5 sai lầm phổ biến nhất khi chia thừa kế khiến gia đình lục đục hàng chục năm (Luật sư Lê Bình Phương phân tích)The 5 Most Common Mistakes When Dividing an Inheritance That Leave Families Feuding for Decades (Analysis by Lawyer Lê Bình Phương)

Reference translation for convenience. The Vietnamese version is the authoritative text.

Overview

Many inheritance disputes do not stem from greed, but from a misunderstanding of the law. A once-harmonious family, when a father or mother passes away, suddenly finds that no one knows exactly what the “estate” is, who has the right to receive it, and whether that handwritten note called a “will” is even valid.

These mistakes are not made deliberately, but arise from extremely common misconceptions that have long existed in the way Vietnamese people view inheritance.

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Relevant Legal Provisions

The legal framework governing inheritance is Chapter XX to Chapter XXIV of the Civil Code 2015 (No. 91/2015/QH13, in force from 01/01/2017), of which the most notable are:

• Article 612. The estate comprises the deceased’s separate property and their share of property held in common with others
• Article 623. Limitation period for inheritance: 30 years for immovable property, 10 years for movable property
• Article 630. Conditions for a will to be regarded as lawful
• Article 632. A witness to a will may not be an heir
• Clause 5 of Article 643. Where there are several wills over the same property, only the most recently made will is effective
• Article 644. Heirs entitled regardless of the contents of the will (the right to two-thirds of a share)
• Article 651. The three ranks of heirs at law
• Article 652. Inheritance by substitution
• Articles 653 and 654. Inheritance relationships of adopted children and stepchildren

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Analysis and Application

Mistake 1: Treating all property registered in the deceased’s name as the “estate”

This is the foundational mistake — and if you get it wrong at this very first step, everything that follows is miscalculated.

Article 612 of the Civil Code 2015 defines: “The estate comprises the separate property of the deceased and the deceased’s share of property held in common with others.”

This means that if Mr A dies leaving a house registered in his name but bought during his marriage to Mrs B, that house is common property. Mr A’s estate is only one half of the house, not the whole.

The first step in dividing an inheritance is to clearly determine, within the total property left by the deceased, which part is separate property (acquired before the marriage, given separately, inherited separately, etc.) and which part is common marital property. The common part is divided in two first; only then is the deceased’s portion the estate to be distributed.

Judicial practice confirms this principle: Precedent 24/2018/AL of the Council of Justices of the Supreme People’s Court resolved a dispute over a house and land that were common marital property, in which determining the deceased’s share within the common property was the prerequisite step before dividing the estate.

Mistake 2: Thinking a will is “supreme” and ignoring the rights of certain heirs

Many families wrongly believe that if a parent makes a will leaving all their property to one person, the others get nothing at all. This is incorrect under Vietnamese law.

Article 644 of the Civil Code 2015 provides clearly that, whatever the contents of the will, the following persons are still entitled to a portion of the estate equal to two-thirds of a share of an heir at law, if they were given no portion by the will or were given less than two-thirds of that share:

• Minor children
• The father and mother of the deceased
• The spouse
• Adult children who are incapable of working

For example: Mr C has 4 children and makes a will leaving all his property to his eldest. The other three children — if they are minors or incapable of working — still have the right to claim two-thirds of a share of the estate at law, regardless of what the will says.

Mistake 3: Relying on an oral will without following the proper procedure

An oral will is not without legal value, but the conditions for its validity are very strict and few people know them in full.

Clause 5 of Article 630 of the Civil Code 2015 provides that an oral will is lawful when:

• The testator expresses their final wishes before at least two witnesses
• Immediately afterwards, the witnesses record it in writing and jointly sign or fingerprint it
• Within 5 working days, the witnesses’ signatures/fingerprints must be certified by a notary or competent authority

A common mistake: after a father dies, the children recall that “he once said out loud he wanted to leave his property to the youngest” — with no witnesses, no written record, no notarisation. Such an oral will is invalid and has no legal value.

In addition, Article 632 of the Civil Code provides that a witness may not be an heir of the testator under the will or at law. If a witness is an heir under the will, the breach of the witness requirements may render the will invalid.

Mistake 4: Overlooking lawful heirs — adopted children, stepchildren, children born out of wedlock

The rough picture of the ranks of heirs that many people hold usually counts only biological children born within the marriage. Reality is far more complex:

Lawful adopted children (Article 653 of the Civil Code): An adopted child and their adoptive father and mother inherit from one another, while the adopted child may also inherit from their own biological father and mother. These two streams of inheritance are independent of each other.

Stepchildren with a stepfather/stepmother (Article 654 of the Civil Code): If a stepchild and a stepfather or stepmother care for and support one another as parent and child, they inherit from one another. This is a substantive condition — it does not require a formal adoption, but neither is it enough merely to “know each other.”

Inheritance by substitution (Article 652 of the Civil Code): If a child of the deceased died before the deceased, then the grandchild (the child of the deceased child) takes their place in receiving the share of the estate that their parent would have been entitled to. Overlooking a substituting grandchild is a mistake that leads to an incorrect division.

Mistake 5: Not knowing the limitation period — letting it lapse and losing the right

Clause 1 of Article 623 of the Civil Code 2015 provides:

“The limitation period for an heir to request division of the estate is 30 years for immovable property and 10 years for movable property, from the time the inheritance is opened.”

