Talk about civil code 144: knowing that the heir is dead without notifying other heirs, is sentenced to a small inheritance

Partnership Guide | Author: Li Li

This is the 914th text of Li Li's blog and partnership guide public account

"Talking about the Civil Code Series" is a note by lawyer Li Li who read the Civil Code

Talk about civil code 144: knowing that the heir is dead without notifying other heirs, is sentenced to a small inheritance

Article 1150 After the inheritance begins, the heirs who know of the death of the heirs shall promptly notify the other heirs and executors. If none of the heirs knows of the death of the heir or knows of the death of the heir and cannot notify him, the residents' committee or villagers' committee of the unit or domicile where the heir lived before his death shall be responsible for notifying him.

The provisions of Article 23 of the original Inheritance Law have been retained. Legally speaking, such notice is an obligation, and the breach of this notification obligation requires compensation for the loss of others. In practice, some courts have even used this as an excuse to reduce the share of succession of persons who have breached their notification obligations.

A grassroots court in Hubei Province had an inheritance dispute case last year (2020), and the judge wrote in the judgment:

...... According to Article 23 of the Inheritance Law of the People's Republic of China, "after the inheritance begins, the heirs who know that the heirs are dead shall promptly notify the other heirs and executors". Defendant Huang did not fulfill his obligation to promptly notify other heirs after the death of the heir Zhou. It was not until Wang died the following year that the plaintiff, as a sibling of the heir Zhou, learned of the fact that he had been dead for nearly a year. Defendant Huang did not fulfill his obligation to inform in a timely manner, and mentally and emotionally caused harm to the feelings of the heir Zhou's mother and other siblings. Later, when the plaintiff learned of the death of the heir and claimed to divide the estate, the defendant Huang did not cooperate and subjectively concealed the fact of the death of the heir in law. In summary, considering that defendant Huang X had a double deficiency in moral obligations and legal obligations, and the relevant behavior was obviously improper, according to Article 59 of the Opinions of the Supreme People's Court on Several Issues Concerning the Implementation of Enforcement, it was determined that defendant Huang should share less on the inheritance of the heir Zhou. This court determined that defendant Huang X inherited a 30% share of the estate of the heir Zhou X, and the plaintiff Zhou X A, Zhou X B and Zhou X C inherited a 70% share of the estate of the heir Zhou X. ......

Article 1151 A person who has an inheritance shall properly preserve the heritage, and no organization or individual may embezzle or compete for it.

In contrast to Article 24 of the original Inheritance Law, "any person" was replaced by "any organization or individual".

"Person who has a legacy" and "administrator of the estate" are two separate concepts. Of course, it is very likely that there are estate administrators who also happen to be the ones who have the inheritance.

Article 1152 Where, after the commencement of inheritance, the heir dies before the division of the estate and does not renounce the inheritance, the inheritance that the heir should inherit shall be transferred to his heirs, unless otherwise arranged in the will.

This is a provision for "transfer of inheritance", which is distinguished from "subrogation".

Article 1128 Where the children of the heirs die before the heirs, they shall be succeeded by blood relatives of the direct descendants of the children of the heirs. If a brother or sister of the heir dies before the heir, the children of the brother or sister of the heir shall inherit the throne by subrogation. Subrogated heirs can generally only inherit the share of the estate to which the subrogated heir is entitled.

"Unless otherwise arranged in a will" means that it can be made clear in the will that a person's succession is not applicable to succession.

Article 1153 Unless agreed upon in the division of property jointly owned by husband and wife, half of the jointly owned property shall first be divided into the property of the spouses, and the rest shall be the inheritance of the heirs.

Where the estate is in the common property of the family, the property of others shall be divided first when the estate is divided.

Where joint property is involved, the property shall be dismembered before the scope of the estate can be determined.

Article 1154 In any of the following circumstances, the relevant part of the estate shall be handled in accordance with legal succession:

The content of this article basically follows the provisions of Article 27 of the original Inheritance Law, but in the first case of (2), the expression "or the bequeathed person loses the right to receive the bequest" is added.

