Dear Hadrien,
I am an American citizen living and working in Ho Chi Minh City. I want to know what I should do if the unthinkable happened to me… How can I create a will to ensure that if I die here, the savings that I have in my Vietnamese bank account will go to my family in the US?
Generally speaking, civil matters involving a foreign element, such as inheritance from a person not residing in his or her country of citizenship, can be complicated.
The first step to answering your question is to determine which law is applicable to the inheritance. As an American citizen living in Vietnam, there are two legal systems to consider: Vietnamese law and US law. The application of one or the other depends mainly on the territory where the will has been written.
Assuming that the assets subject to your inheritance are, for most if not all, located in Vietnam, the entities and people that shall proceed with the transfer of your assets in accordance with your will are in Vietnam and governed by Vietnamese law (such as your bank). As a matter of practice, they will be more likely to accept and apply Vietnamese law to your inheritance than any other law.
To avoid any risk of confusion and challenges by such Vietnamese entities and people of the validity of the choice of US law as the law applicable to your inheritance (on the ground that the will was created in the US), we advise that your inheritance is governed by Vietnamese law, which implies creating your will in Vietnam.
In a situation like yours, the Vietnamese Civil Code provides that the law of the country of your citizenship (e.g. US law) will determine your legal capacity to create, change and revoke a will but that Vietnamese law, however, will rule on the matter of the form of the will as well as the matter of the change and/or the termination of the ownership rights over your assets.
The legal capacity of a person determines whether he or she may make binding amendments to their rights, duties and obligations, such as getting married or merging, entering into contracts, making gifts, or writing a valid will. You will need to obtain confirmation from a competent US lawyer that you indeed have legal capacity to write a will but, until then, you can assume that you are capable to do so.
Distribution of Assets
As for the matters of the form of the will and transfer of your assets, Vietnamese law, like many other legal systems around the world, makes a distinction between “testate inheritance,” which applies when a person has made a will, whereby that person called the “testator” decides to whom his or her assets will be transferred to when passing away, and “inheritance at law,” which applies when no such will has been made or when an existing will is unlawful. In the latter case, Vietnamese law provides guidance on how to distribute the assets between successors.
As a testator, you can make a will to express how you would like to bequeath your property that is located in Vietnam. Among other things, you will have the right to appoint “heirs”: to determine to which parts of your assets those heirs will be entitled to, to reserve a part of your assets as a gift, to designate heirs to perform certain obligations, and to appoint a custodian of your will (e.g. a notary public), as well as a manager and a distributor of your assets.
Now what should a will look like? In principle, a will must be made in writing. Under Vietnamese law, you are free to choose whether you want the will to be witnessed or not and whether or not you would like it to be notarized or certified. In either case, a will must clearly specify: the date on which it is made, the full name and place of residence of the testator, the full names of the people or organizations entitled to inherit an asset or any specific conditions that those individuals or organizations would have to satisfy in order to inherit an asset, the asset to be bequeathed, its location and the appointment of people to perform certain obligations regarding the asset and the content of such obligations. Furthermore, a will may not contain abbreviations or other symbols and if a will consists of several pages, each page must be numbered and bear the signature or the fingerprint of the testator.
Movable Property
The savings that you have in your Vietnamese bank account qualifies as movable property located in Vietnam and in your will you may stipulate that those savings should be distributed to your family in the US. Under Vietnamese law, it is explicitly provided that foreigners with a lawful foreign currency resource are entitled to remit their foreign currency abroad. Assuming that you have a lawful source of money in Vietnamese dong and that you complied with all your tax obligations, your money may validly be converted into US dollars and remitted to the US should your will so provide.
Please note that the situation would be a bit more complicated if your inheritance also includes immovable property. Without going into too much detail, when foreign citizens inherit immovable property in Vietnam, as a general rule the property must first be sold and the designated heirs can only inherit the corresponding value.
It is important to know that under Vietnamese law, certain heirs are protected. This means that regardless of your will as a testator, any minor children, adult children incapable of working, your father, your mother and your wife or husband will be entitled to claim a certain portion of the inheritance. Furthermore, a husband and wife may choose to jointly make a will regarding their shared assets. At the same time, certain people are excluded from inheriting, such as those having seriously breached their duty to support the deceased.
So, if you want to be sure that your family in the US will receive your savings in case anything were to happen to you, making a will in Vietnam would be advisable. Even though it is not required under Vietnamese law, I would further suggest you visit a notary public who can help you prepare your will in accordance with the law and who can notarize and keep custody over it for you. If there is ever a dispute regarding your will, a notarized will could make proceedings before a competent civil court of Vietnam much easier. in the meanwhile, please stay healthy and safe!
A member of the Paris Bar, Hadrien Wolff has been practicing law in Vietnam for six years, currently as a partner of Audier & Partners. He specializes in banking and corporate law, regularly advising major foreign banks and assisting foreign investors in setting up joint venture companies with Vietnamese partners in sensitive sectors such as media, power and natural resources.
If you have any legal questions you want answered, send them to legal@oivietnam. com
