Division of Inherited Property in Vietnam: When Co-Heirs are Absent

Inheritance relations are among the areas of law most closely connected to each family, as they directly affect property ownership rights and the entitlements of family members after a person’s death. Inheritance disputes often arise from differences in understanding, management, and division of the estate—particularly when some heirs are absent, residing abroad, or cannot be located. These situations create difficulties in resolving cases and risk prolonged disputes that affect the lawful rights and interests of all parties involved.

Precedent No. 06/2016/AL of the Council of Judges of the Supreme People’s Court provides unified guidance for resolving inheritance disputes when one or more co-heirs are absent. This article analyzes the core contents of the precedent, clarifies key legal issues, and draws out important practical notes for application in similar cases. It also shows how Vietnamese law balances protecting the rights of those present with preserving inheritance rights for those who are absent.

1. Case Summary
The case in Precedent No. 06/2016/AL arose from a dispute over inheritance rights concerning the house located at number 66 Đồng Xuân Street, Hoàn Kiếm District, Hanoi. This property was jointly created by Mr. Vũ Đình Quảng and Mrs. Nguyễn Thị Thênh. They had a total of six children, three of whom were Mr. Vũ Đình Đường, Ms. Vũ Thị Cẩm and Ms. Vũ Thị Thảo who settled abroad, while the remaining three were Mr. Vũ Đình Hưng, Ms. Vũ Thị Tiến also known as Hiền, and Ms. Vũ Thị Hậu who resided in Vietnam. After Mr. Quảng who passed away in 1979 without leaving a will and Mrs. Thênh who passed away in 1987 died, the three children living in Vietnam unilaterally divided the house into three parts. Subsequently, Ms. Tiến and Ms. Hậu sold their respective portions to outsiders without the consent of the heirs residing abroad,  leading Mr. Hưng to file a lawsuit requesting lawful division of the estate..

The case encountered significant difficulties because the heirs abroad could not be located, creating obstacles in serving procedural documents, collecting testimonies, and carrying out judicial entrustment. For years, the courts repeatedly requested Mr. Hưng to provide death certificates and addresses of the heirs abroad, but he could not. The case was prolonged and repeatedly suspended or retried. It was only conclusively resolved when the Council of Judges of the Supreme People’s Court conducted a cassation review and issued Decision No. 100/2013/GĐTDS, establishing the legal viewpoint on resolving inheritance disputes when heirs abroad cannot be located.

2. Main Legal Issues in the Precedent
2.1. The Legal Concept of Inheritance Disputes Involving Heirs Abroad
Precedent No. 06/2016/AL originates from the particular circumstances of the heirs: while the disputed property is real estate located in Vietnam, some lawful heirs had settled abroad with unknown addresses. Legally, this situation is considered a civil case with foreign elements, subject to the Civil Procedure Code, the Civil Code, and related legal instruments such as the Law on Mutual Legal Assistance.

The inability to verify the addresses of heirs leads to difficulties in serving procedural documents, obtaining opinions, and determining the positions of the parties involved. If not resolved thoroughly, such disputes risk leaving the property unmanaged for a long time, thereby affecting the lawful rights and interests of both the claimant and the absent heirs.

2.2. The Role of Judicial Entrustment, Evidence Collection, and the Court’s Duty of Verification
In civil proceedings, the duty to prove and verify the identity, address, and opinions of the heirs is of utmost importance. The precedent makes clear that when a party cannot provide the address or evidence regarding the status of heirs abroad, the Court must proactively carry out judicial entrustment.

The process of judicial entrustment involves several steps: the district or provincial People’s Court prepares the entrustment dossier and submits it to higher authorities or relevant agencies, in coordination with the Ministry of Justice, the Ministry of Foreign Affairs, and Vietnamese diplomatic missions in the host country. If the foreign country has signed an international treaty with Vietnam, the procedure is prioritized under such agreements. However, in practice, verifying addresses, serving documents, or obtaining testimony from heirs abroad often encounters many obstacles: complicated procedures, lengthy timeframes, lack of uniform guidance, non-cooperation of parties, or loss of contact.

