Things Expats Often Misjudge when picking a country to live in — Part 8.1
What happens to your owned (or not actually owned) property when you die
This Substack is about life in Vietnam from the viewpoint of a 10-year expat who spent his first 60 years in a low-context culture.
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Note:
The previous version of this post — Part 8 — had some bad information regarding wills because I misremembered what my attorney told me four months earlier about wills. I took “you can’t” to mean “no foreigner can.” There’s more, all of which is clarified below.
I sincerely apologize.
This post has the corrected information.
I also feel, after re-reading what follows, the need to clarify that my mistake was assuming (yes, I know) that things here re the law were at least somewhat similar to how they are in the US and NOT doing sufficient research — I leapt before I looked. Please do differently than I.
Yeah, it’s a downer thinking about what’s gonna happen to your carefully curated stuff once you’re on to whatever (if anything) is next after life on the third rock. Don’t let your heirs wish you had.
I have art from many different countries; professional photos I took, some of which have a twin in the Museum of Flight; writings; computers; furniture that apparently only I appreciate; and more. I hope my daughter keeps at least a few things and waters the plants, but in the end, it’s up to her. I want her to have options.
The one thing I do fret a bit on is the bespoke house that I so painstakingly designed and supervised the building of. In the US, whose passport I hold, it’s very simple — I write a will; get it notarized; give it to the person I’ve chosen as executor/executrix of my estate; and get on with my life, knowing that my wish that upon my death my wonderful daughter inherits my half of the house will come true.
It can be somewhat similar here in Vietnam, though it’s a bit more complicated, as I will explain.
It’s always best to have a will…
Foreigners here cannot own land. Apartments or condos are okay because they are ownership of a portion of a building, not the land it’s on. If you own an apartment or condo, you can be on the Red Book (deed) and put it in your will.
Our house is freestanding, land included, so I cannot be on the Red Book. Unfortunately, according to a very well-respected Saigon-based lawyer I spoke with,
You will not be able to do {notarize} the will… because you are not on red book.
DAMN!
As if that’s not enough, there is a further multiplier on the degree of difficulty…
Any will anywhere, to be recognized by the government, must be notarized.
AND… according to the attorney, if you are a foreigner and there exists a Red Book with your name on/in it:
…not so many notary public offices will agree to notarize it… the one on Tran Nao street, D2 {Saigon} is literally the only one that accepts to do notarization of a will of a foreigner in Vietnam;
The will of a foreigner MUST be notarized by a notary office in Vietnam (despite the law stating that will can be even verbal or without notarization);
The reason is very simple: the bank will demand to see the Declaration of Estate after your demise.
And for a foreigner's will, then the Declaration of Estate can only be obtained at a Notary Public Office;
So if you, a foreigner, have a will in Vietnam, but it is not notarized, then your family cannot obtain a Declaration of Estate after your demise, and because you cannot provide the bank with a Declaration of Estate, the bank will refuse your Vietnamese will.
Therefore, if you want your Vietnamese will to be effective, you need it to be notarized. Otherwise, legalize your foreign will to use in VN, the bank will accept that.
If you die without a will, it’s called “intestate”. In the United States, where I already have a will, dying intestate means the state you live in decides how your estate is divided amongst your heirs. This is also true in Vietnam, thought it’s “same same, but different.”1
The reason I wrote this article is that Vietnamese law dictates that if you die intestate, which most people do, the property is divided among your immediate family to one generation, both older and younger. I know very few expats who know this.
Both foreigners and Vietnamese should understand how their property is distributed if they die intestate. The ONLY thing they can do to change it is have a notarized will.
Since I am not in the Red Book and they will not notarize a will for me that includes the house, I will be among those who die here intestate. If I die before my wife and then she dies before my daughter becomes of legal age, what Vietnamese law dictates is NOT what I want.
Talk to the hand.
It’s Việt Nam!
The lawyer did say that I could write a will in my home country, give a copy to my wife, and maybe she will follow it.
Uh, yeah.
No, he’s not met her.
The Law Says…
Even though foreigners can’t own land and only my wife’s name is on the Red Book (deed), if I can prove that I paid to have the house built, I have a legal claim to a percentage of both because the land and the house came to us after the marriage. Think “community property”… sort of. If I don’t have a signed agreement (which I didn’t know I needed until today) with my wife stating that we co-own the house, and she decides to keep the house and throw me out, I will have to go to court to assert my claim.
Yes, I know…
My daughter (H) is actually still my stepdaughter because the adoption attorney we hired absconded with the money we paid him. This means that our nine-years-together-so-far mean nothing to the government. H is not recognized as my heir and therefore does not enter into the government’s survivor distribution calculations. If I die first, her mother gets my 50% of the property. If the scumbag adoption attorney (redundant, I know) had done what I paid him to do, H and her mother would each get 25%. This may not seem like a big deal because of the mother/daughter relationship dynamics in Vietnamese culture, but depending on how future events fall, it might be HUGE. I will explain shortly, though not briefly.
In a previous post, I talked about Vietnamese family culture and how the children are expected to take care of the parents until death.
