Make a will in advance to prevent inheritance risks
The ``2020 China Will Bank White Paper'' claims that the amount of will consultation is increasing year by year, but the penetration rate is still low
● With the changes in people’s concept of wills, more and more "post-80s", "post-90s" and "post-00s" have already made their wills in advance to plan their properties
● With the development of the times, the property pointed to by the will is not limited to money or real estate, but also includes virtual property.
In order to avoid subsequent disputes, it is more necessary to confirm the intention of the parties in the form of a will for these new properties.
● To increase the popularity of making wills, first of all is to break through the shackles of traditional concepts in the whole society, especially in accordance with the legal provisions of the Civil Code on wills, change people's behavior and habits, and allow more people to use the law to protect their property
□ Reporter Chen Lei
□ Our newspaper trainee reporter Sun Tianjiao
As of the end of 2020, the China Will Bank has provided 256,000 will consultations to the society, registered and kept more than 190,000 wills, and a total of 954 wills have been effective.
From 2013 to 2020, 8 years after the launch of the Chinese Will Bank, the number of will consultations received each year has shown a gradual upward trend.
Recently, the "2020 China Will Bank White Paper" (hereinafter referred to as the white paper) has been publicly released to the public and disclosed the above data.
The China Will Bank is a public welfare project jointly sponsored by the China Aging Development Foundation and the Beijing Sunshine Health Foundation for the Elderly, aiming to provide professional will services to the public.
The white paper also pointed out that, on the whole, the current penetration rate of wills in my country is still at a very low level.
Experts interviewed suggested that with the implementation of the Civil Code this year, there is an urgent need to popularize the relevant provisions of the Civil Code on wills, so that more people can make wills in accordance with the law and norms, use the law to protect their property, and prevent inheritance risks caused by no will.
At the same time, a corresponding special policy was issued to include the public welfare service of wills in the government's public service catalog.
Making a will tends to be younger
Open-minded attitude in handling property
One day in 2020, Xiaohong (a pseudonym), a freshman in a college who just turned 18, rushed to the Shanghai Second Registration Center of China Will Bank to make a will for herself.
When Xiaohong made her will, she hoped to leave the more than 20,000 yuan in her bank card to a friend of hers who had given her support and care when she was most sad.
Xiaohong said that she did not leave the money to her parents, and the money she earns in the future may be deposited in this bank card. If the assets increase, she may re-enter the will and increase the testamentary heirs.
In her view, making a will is not the end, but a new starting point, and will live more seriously in the future.
The phenomenon of "post-00s" like Xiaohong starting to make wills is not an isolated case.
With the changes in people's concept of wills, more and more "post-80s", "post-90s" and "post-00s" have already made their wills in advance and make good property planning.
White paper data shows that as of December 31, 2020, the youngest testator who has made a will in the China Will Bank is 17 years old.
According to the law, minors over the age of 16 who use their own labor income as their main source of income are regarded as persons with full capacity for civil conduct.
A person with full capacity for civil conduct can independently perform civil juristic acts including making a will.
According to the white paper, among the "post-80s", "post-90s" and "post-00s" groups, 553 "post-90s" have registered and kept their wills in the China Wills and 1,004 "post-80s" have registered and kept their wills in the China Wills.
Statistics show that in 2017, there were 55 "post-90s" who registered and kept their wills in the China Will Bank; in 2018, 2019, and 2020, the number of "post-90s" who registered and kept their wills in the China Will Bank was 123 and 166, respectively. , 209 people.
In 2017, a total of 73 "post-80s" made wills in the China Will Bank; by 2020, the total number of "post-80s" made wills reached 1,004.
Chen Kai, director of the China Will Bank Management Committee, said in an interview with a reporter from the Rule of Law Daily that, judging from the growth trend of the "post-80s" and "post-90s" population, more and more "post-80s" and "post-90s" people are making wills. "Accept and willing to make a will.
"In the past, a will was usually inherited by the elderly to young people, but now young people can inherit from their parents, elders, and other relatives. It is no longer simply a question of inheritance from respected relatives to inferior relatives." said Ma Hongjun, a professor at China University of Political Science and Law. .
