Viewpoint... Will execution path analysis.
Published:
2024-05-11
With the continuous progress and development of society and the continuous improvement of people's material living standards, more and more people pay more attention to the distribution of their own inheritance, and solve their worries by establishing the distribution of testamentary property. But then follow-up questions continue to emerge, especially the acceptance of the heir to the will before the testator dies, how will the will be executed?
Presentation of 1. issues
With the continuous progress and development of society and the continuous improvement of people's material living standards, more and more people pay more attention to the distribution of their own inheritance, and solve their worries by establishing the distribution of testamentary property. But then follow-up problems also continue to emerge, especially the acceptance of the testamentary heir earlier than the testator died, how will the will be executed? To this end, the author through a specific case, combined with the relevant legal provisions of the analysis, in order to have some enlightenment to the readers.
2. Case Introduction
The decedent Zhao made a self-written will on December 23, 2021. The will stated: My ex-wife Zhan died in August 2013, and the ex-wife Zhan's estate has been divided. I gave birth to a daughter Zhao Xiaomou with my ex-wife Zhan. I remarried my current wife Luan (who is widowed) on May 1, 2014. After remarrying, I have no children (I have not formed an actual parenting relationship with Luan Xiaomou, the son of my remarried wife), and both my parents and Luan have passed away. Now I voluntarily own the property No. X-XXX, Building XX, XXX Community, XX Street, Lixia District, Jinan City. After my death, my wife Luan inherited it. My daughter Zhao Xiaomou, who gave birth to my ex-wife Zhan, has no right to inherit it. This will is my true meaning, I voluntarily write all the contents and autograph the date of writing. Now Luan Xiaomou (Luan's son) said in consultation that he is now supporting Zhao and Luan. Because Luan is frail and sickly, he is worried that his mother will die earlier than Zhao. If your mother Luan died earlier than Zhao, do you have the right to inherit Zhao's property according to the content of the will based on subrogation? If your mother died later than Zhao, can you get the property in Zhao's will? If not, how to protect your legal rights to the maximum extent?
3. legal analysis
(I), the answer to Luan Xiaomou's proposal that if his mother died before Zhao, he could have the right to inherit Zhao's real estate according to the will according to subrogation inheritance.
In conjunction with the provisions of Article 128 of the Civil Code, it is clear that subrogation inheritance applies only to statutory inheritance and not to testamentary inheritance. In this case, the decedent Zhao made a will and disposed of his property by way of a will. Luan Xiaomou's mother Luan has the right to inherit Zhao's estate according to the will. If Luan dies before Zhao, the will is invalid because no one inherits it, and all Zhao's estate is treated according to legal inheritance. In the case of the death of the testamentary heir or legatee before the testator, the testamentary heir and legatee of the property inherited by the will no longer exist, and they no longer have the ability to inherit or be bequeathed, that is, the legal relationship between the testator and the testamentary heir or legatee no longer exists. At this time, the estate involved in the will should be dealt with in accordance with the way of legal inheritance. Luan Xiaomou, as a stepson who has not formed an actual upbringing relationship, does not belong to the legal heir. Therefore, Luan Xiaomou has no right to inherit Zhao's real estate in accordance with the will when the heir Luan dies earlier than the heir Zhao.
(II) about Luan Xiaomou's proposal that if his mother Luan died later than Zhao, could Luan Xiaomou get the real estate?
After Zhao's death and inheritance began, Luan died before Zhao's inheritance was divided. At this time, Luan's property that should be inherited according to the will was transferred to Luan's small one for inheritance.
Advice from 4. lawyers
Luan Xiaomou can protect his legitimate rights and interests in the following ways according to different situations.
(I), if Luan did not give up the inheritance after Zhao's death and before the inheritance was divided, Luan Xiao could obtain the real estate through inheritance transfer if Luan died at this time. Article 152 of the Civil Code provides that if, after the commencement of inheritance, the heir dies before the division of the estate and does not give up the inheritance, the estate that the heir shall inherit shall be transferred to his heir, unless otherwise arranged by the will.
The scope of succession, if there is a legally valid will, the application of testamentary succession to obtain the share of the estate of the successor, and if there is no will or valid will, the application of legal inheritance to obtain the share of the estate of the successor.
Inheritance is essentially two independent inheritance relationships, because the heir has acquired ownership of the estate at the beginning of the inheritance, and the inheritance is the re-inheritance of the share of the estate, not the transfer of inheritance rights.
It should be noted that if Zhao's will does not specifically state that the legacy left is limited to the heir Luan himself, and cannot be inherited to others, etc., then inheritance can occur.
