Question:
When I was 4 years old, my parents separated and did not have a divorce certificate. I lived with my grandmother. When I was 10 years old, my father passed away. My uncle took my father's house. Later, I don't know how my uncle got the red book of the house in his name. So can I take back my father's house? Before he passed away, my father did not have time to write a will and transfer the inheritance, and my mother remarried.
Reply:
With the information you provided, we would like to give the following advice:
Case 1: Suppose the property attached to your father's land has a land use right certificate in your father's name (formed before the marriage), then after your father passes away, the time of inheritance will be formed. In addition, your father did not leave a will nor did he give it to you, so this property will be inherited according to the law.
Pursuant to Article 611 of the 2015 Civil Code, the time of opening inheritance is the time when the property owner dies. In case the court declares a person dead, the time of opening inheritance is the date determined in Clause 2, Article 71 of this Code.
Pursuant to Point a, Clause 1, Article 651 of the 2015 Civil Code, legal heirs are determined in the following order: First order of heirs includes: wife, husband, biological father, biological mother, adoptive father, adoptive mother, biological children, and adopted children of the deceased.
Because the data you provided is that your parents are divorced but the court has not yet decided, in principle your mother is still the wife recognized by law. Thus, your mother, you and the first-line heirs will have equal rights and obligations.
Case 2: Suppose the property attached to the land has a land use right certificate in the name of both your parents or is a joint property formed during your parents' marriage, then this property is considered the joint property of your parents. When your parents divorce but do not have a divorce certificate, your parents are still legally married.
Pursuant to Article 66 of the 2014 Law on Marriage and Family, which deals with the property of spouses in the event that one spouse dies or is declared dead by the court, when there is a request for division of inheritance, the common property of the spouses shall be divided in half, except in cases where the spouses have an agreement on the property regime.
The property of a spouse who dies or is declared dead by the court shall be divided according to the provisions of the law on inheritance.
Thus, your mother will have half of the house as property. Your deceased father's share will be divided according to the law.
In this case, if you want to reclaim the house from your uncle, you have the right to file a lawsuit with the competent People's Court to request the cancellation of the land use right certificate in your uncle's name and request the division of the inheritance because you are in the first line of inheritance according to the law.
The statute of limitations for requesting division of inheritance will be 30 years for real estate according to Clause 1, Article 623 of the 2015 Civil Code.
Lawyer Diep Nang Binh - Head of Tinh Thong Luat Law Office.
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