legal master

Chapter 18 Questions and Answers about Marriage and Inheritance (17)
Fang’s uncle had passed away long ago, and his only daughter was married to a foreign country, leaving him alone, old and infirm, and unable to work, so he entered into a written agreement with Fang in 2002, stipulating that he would be supported by Fang during his lifetime. Later, Fang was buried, and the three houses left behind belonged to Fang.The agreement is proven by neighbors. In March 2006, Fang's uncle became seriously ill.His daughter went home to take care of her.Soon his uncle died of illness and was buried by his daughter.Fang wanted to implement the agreement, but his cousin took out the will written by his father before his death and refused to return the house to Fang.

Analysis according to law
Article 31 of my country's "Inheritance Law" stipulates: "Citizens can sign a bequest support agreement with their supporters. According to the agreement, the supporter assumes the obligation of the citizen's birth, death and burial, and enjoys the right to bequeath."

After Fang's uncle made this agreement, he made a will for his daughter to inherit the estate.According to the provisions of the "Inheritance Law", the testator can revoke or change his own will; if there are several wills and the content is inconsistent, the last will shall prevail.If Fang's uncle has two self-written wills, the contents of which contradict each other, of course the latter will shall prevail.But now it is the content of the bequest support agreement that contradicts the will, and the bequest support agreement and the will are different in nature and effect. Article 5 of the "Inheritance Law" stipulates: "After the succession begins, it shall be handled in accordance with the legal succession; if there is a will, it shall be handled in accordance with the testamentary succession or bequest; If two or more of the testamentary heirs and bequest support agreements exist at the same time, the will can deny legal succession; the bequest support agreement can negate testamentary inheritance or bequest; Only when there is an agreement can it be handled according to the legal succession.

The "Opinions of the Supreme People's Court on Several Issues Concerning the Implementation (Inheritance Law of the People's Republic of China)" specifically stipulates that if the decedent has signed a bequest support agreement with others during his lifetime and has a will at the same time, after the succession begins, if the bequest support agreement and If there is no conflict in the will, the estate shall be dealt with according to the agreement and the will respectively; if there is a conflict, it shall be dealt with according to the agreement, and the will which is in conflict with the agreement shall be invalid in whole or in part.According to the above-mentioned provisions, the part of Fang’s uncle’s will concerning the ownership of the three houses by his daughter is invalid, and should be owned by Fang according to the agreement between Fang and his uncle’s bequest and maintenance agreement, and other estates should be owned by Fang’s cousin. testamentary succession.However, Fang should repay the funeral expenses paid by his cousin.Because of this obligation she failed to fulfill.

tips

The bequest parenting agreement can also be notarized to achieve greater evidentiary effect.The following certificates and materials are required to apply for a bequest parenting agreement:
1. The resident identity card of the party concerned and its photocopy or other identity certificates;
2. A certificate issued by the neighborhood committee, village committee or the unit where the bequeather lives;

3. If the supporter is a collective organization, the qualification certificate, the legal representative's identity certificate and its copy should be submitted; if the agent applies on his behalf, the agent should submit the power of attorney and the resident ID card and its copy;

4. Proof of property ownership and list of bequeathed property;
5. If the caregiver is married, the spouse shall submit a written opinion agreeing to conclude a bequest and support agreement;

6. The text of the bequeathed parenting agreement;
7. Other certificates and materials that the notary believes should be submitted.

65. What is the difference between a legacy support agreement and a general contract?
Jiang was old and frail, and signed a bequest and support agreement with his nephew A. Once chatting with a villager, an old man said that the agreement was a contract.Jiang felt that something was wrong, and wanted to know if this bequest and support agreement was different from ordinary contracts?
Analysis according to law
In essence, a bequest and maintenance agreement is a contract, so it has the legal characteristics of a contract, but it is different from a general contract. In summary, the differences between the two are as follows:
One is that the legacy support agreement has its own specific subjects and targets.The specific subject is the supporter and the person being supported, and anyone who has nothing to do with the bequest support agreement shall not be the subject of the bequest support agreement; the specific target is that one party accepts support from others, transfers his property, and the other party takes care of his life and death The obligation of burial and the right to receive inheritance.

Second, the time when the rights and obligations of the bequest support agreement are different from those of the general contract.There is a long time gap between the maintenance obligation performed by the support party and the inheritance rights he wants to obtain, and the general contract has immediate repayment, and it is also performed after a period of time.Generally speaking, the enjoyment and performance of rights and obligations are simultaneous, and corresponding obligations must be performed while enjoying rights.So the old man was only half right.

tips

Note that general contracts are regulated by the "Contract Law", while bequest and support agreements are mainly regulated by the "Inheritance Law", and the relevant provisions of the "Contract Law" should also be applied.