After this period expires, the estate belongs to the heir currently managing it. If no one is managing it, it belongs to the State.

Precedent 26/2018/AL of the Council of Justices of the Supreme People’s Court resolved a typical case: where the deceased died before the Ordinance on Inheritance of 30/8/1990 took effect, the limitation period is counted from 30/8/1990 (not from the date of death) under the principle of applying the law. This shows that even determining the starting point of the limitation period must be understood correctly.

A common occurrence in practice: a family “leaves it be” because they do not want a division that would upset those still living. Years later a dispute arises, and they discover that the limitation period has passed for the portion that is movable property (savings, shares, etc.).

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Real-World Situation

Situation 1: Mr D died in 2023, leaving a house registered in his name that he bought in 2005 (during the marriage). His three children immediately met to split it into three equal parts. The mistake: Mrs E (Mr D’s wife), who is still living, has the right to take back one half of the common property (Article 612 of the Civil Code). Mr D’s estate is only the remaining half. The three children may divide only that half — not the whole house.

Situation 2: Mrs F made a will leaving all her property to her youngest daughter, and nothing to her eldest son (50 years old, undergoing treatment for terminal cancer). The eldest son sues. Under Article 644 of the Civil Code, because he is an adult child incapable of working, he is still entitled to two-thirds of a share of the estate at law — even though the will makes no mention of him.

Situation 3: Mr G has a lawful adopted child (registered with the civil status authority when the child was small) and two biological children. He dies without a will. All three children fall within the first rank of heirs (point a, Clause 1 of Article 651 read together with Article 653 of the Civil Code) and share equally. The adopted child is not given lower priority than the biological children in this case.

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Frequently Asked Questions

My father made a will several times, each with different contents — which will is effective?

Under Clause 5 of Article 643 of the Civil Code 2015, where a person leaves several wills over the same property, only the most recently made will is effective. If the wills concern different property and do not conflict, all are valid. The key is to establish the chronological order in which the wills were made — usually through the date of signing, notarisation, or witnesses.

Can a child born out of wedlock (where the parents have no marriage registration) inherit?

Yes, if the parent–child relationship is lawfully established. Under Clause 1 of Article 651, a “biological child” in the first rank of heirs is not distinguished by whether the child was born within or outside marriage — all that is required is that the blood relationship be determined (through a birth certificate, recognition of the child, or DNA testing in a dispute). The procedure to establish paternity/maternity out of wedlock may be carried out even after the parent has died, through court proceedings.

Can a person involved in an inheritance dispute sell common property within the estate?

This is a real risk. For one co-heir to transfer common property within the estate without the consent of the other co-heirs is conduct that infringes the co-heirs’ rights. However, Precedent 16/2017/AL shows that if the other co-heirs knew of the transfer, did not object, and have used the money from it, the court may treat it as having been consented to, so that the property is no longer part of the estate. One must be especially careful with this situation.

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Important Notes

Correctly determining the estate is a step that cannot be skipped. Before discussing who gets what and how much, the total estate must be clearly identified. This requires distinguishing separate property from common marital property, identifying property under actual ownership (not based only on the name on the documents), and listing in full the property obligations left by the deceased (debts, if any).

An agreement to divide an inheritance must be notarised where there is immovable property. Many families reach an oral or handwritten agreement on dividing a house and land, but such an agreement has no force for registering the change at the land registration office unless it is notarised. The consequence: ten years on, the title still cannot be transferred and the dispute continues.

Do not let the limitation period lapse. For immovable property, 30 years sounds long, but many families hesitate because the surviving spouse is still alive, and then the next generation continues to hesitate. By the third generation they go to court, only to find the limitation period has passed. For movable property, the 10-year period arrives very quickly.

The estate manager has legal responsibilities. The person managing the estate (often the children living with the parents) must preserve it and may not, of their own accord, dispose of the shares of other co-heirs. Precedent 05/2016/AL records that a person who manages the estate and has contributed effort to improving and preserving it will have that effort credited on division, but this does not mean they may appropriate the entire estate.

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Related Articles

• How is the property of a deceased person divided when there is no will?

• When is a will invalid under current law?

• How is the property of a deceased person divided when there is no will?

• Inheritance disputes: common types and how to resolve them lawfully

Conclusion

Inheritance is not merely “dividing property” — it is a legal process with a sequence: determine the estate, determine the heirs, check whether the will is valid, check for heirs entitled regardless of the will, and proceed to divide by agreement or by rank of heirs.

According to lawyer Lê Bình Phương, most inheritance disputes can be prevented if a family handles matters correctly right after a death: drawing up a record inventorying the estate, fully identifying the heirs, and signing a notarised division agreement instead of leaving it to “be resolved gradually.” A thorough family meeting together with timely legal advice can save many years of litigation later.

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This article was prepared based on: Articles 612, 613, 621, 623, 630, 632, 643, 644, 650–654 of the Civil Code 2015 (No. 91/2015/QH13); Precedents 05/2016/AL, 16/2017/AL, 24/2018/AL, 26/2018/AL of the Council of Justices of the Supreme People’s Court.

See also: Who is Lawyer Lê Bình Phương?