules.
Lawyer Nha Trang