Precedent No. 06/2016/AL stipulates that if, after duly carrying out judicial entrustment and evidence collection, the address of heirs abroad still cannot be identified and they cannot be reached, the Court must not use this as a reason to suspend the case. Instead, the Court must continue to resolve the request for inheritance division, ensuring the lawful rights of the remaining parties.

2.3. Legal Basis for Dividing Inheritance in the Absence of One or More Heirs
The situation addressed in Precedent No. 06/2016/AL is distinctive in that lawful heirs may have unknown addresses and cannot confirm their intention to accept or renounce the inheritance. Conducting proceedings in the absence of such parties is consistent with practical needs, but the division of the estate and the establishment of ownership cannot simply allocate the property entirely to those present, as this could infringe upon the lawful rights of the absent heirs and their successors by representation, if any.

The precedent establishes a mechanism described as “temporary but safe”: the portion of the estate belonging to absent heirs with unknown addresses is temporarily entrusted to those residing in Vietnam for management, to be returned later to the absent heirs. This approach both protects the lawful rights of absent heirs or their successors in the future and ensures the stability of the property, avoiding endless disputes.

2.4. Responsibility for Providing Information and Reaffirming the Burden of Proof
Another important point in the precedent is the determination of who bears the responsibility for providing information. The first instance court erred by requiring the claimant, Mr. Hưng, to provide the names and addresses of the buyers of the house portions sold by the defendants, Ms. Tiến and Ms. Hậu, or of the children of Mr. Đường and Ms. Thảo abroad. The precedent affirms that the duty to provide such information belongs to the directly related parties (those who sold the property, successors by representation, etc.), not the claimant. Imposing such a burden on the claimant could result in injustice, deprive them of access to justice, and prolong civil proceedings.

2.5. Ensuring Practicality, Reference Value, and Guiding Role of the Precedent
Precedent No. 06/2016/AL is a landmark decision, as it not only resolved a specific inheritance dispute but also serves as a guiding document, helping courts at all levels unify their approach to similar cases. At the same time, it contributes to the improvement of the civil procedural legal system, particularly in situations involving cross-border elements and new practical issues related to the Vietnamese community abroad.

3. Important Notes When Applying This Precedent in Practice
3.1. Procedural Order and Formalities
In situations where an heir is absent and their address cannot be identified, the first requirement for the Court is to proactively carry out all necessary steps of verification, judicial entrustment, and evidence collection. The Court may post public notices at the last known place of residence, notify through diplomatic missions, mass media, or apply other lawful methods of service as provided in the Civil Procedure Code.

Judicial entrustment may be carried out through various channels: diplomatic missions, international postal services, or competent authorities of the host country (if Vietnam and that country have signed a treaty on mutual legal assistance in civil matters). If, despite maximum efforts, the address still cannot be identified, the Court has both the authority and the responsibility to continue resolving the claimant’s request, and must not wait indefinitely or suspend the case solely due to procedural difficulties.

3.2. Right to Initiate Proceedings and Burden of Proof
The claimant is not required to bear the impossible obligation of locating evidence or death certificates of heirs abroad if the confirmations and information they provide are reasonable and consistent with the actual circumstances. The Court should only request additional evidence or addresses when there is a practical or legal basis in the case file, in order to avoid abuse of procedure that could cause inconvenience and obstruct access to justice.

This reflects a progressive development in current legal thinking: the burden of proof is reassigned to the party who actually has the ability to provide the information (usually the seller, the transferor, or the party directly involved in the transaction). The Court must conduct objective verification and must not impose responsibilities on the claimant that exceed their capacity.