In the way of inheritance, if ranked according to the level of effectiveness, then from high to low are: bequest maintenance agreement, testamentary inheritance and bequest, and statutory inheritance. Legal succession is a "supporting" approach. This article provides for the scope of application of legal succession.

(1) The testamentary heir abandons the inheritance or the bequeathed person abandons the bequest;

Article 1124 of the Civil Code:

If the heir abandons the inheritance after the inheritance begins, he shall make a written expression of renunciation of the inheritance before the inheritance is disposed of;

The bequeathed person shall, within 60 days after becoming aware of the bequest, make an indication of acceptance or renunciation of the bequest;

(2) The testamentary heir loses the right to inherit or the bequeathed person loses the right to receive the bequest;

Article 1125 Where an heir commits any of the following acts, he shall lose the right to inherit:

(1) Deliberately killing the heirs;

(b) killing other heirs for the sake of competing for inheritance;

(3) Abandoning the heir, or abusing the heir in serious circumstances;

(4) Forging, altering, concealing, or destroying a will, where the circumstances are serious;

(5) Using fraud or coercion to compel or obstruct the heirs from establishing, modifying or withdrawing a will, where the circumstances are serious.

If an heir commits the acts mentioned in items 3 to 5 of the preceding paragraph, and indeed shows repentance, and the heir expresses forgiveness or lists him as an heir in his will afterwards, the heir shall not lose the right to inherit.

Where the bequeathed person commits any of the acts provided for in paragraph 1 of this Article, he shall lose the right to receive the bequest.

(3) The heirs or bequeathed persons of the will die or are terminated before the testator;

If there is no will or bequest, but in the case of legal succession, where the heir dies before the heir, Article 1128 of the Civil Code has a provision for subrogation.

"Termination" corresponds to the fact that the bequeathed person is not a "natural person" but an "organization".

(4) the estate involved in the invalid part of the will;

"Invalid part", which means that the will can have both valid and invalid content, and does not invalidate other parts of the will because some of the content is invalid.

(5) Estates that have not been disposed of in a will.

There are usually two reasons for this to happen: one is that the testator himself only wants to make a will on part of the estate, and the other is that the testator forgets or neglects to include a part of the property in the scope of the will.

Article 1155 When an inheritance is divided, the share of the fetus's inheritance shall be retained. If the fetus is dead at the time of delivery, the retained share shall be handled in accordance with the legal inheritance.

Article 16 of the Civil Code stipulates that "where the protection of the interests of the fetus is involved in inheritance, acceptance of gifts, etc., the fetus shall be deemed to have the capacity for civil rights." However, if the fetus is dead at the time of delivery, its capacity for civil rights does not exist from the beginning. ”

In contrast to Article 28 of the original Inheritance Law, "when the fetus is born" is changed to "when the fetus is delivered".

If the fetus is alive at the time of delivery and then dies, the share of inheritance reserved for the fetus becomes the inheritance of the child, which shall be inherited by his legal heirs in the manner prescribed by law.

Article 1156 The division of an estate shall be conducive to the needs of production and daily life and shall not impair the utility of the heritage.

Estates that are not suitable for division may be disposed of by means of discounting, appropriate compensation or co-ownership.

Currently, if there are multiple heirs involved in the inheritance of the house, the court will rule that the house is listed as the share of each heir. The Interpretation of the Supreme People's Court on the Application of the Inheritance Part (I) of the Civil Code of the People's Republic of China also provides that": "Article 42 When dividing up the houses, means of production and property required for specific occupations in the estate, the people's courts shall handle it on the basis of the benefits conducive to their use and the actual needs of the heirs, taking into account the interests of each heir." ”

Article 1157 Where the other spouse remarries after the death of one of the spouses, he has the right to dispose of the inherited property, and no organization or individual may interfere.

This clause clearly has a historical twist. Of course, it is not entirely historical, and in some individual areas there may be a phenomenon of obstructing divorced women from remarrying.