(II) Luan Xiao can sign a bequest and support agreement with Zhao after the death of Luan, the heir to the will, and acquire Zhao's real estate according to the bequest and support agreement after Zhao's death.
1. The bequest and maintenance agreement has the highest effect, which is essentially a double-service paid contract, under the condition that the dependant fulfills the obligation of maintenance, as the dependant, bequests his inheritance with him after his death.
2. As a civil legal act, bequests must not only conform to the general elements of legal acts, but also conform to the special provisions of the Succession Code of the Civil Code. The bequest must meet the following conditions:
(1) At the time of making the will, the testator shall be of full capacity.
(2) The will shall be true, voluntary and lawful, the testator shall have the right to dispose of the property, and the will shall retain the necessary share of the estate for the heirs who lack the ability to work and have no source of income.
(3) The legatee must exist and be alive at the time of the will.
(4) The bequestee shall expressly accept the bequest within 60 days of knowing the bequest. (expressed in writing, orally, or by specific conduct)
(III) Luan Xiaomou, as Zhao's stepchild, if he has fulfilled his duty of upbringing, in order to obtain legal rights and interests, if Zhao and Luan have passed away and there is no bequest and upbringing agreement, he can request an appropriate share of the estate in accordance with the provisions of the Civil Code, which belongs to the right of discretionary share of the estate.
Article 1,191 of the Civil Code: Appropriate inheritance may be distributed to persons other than heirs who rely on the support of the decedent, or to persons other than heirs who support the decedent more. Therefore, Luan Xiamou can properly share the inheritance according to the person who supports more heirs.
5. Extension Interpretation: How to Distinguish Between Transcendence and Subrogation Inheritance
(I) effectiveness is different.
Inheritance is a way of dealing with the estate, after the beginning of inheritance, before the division of the estate, in the case of the death of the heir, the heir should inherit the inheritance of his heir (the heir's) inheritance, in essence, the heir's estate occurred twice in a row. The successor has the right to divide the heir's estate, not the right to inherit the heir's estate. Unlike inheritance, the successor in subrogation exercises the right to inherit the inheritance of the heir, not the inheritance of the person to be replaced.
(II) time of occurrence and establishment conditions are different.
Transinheritance occurs after the commencement of inheritance and before the division of the estate and may occur as a result of the death of either heir, whereas subrogation occurs only as a result of the death of the heir's children.
The subject of (III) rights is different.
The successor is all the legal heirs of the deceased heir.
(IV) scope of application is different.
Succession may occur in legal succession, testamentary succession and bequest, while subrogation inheritance applies only to the younger lineage of the legal succession of the successor.
Attached: Relevant legal provisions
the People's Republic of China Civil Code
ARTICLE VIWhen a civil subject engages in civil activities, it shall follow the principle of fairness and reasonably determine the rights and obligations of all parties.
Article 1,123After the commencement of succession, it shall be handled in accordance with legal succession; if there is a will, it shall be handled in accordance with testamentary succession or bequest; if there is a legacy maintenance agreement, it shall be handled in accordance with the agreement.
Article 124If, after the commencement of succession, the heir renounces the succession, he shall, before the disposition of the estate, give his renunciation in writing; if there is no such expression, the succession shall be deemed to be accepted.
The bequestee shall, within 60 days after knowing the bequest, make a representation of acceptance or abandonment of the bequest.
Article 128If the decedent's children die before the decedent, the decedent's children shall be inherited in subrogation by the lineage of the decedent's children.
If the siblings of the decedent die before the decedent, the children of the siblings of the decedent shall inherit in subrogation.
A subrogation heir can generally only inherit the share of the estate that the subrogation heir is entitled to inherit.
Article 1,152If, after the commencement of succession, the heir dies before the division of the estate and does not give up the inheritance, the estate that the heir shall inherit shall be transferred to his heir, unless otherwise arranged in the will.
Article 1,154Under any of the following circumstances, the relevant part of the estate shall be handled in accordance with legal inheritance:
(I) the heir to the will to waive the inheritance or the legatee to waive the legacy;
(II) a testamentary heir loses his right of inheritance or a legatee loses his right of legacy;
(III) the will's successor or legatee dies or terminates before the testator;
(IV) the estate covered by the invalid part of the will;
(V) undisposed estate of a will.
Article 1,158A natural person may enter into a legacy maintenance agreement with an organization or individual other than the heir. According to the agreement, the organization or individual assumes the obligation of the natural person to raise and bury the natural person and enjoys the right to bequeath.
(Statement: This article is based on the author's experience summary of the point of view, only for the exchange of learning)
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