Xu Shenjian, a professor at the China University of Political Science and Law, said in an interview with a reporter from the Rule of Law Daily that the “post-80s” and “post-90s” are growing into the backbone of society. With the development of social economy, they have taken their own lives in the society through hard work. Roles, such as the phenomenon of making wills tend to be younger, reflect their courage to accept new things in social development.
Writing virtual property into a will
The number of wills continues to increase
The white paper said that from the content of the "post-90s" distribution of property in the will, it can be seen that 81.61% deal with bank deposits and 71.54% involve real estate.
Chen Kai said that in actual work, he found that most of these "post-90s" parents bought houses and put them under their children's names. This is also an important reason why these people have to make a will to prevent accidental property from leaving others behind. Avoid missing property.
Different from testators of other age groups, the inclusion and arrangement of "virtual property" in the will of the "post-90s" has become a prominent feature, that is, Alipay, WeChat, QQ, game accounts, etc. are included in the wills of the "post-90s" Common property types, followed by securities funds.
From the data point of view, the property of the "post-80s" is dominated by real estate, with deposits in the second place.
Among the "post-80s" wills, 13.16% of the wills involve company equity, and 15.89% of the wills involve securities funds, which is far higher than that of other age groups.
According to Meng Qiang, director of the Civil Code Research Center of the Beijing Institute of Technology Law School, in the property composition of the "post-90s" population, network virtual property already accounts for a considerable proportion.
In this regard, the Civil Code recognizes the object status of the civil rights of virtual property and data on the Internet, and relevant laws and regulations are constantly improving.
Ma Hongjun believes that with the development of the times, the property pointed to by the will is not only limited to money or real estate, but also includes virtual property.
In order to avoid subsequent disputes, it is more necessary to confirm the intention of the parties in the form of a will for these new properties.
In Xu Shenjian's view, with the development of the network society and social media, the "post-90s" have Alipay, WeChat, QQ, etc., and have the form of virtual property in the network society.
The Civil Code summarizes previous experience and makes provisions, which can basically deal with this new trend of making wills.
Xu Shenjian said that in the future, the property itself will become more and more complex. In addition to real estate, securities, and savings, there will be a variety of intellectual property rights, such as copyrights, patents, trademarks, etc., as well as shares.
"This new trend also places requirements on the Civil Code, and may require the introduction of relevant judicial interpretations as a supporting tool to effectively respond to new forms of property and inheritance." Xu Shenjian said.
However, Meng Qiang believes that the Civil Code has revised and improved the original inheritance law, but the form of the will is not enough to fully cope with this new trend of making wills.
The Civil Code stipulates six forms of self-written wills, written wills, printed wills, audio and video wills, oral wills, and notarized wills. However, whether a will established in electronic form can be interpreted as a self-written will or other forms of wills. there is controversy.
Meng Qiang said that Article 469 of the Civil Code stipulates that “the contents contained can be tangibly represented by means of electronic data exchange, e-mail, etc., and the data messages used for checking can be retrieved at any time, which is regarded as written form. Relatively speaking, the form of making a will has not yet adequately responded to electronic and informatization.
Meng Qiang believes that the form of a will has stricter requirements in order to avoid disputes caused by the authenticity of the will and the accuracy of its content. Electronic and networked wills do have a greater risk of forgery. However, these new forms of wills cannot be avoided because of this. Especially when the blockchain technology matures, it is easier to verify the authenticity of the electronic representations. Therefore, the forms of wills in the future should continue to increase and improve.
Will penetration rate is still low
Incorporate public service products
Data from the China Will Bank shows that elderly people over 60 are the main group for will consultation and registration and custody.
As of December 31, 2020, the China Will Bank has registered and kept a total of 190,866 wills, of which 186,676 wills made by elderly people over 60 years old; the China Will Bank provided 256,000 will consultations to the society, of which, those over 60 years old Of the elderly consulted 247,011 times.
From 2013 to 2020, the volume of will consultations in the China Will Bank has shown a gradual upward trend, and the total volume of registration and custody accounts for 75.57% of the total consultation volume.
Among the elderly over the age of 60, the age group of people who make wills is concentrated between 60 and 70 years old, the proportion is 43.91%, becoming the "main force" for the elderly to make wills.
Statistics show that the main reason for the elderly to make a will is to avoid family disputes and simplify the inheritance procedures of the heirs. The proportions are 31.49% and 32.87% respectively; the next reason is that the property is left to grandchildren and other illegal laws. Marriage risks for heirs and separated children.