3.3. Principle of Fairness and Protection of Lawful Rights in Estate Division
Entrusting the property is considered a temporary solution, whereby the portion belonging to the absent heir is preserved so that they, or their successor by representation if they have passed away, may later receive it in accordance with the law. During the division process, the estate portion of the heir residing abroad is still determined in its material value and preserved in its original condition.

The Court has the responsibility to appoint a person who is lawfully residing and directly managing the property at the location of the real estate to safeguard it. That person is not permitted to arbitrarily dispose of, sell, transfer, or use the property for personal purposes beyond protecting the lawful rights of the absent heir.

3.4. Ensuring Long-Term Value and the Principle of “Preserving the Right to Inherit”
The precedent emphasizes that the temporary entrustment of property is to ensure that the rights of the absent heir are not lost. This is particularly important because, in practice, many heirs go abroad for reasons such as labor, study, or as refugees and exiles, making their addresses untraceable for long periods of time. If the Court were to treat this as a reason to exclude them from the list of heirs, the lawful rights of millions of migrants, exiles, and even domestic citizens (who may be missing or out of contact) would be violated. Therefore, their share of the estate is not removed from the inheritance pool but is preserved and entrusted to persons in Vietnam under strict legal measures until it can be returned to the rightful owner or their successor by representation.

4. Application of the Precedent in Practice
Inheritance disputes where heirs are absent abroad and their addresses cannot be identified:
In many cases, one or several heirs have settled abroad for a long time and no longer maintain contact with their families. The Court is usually required to carry out judicial entrustment procedures to verify addresses and send notifications, but if after several attempts no result is obtained, the case risks being stalled. Precedent No. 06/2016/AL allows the Court to continue resolving the case without waiting indefinitely, thereby ensuring the rights of the other heirs and avoiding prolonged disputes.

Cases where heirs are absent and their residence addresses within the country cannot be identified: 
The precedent is not only applicable to heirs abroad but also to situations where heirs reside in Vietnam but have left their place of residence without leaving an address and cannot be contacted (for example, a child who has left home for many years, with the family unaware of their whereabouts and the local authorities confirming no information). In such circumstances, the Court may still resolve the inheritance division without waiting for a declaration of missing status.

Heirs who are absent, cannot be contacted, but do not meet the legal conditions to be declared missing or deceased:
According to the Civil Code, declaring a person missing or deceased requires a certain period of time and specific legal procedures. However, in practice, there are cases where heirs have been absent for many years but do not yet meet the legal conditions for such declarations. The precedent allows the Court to proceed with adjudication without suspending the case, thereby protecting the rights of the other heirs.

Heirs who are foreign nationals, Vietnamese citizens who have lost their nationality, or successors by representation:
The precedent also extends its scope of application to heirs who are foreign nationals (for example, children of the deceased who have acquired foreign nationality), Vietnamese citizens who have lost their nationality, successors by representation (grandchildren inheriting the share of their deceased parent), and interested parties who wish to preserve their right to inherit in the future. In these cases, if such persons are absent and cannot be contacted, the Court may still resolve the case to ensure the stability of inheritance-related legal relations.

5. Outstanding Issues and Challenges in Practical Application
Precedent No. 06/2016/AL has opened an important pathway for resolving inheritance disputes involving absent heirs. However, when applied in practice, there remain several outstanding issues and challenges.

Distinguishing between material value and the value of inheritance rights:
Another challenge lies in determining the entitlements of absent heirs when they return or when successors by representation appear. If the property has already been divided in kind, restoring it to its original state is nearly impossible. On the other hand, if division is made in monetary value, the question arises as to whether the valuation should be based on the time of the opening of succession, the time of division, or the time when the absent heir returns. The lack of consistency in this determination may lead to divergent judgments in similar cases, creating difficulties for both the Court and the parties involved.

