文章分類Article
Inheritance | How do you write a legal will? How effective is a will?
.png)
A will ensures that property is distributed after death according to the wishes of the testator. In today's increasingly conscious society, more and more people understand the importance of pre-arranging their estate affairs. However, after the effort of making a will, are you sure it is legally valid? How should a legal will be made?
What is the legal order of succession as stipulated by law?
Before discussing writing a will, it's important to understand the basic legal order of succession. The order of succession refers to how an estate (property) is distributed according to the law in the absence of a will or other agreements. If the testator has specific wishes or requests, these are usually expressed clearly through a will to ensure the realization of the testator's distribution intentions.
Civil Code Stipulates
Article 1138 of the Civil Code states, "The heirs to an estate, besides the spouse, are determined in the following order: 1. Direct descendants (children). 2. Parents. 3. Siblings. 4. Grandparents."
For the spouse,Article 1144 of the Civil Code specifies, "The spouse has the right to inherit the estate, and their share of inheritance is determined as follows: 1. When inheriting alongside first-order heirs as specified in Article 1138, their share is equal to that of other heirs. 2. When inheriting with second or third-order heirs as specified in Article 1138, their share is half of the estate. 3. When inheriting with fourth-order heirs as specified in Article 1138, their share is two-thirds of the estate. 4. If there are no heirs from the first to fourth orders as specified in Article 1138, their share is the entire estate."
Reserved Portion
"Lawyer, my son is really unfilial, can I make sure he doesn't get a single penny?" Before drafting a will, lawyers usually discuss the distribution of the estate with the testator. A common question in these discussions is whether it's possible to leave an heir with nothing. Legally, to protect all heirs and prevent a specific one from monopolizing the inheritance due to favoritism (like the traditional practice of passing assets only to sons and not daughters), the system of a 'reserved portion' was established. This reserved portion is the minimum proportion of the estate that each heir is legally guaranteed to inherit. Essentially, even with a will, it's only possible to limit the heir to their reserved portion, not to completely disinherit them, unless that heir meets the legal criteria for losing their right to inherit.
Types of Wills
-
Having discussed the basic concepts of inheritance, let's share the types of wills. Under the Civil Code, there are five types of wills:
Holographic Will: As the name suggests, the testator writes the will by hand. It must be entirely handwritten, computer typing or other methods are not allowed. It must include the testator's signature and the date of the will. This type of will is strict in its requirements and carries higher risks. It's advisable to consult with a professional before drafting one.
-
Notarized Will: This involves notarizing the will through a notary public. The significance of notarization is to 'prove the existence of the will'. However, the notary may not necessarily review the legality of the will's contents. Compared to holographic wills, notarized wills have lower disputes, but if the content is illegal, the relevant clause may be invalid.
-
Allographic Will: This is the most common type of will in practice, usually drafted with the assistance of a lawyer. Before drafting the will, the lawyer will inquire about the testator's wishes and write the will accordingly. Since a lawyer (or other professional) is involved throughout the process, any risks or concerns with the will can be immediately addressed.
-
Sealed Will: The testator seals the handwritten will in an envelope, signs on the sealing, and has it certified by a notary public. This type is used when the testator does not wish to disclose the will's contents before death. It's rare in practice.
- Oral Will: Like the sealed will, it's a special and rare type, used in urgent situations the testator faces imminent danger to life or other emergencies. The testator orally dictates the will to at least two witnesses who record it. This method is only used when the other four types of wills are not feasible. It has the greatest controversy and highest risk.
Legal Procedure for Drafting an Allographic Will
WHP Estate Inheritance