Article 1158:Natural persons may sign bequest support agreements with organizations or individuals other than heirs. According to the agreement, the organization or individual undertakes the obligation of the natural person to raise the dead and bury, and enjoys the right to receive the bequest.

The word "agreement" indicates that the bequest maintenance agreement is a content that requires the mutual consent of both parties, and is a civil juristic act of both parties, not a unilateral civil juristic act like a will. Since it is a paid double-service agreement, neither party can terminate the agreement at will. The Interpretation of the Supreme People's Court on the Application of the Inheritance Part of the Civil Code of the People's Republic of China (I) stipulates: "Article 40: After an organization or individual other than an heir signs a bequest maintenance agreement with a natural person, if it fails to perform without a legitimate reason, resulting in the termination of the agreement, it cannot enjoy the right to receive the bequest, and the support fees paid by the bequest shall generally not be compensated; if the bequest fails to perform without a legitimate reason, resulting in the termination of the agreement, it shall reimburse the support fees paid by the organization or individual other than the heir." ”

Article 1159 The division of an estate shall be to pay off the taxes and debts that the heirs shall pay in accordance with the law; however, the necessary estate shall be retained for the heirs who lack the ability to work and have no means of subsistence.

This is the third time that the Succession Section of the Civil Code refers to the appropriate protection of "heirs who lack the ability to work and have no means of subsistence". The first two clauses are:

Article 1130 The share of the inheritance inherited by heirs in the same order shall generally be equal. Heirs who have special difficulties in life and lack the ability to work shall be taken care of when distributing the inheritance. ......

Article 1141 A will shall retain the necessary share of the estate for heirs who lack the ability to work and have no means of subsistence.

Article 1160 An inheritance that no one inherits or has not been bequeathed shall be owned by the State and used for public welfare;

Special procedure for determining the property as unowned on the basis of application through the confirmation of the court.

Article 1161 The heirs shall pay off the taxes and debts that the heirs shall pay in accordance with law to the extent of the actual value of the estate they have obtained. The portion exceeding the actual value of the estate shall not be paid back voluntarily by the heirs.

Where the heir abandons the inheritance, he may not be liable for the taxes and debts that the heirs should pay in accordance with law.

With regard to the abandonment of inheritance, the Interpretation of the Supreme People's Court on the Application of the Inheritance Part of the Civil Code of the People's Republic of China (I) stipulates as follows:

Article 33 An heir who renounces his or her inheritance shall express it in writing to the administrator of the estate or other heirs.

Article 34: In litigation, where heirs orally express their renunciation of inheritance to the people's court, a record shall be made and signed by the person who has renounced the inheritance.

Article 35 An expression of the heir's intention to renounce inheritance shall be made after the inheritance has begun but before the division of the estate. After the division of the estate, it is no longer the right of inheritance that is waived, but the ownership.

Article 36 Where, before the disposition of an estate or during litigation, the heirs repent of abandoning the inheritance, the people's court shall decide whether to recognize it on the basis of the specific reasons put forward by the estate. After the estate is disposed of, if the heirs repent of abandoning the inheritance, they will not recognize it.

Article 37 The effect of renouncing inheritance shall be traced back to the time at which the inheritance began.

Article 1162 The execution of a bequest shall not prevent the repayment of the taxes and debts that the bequeath shall pay in accordance with law.

Paying taxes and repaying debts is better than executing a bequest.

Article 1163 Where there are both legally prescribed inheritance and testamentary inheritance or bequests, the legal heirs shall pay off the taxes and debts that the heirs shall pay in accordance with law; the part exceeding the actual value of the legally inherited inheritance shall be paid by the testamentary heirs and the bequeathed persons in proportion to the income.

This article incorporates the provisions of the judicial interpretation of the original Inheritance Law.

The order of repayment of the debts and taxes payable by the heirs is "first legal heirs, then testamentary heirs and bequeathed persons", which embodies the legislative principle that testamentary succession and bequests take precedence over statutory inheritance.