Legal validity of powers of attorney and inheritance transfer documents:
In practice, many absent heirs may issue powers of attorney authorizing others to manage or receive their inheritance. However, such documents are often only copies or photocopies, lacking notarization or certification. Current law does not provide uniform regulations on the legal validity of these documents, leading to uncertainty as to whether the Court should recognize them. If recognized, clear criteria are needed to assess their legality; if not recognized, the rights of absent heirs may be seriously affected.

Legal consequences regarding the statute of limitations for inheritance rights:
Another unresolved issue concerns the statute of limitations for inheritance in cases where heirs have been absent for many years. If they fail to confirm their rights within a reasonable period, should this be considered a renunciation of inheritance rights? If there are no eligible successors by representation, how should the estate be handled and transferred to the State or redistributed among the remaining heirs? At present, the law provides no specific guidance, making the application of the precedent in such situations difficult. This highlights the need for legislative supplementation or the issuance of guiding documents to ensure consistency and stability in judicial practice.

6. Recommendations for the Claimant 
Providing information about absent co-heirs
When there are co-heirs residing abroad or within the country but whose addresses are unknown, the claimant is not required to absolutely prove their place of residence. What is important is to provide the best information available, such as full name, year of birth, family relationship, last known address, and contact details of relatives or diplomatic authorities who may assist. This forms the basis for the Court to carry out judicial entrustment procedures or verification through competent authorities. The claimant should note that providing truthful information, even if incomplete, still enables the Court to proceed with necessary procedural steps and avoids suspension of the case on the grounds of “unable to identify the defendant’s address.”

Requesting the Court to carry out judicial entrustment
The claimant should proactively request the Court to conduct judicial entrustment when there are heirs abroad. This demonstrates good faith cooperation and compliance with procedural rules. In the statement of claim or during trial, it should be clearly stated that the Court is requested to send an entrustment document to the competent authority in the host country to verify the address, notify of the acceptance of the case, or obtain testimony. If, after several attempts at entrustment, no result is achieved, the Court may still rely on Precedent No. 06/2016/AL to continue resolving the case instead of suspending it, thereby ensuring the rights of the other heirs.

Preserving requests regarding the mechanism for managing and safeguarding the estate
An important point is that the claimant and counsel must fully preserve their requests concerning the management and safeguarding of the portion of the estate belonging to the absent heir. In the statement of claim, it should be specified:

Who will be temporarily entrusted with managing the portion of the estate belonging to the absent heir.
The mechanism for supervising such management (for example, periodic reports to the Court or to the other heirs).
Responsibility for covering expenses related to maintenance, repair, taxes, and fees associated with the property.
A commitment to preserve the rights of the absent heir should they return or if a lawful successor by representation appears.
Such preservation helps prevent the estate from being neglected, deteriorated, or unlawfully appropriated, while at the same time ensuring fairness for the absent heir.

Conclusion
Resolving inheritance disputes in cases where one or more co-heirs are absent has always been a major challenge for both the Court and the parties involved. Such absence, particularly when the heir resides abroad or when their address cannot be identified, often prolongs the proceedings, creating difficulties in summoning parties, collecting evidence, and ensuring the protection of the rights of all concerned. However, current law and judicial practice have introduced flexible mechanisms that allow the Court to continue adjudicating the case instead of suspending it indefinitely, while at the same time preserving the inheritance rights of the absent heir. This approach not only ensures stability in civil relations but also maintains fairness for those who are present.

In practice, to effectively resolve inheritance disputes involving absent heirs, it is essential to focus on verifying personal information, carrying out judicial entrustment procedures in cases with foreign elements, and establishing appropriate mechanisms for managing and safeguarding the estate during the interim period. The claimant and counsel must proactively preserve requests related to the rights of the absent heir, thereby preventing the estate from being neglected, deteriorated, or misappropriated. Thus, resolving inheritance disputes in this context is not merely a matter of dividing property but also a matter of balancing present rights with potential rights, and reconciling practical considerations with the humanitarian values of the law. This is the necessary direction to ensure fairness, stability, and transparency in inheritance relations in Vietnam.

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