Vietnamese culture dictates that when children are grown, they will give their parents monthly monetary gifts as “repayment” for the parents raising them. It matters not if the child has a menial job and the parents are relatively well-off. In fact, many parents will stop working once the children start sending money home.
The government has insured this will continue after the adult child’s death through the laws governing distribution of real property (land and housing). If a child dies owning property and their parents are still alive, by law the parents get a percentage of it. This actually makes sense, due to the complete lack of any social safety net outside the immediate family. I’d prefer that when the parents die the share they got upon the death of their child reverts to their grandchildren whose parent owned the property… but no one asked me.
Let’s get into what happens to an expat who co-owns property here when their native spouse dies first. Since it’s mostly foreign men who marry Vietnamese women and not the opposite, we’ll use that example with the man surviving. When a Vietnamese property owner dies, their portion of the property is, by law, split evenly between their surviving parents, their spouse, and their children.
If they had a wedding party to tell the community they’re “married”, but never filed papers with the government, he gets nothing.
If she still owns property obtained before the marriage, upon her death, the foreign husband gets an equal share of the total with all of her children and her surviving parents.
If the property was obtained after they married and he can prove that he paid toward it, they own it jointly (even if he paid 100%) and upon her death, he gets the property. According to the attorney, this is a “very special and rare case” in which VN law allows a foreigner to have sole ownership.
Why I lose sleep at night
Earlier I said,
This may not seem like a big deal… but depending on how future events fall, it might be HUGE.
Let’s get into that.
My family includes a VN wife, a foreigner husband, and a child from the wife’s first marriage who is not adopted by the husband. The wife’s parents are both still alive, as are her three siblings.
The red “X” in the document below indicates a death.
From the top, assume the wife and husband each have 50% of the house/property. If husband dies first, the wife gets his 50%.
If the child is biologically his or legally adopted, the wife and the child would each get 25% for a total of 75% and 25% respectively. That’s NOT my situation; if it’s yours, the math is fairly simple.
If the wife then dies and both her parents are living, the child and its two grandparents split the property equally, each getting 1/3 (33.33%). If only one grandparent, it’s 50-50.
When one grandparent dies, their 33% gets split evenly between their surviving spouse and their kids (aunts and uncle to the child).
When the second grandparent goes, their children split the 66.67%.
For me, this is a “me dying first and my wife also dying before my daughter turns 18” scenario. In it, my daughter never gets to the 50% she needs to guarantee she keeps the house. It breaks my heart that I am almost certain those who, in this scenario own 66.67% will eventually force my daughter out of the house I built solely to give her a nice place to live and raise future generations,
All because I learned the law too late.
Her mom says her siblings and their kids wouldn’t do this, but screwing my daughter out of her inheritance would give them a relative palace, but that gives me little peace; one definitely would, one might, and the third probably wouldn’t. She would only need one aunt or uncle — each of whom currently owns a home — to save her, but there’s no way I want to bet my daughter’s house on it.
There are two ways I know of that will allow her to keep the house after her mother and I are gone. The first is,
If her mother dies first, I get sole ownership as stated above.
The second way around this is:
Put H on the Red Book as co-owner as soon as she turns 18. Her mom and I have had this conversation more than once, but follow-through is NOT her mom’s superpower. In an attempt to motivate her to do this as soon as H is 18, I’ve threatened that if I’m already gone, I will come back as a ghost and haunt her horribly and relentlessly until it is done. You may be laughing, but ghosts are a thing in VN culture.
This way, if my daughter loses both parents before both grandparents, she will have at least 2/3 ownership and complete control.
Worst Case
Jumping back to #4 above where H has only 33%, her aunts/uncle/cousins could force her out and take it for themselves. The only way she would get anything is if they sold, but that’s doubtful. She could be literally out on the street while her relatives enjoy the house I sacrificed to build for her.
Yes, I know I should have a better opinion of my in-laws, but I don’t.
There’s also the issue of making sure H and NO ONE ELSE gets my percentage of the house when I go.
If you already own property in Vietnam, have children, and haven’t already figured out what they’ll have when you’re gone, please do it soon.
One Final Point
If you buy or build in Vietnam, keep the paperwork from any wire transfers from a foreign account; copies of applicable local bank statements; receipts from any and all related expenses; and a ledger showing everything in and out. You will need this if you’re ever called on to prove your financial contributions, e.g. if you divorce or your wife or other family members contest your claims of ownership.
Without these, you could lose everything, because (say it with me)
It’s Việt Nam!
For those who are not familiar with Vietnam, “same same” is understood by most Vietnamese, especially those in retail to mean “similar”. Most tourists and short-timers hear it when a shop owner shows them something different than what they want — for example blue pants when they want brown — and says, “same same”. The foreigner thinks it means “the same”, so “Same same, but different” is a popular t-shirt among tourists.
I use it when I show a photo or an actual item to a shop owner to tell them what I want. They take the showing as “I want exactly this thing” and will say they don’t have it even if they have something very close. For example, if I show them a red object and they only have blue, they will say they don’t have it. When I say “same same” as I show it, they will offer similar items.