66. Which institution should be entrusted to inherit the overseas inheritance?What proof and documentation should be provided?

There was an old man surnamed Jia. Her husband B went abroad to make a living. She had no news for 4JD years, and she raised her two children alone.Last year, Jia learned that her husband died abroad and left $50.The long-term cohabitation with B abroad and the two children born to him also requested to inherit the inheritance.So, which institution should be entrusted with the inheritance of overseas inheritance?What documents and proofs are required?
Analysis according to law
Foreign-related inheritance refers to a legal system with foreign-related factors that transfers the property and other legal rights and interests of a citizen to others in accordance with the law when he declares his death. The so-called foreign-related factors in inheritance here refer to the law of inheritance Among the several elements of the relationship (subject, object, rights and obligations), at least one element is connected with a foreign country.Foreign-related inheritance includes the following basic situations:
1. The decedent is a foreigner;

2. The heir or legatee is a foreigner, or there are foreigners among the heirs or legatees;

3. The inheritance is in a foreign country;
4. The legal facts in the inheritance relationship (death of the decedent or the act of making a will before his death) occurred abroad.

In the above situations, only one factor in the inheritance legal relationship has a connection with a foreign country. What needs to be clarified here is that there must be at least one foreign-related factor in the foreign-related inheritance legal relationship, but there can be more than one foreign-related factor.

For foreign-related inheritance, the heir can directly entrust the Chinese Consulate General in the country to handle it.Because the main duty of the consulate is to safeguard the legal property rights and personal rights of its citizens and legal persons in the host country, the legal inheritance rights of heirs can generally be effectively protected through our consulates.However, the heir should provide as detailed proof materials as required.Such as the name, age, occupation, address before death, place of birth, date of birth, time and place of death of the decedent, the total value of the estate, whether there is a will, etc., and the proof of the relationship between the heir and the decedent, if required, with English or other languages For the text, the heirs should also be ready.If the heir is unwilling to handle foreign-related inheritance in person, he can also entrust a domestic agency to handle it.Bank of China currently handles the business of transnational inheritance inheritance. In addition, the heir can also entrust a law firm with the right to handle foreign-related business, and provide evidence and relevant documents according to their requirements.

Chinese citizens inheriting foreign heritage should at least provide notarized certification materials: (1) power of attorney.The power of attorney should state the name of the agent (the entrusted party)'s unit or individual, the entrusted matters, the authority and time limit granted to the agent, whether the agent can be transferred to the agency, etc., and finally signed or sealed by the entrusting party. (2) Certificate of inheritance right.The names of the decedent and the heir, the place and time of birth, the address of the heir, the address of the decedent before his death, the time and place of death, where the legacy is, whether the decedent has left a will, and the relationship between the heir and the decedent shall be written separately. Wait.In addition, some countries also require "certificate of marriage relationship" and "certificate of kinship relationship".

tips

The notarization of foreign-related inheritance rights is an activity in which the national notary agency legally proves the authenticity and legitimacy of the applicant's right to inherit the decedent's estate and the relevant compensation rights that should be obtained in the inheritance notarization with foreign-related elements.The parties applying for notarization of foreign-related inheritance rights must provide the following certification materials:

1. The legal heir should submit:

(1) The applicant's identity certificate (resident ID card, household registration booklet and its copy; if the applicant has left the country, a copy of the passport or valid travel document and pass should be submitted; if the account has been cancelled, it needs to be issued by the police station of the original place of residence proof of household registration record);

(2) A letter of proof of kinship between the applicant and the decedent and other heirs issued by the personnel (organization, labor and capital) of the applicant's unit; if there is no work unit, the sub-district office (township, town people's government) at the place where the original household registration is located Issuing a certificate; if the applicant is in school, the school shall issue a certificate; if the applicant’s unit does not have a human resources (organization, labor and management) department; the higher-level competent department of the unit shall issue a certificate; the guarantee of not abandoning the adopted person, etc.;

(3) If the agent applies on behalf of the applicant, a power of attorney, ID card and photocopy of the agent must be submitted;
(4) Certificate of property right of the decedent's estate;

(5) Death certificate of the decedent;

(6) Marriage status of the decedent, certificates of parents and children, and certificates of kinship;
(7) If the legal heir is dead, the death certificate and kinship certificate shall be submitted;

(8) Other certificates and materials that the notary believes should be submitted.

2. The testamentary heir should submit:

(1) The certificates and materials submitted in items 1 to 6 of the preceding paragraph;
(2) The will of the decedent;
(3) If the will of the decedent outside the territory is submitted, the will must be authenticated by the Chinese embassy or consulate;
(4) If there is an executor, the identity card of the executor and its copy should be submitted;

(5) Other certificates and materials that the notary believes should be submitted.

(End of this chapter)