Among the wills made by the elderly, real estate is the main treatment property, which accounts for more than 98% each year; the second is bank deposits, which account for more than 17% each year.
The heirs involved are mostly spouses or children, in addition to spouses and children, there are also grandchildren.
However, the proportion of "children's direct inheritance" is declining year by year, while the proportion of "spouses inherit first and children second" is increasing year by year.
Among them, 29.81% of spouses inherited from each other and then inherited by their children, 28.74% of children directly inherited, and 11.67% of their grandchildren directly inherited.
The white paper believes that this shows that people are beginning to realize that priority should be given to guaranteeing the happy life of their spouses in their later years.
The white paper stated that the current penetration rate of wills in my country is still at a very low level, and the proportion of wills made is less than 5%.
Xu Shenjian believes that the main reason is that people are more taboo about death due to the influence of traditional thinking and feel unlucky, so they are reluctant to talk about what happened to them.
In addition, for a long time, no corresponding system design has been made in the institutional arrangements to encourage people to form the habit of making wills.
In Ma Hongjun's view, wills are an important link for people to deal with family property in the future, but it is not the only link. It should be linked with other family property processing links, such as the family property trust system, to form a complete property protection system.
The law should guide people to discover their property rights and choose a better way to protect them.
Chen Kai suggested that to increase the popularity of making wills, first of all, to break through the shackles of traditional concepts in the whole society, especially in accordance with the legal provisions of the Civil Code on wills, to change people's behavior and habits, and to allow more people to use the law to protect their property.
Secondly, formulate special policies and regulations to include professional will services into the scope of government public service products and provide them to the society.
Finally, the government can intensify the cultivation of such public service agencies and non-profit organizations, and make policy tilts.
Information silos in a will
Set up a will review process
Article 142 of the Civil Code stipulates that the testator may withdraw or modify his will.
After the will is made, if the testator performs a civil legal act contrary to the content of the will, it shall be deemed to have withdrawn the relevant content of the will.
If there are several wills that conflict with each other, the last one shall prevail.
The relevant provisions of the inheritance law before the repeal are that self-written, written, recording, and oral wills cannot be revoked or modified.
This means that the Civil Code deleted the provision that the validity of notarized wills takes precedence.
The white paper believes that the legislative thinking of the Civil Code is designed to give citizens more choices when making a will, but such a provision may also cause new problems, that is, a person may be in the notary office, the Chinese Will Bank, and the judicial office at different times. Various institutions have made multiple wills. When they pass away, if the court, notary office, and real estate registration center go through the relevant inheritance procedures without examining the will, omissions are likely to occur.
Meng Qiang believes that since notarized wills are handled in a notary institution and are bound by relevant notarization laws, regulations and rules, they are relatively standardized, credible, and authoritative, and therefore have a high degree of credibility.
However, compared with other forms of wills, it is more cumbersome and complicated to process a notarized will. It is not easy to process a notarized will when the testator is old or ill, causing inconvenience.
If he handles a notarized will, he can no longer be overturned by other forms of wills, which will inevitably limit the testator’s freedom of testament and make the testator unable to create other forms of wills.
Meng Qiang explained that, therefore, the Civil Code abolished the priority effect of a notarized will, making it the same effect as other forms of wills, such as self-written wills and testaments on behalf of others. When there are multiple wills and conflicts in content, the last will be the last one. The will shall prevail.
In Meng Qiang’s view, this provision of the Civil Code guarantees the testator’s freedom of testament, but at the same time, due to the non-publicity of the will, the outside world does not know whether there are other forms of wills, which may have a certain impact on the handling of inheritance procedures. .
Meng Qiang stated that the provisions of the Civil Code should be followed. After the inheritance begins, the person obligated to notify should promptly notify other heirs and executors.
In addition, the Civil Code has also added a legacy administrator system. After the inheritance begins, the legacy administrator can notify other heirs as much as possible and discover the wills left by the deceased.
If there is indeed a testament that cannot be found before the completion of the division of the estate due to objective reasons, it may also be required to redistribute the estate after the fact.
"The removal of the priority of the validity of the notarization will in the Civil Code does not mean that the notarization system should not be taken seriously. On the contrary, the notarization system has certain advantages." Problems such as balance have prevented the superiority of the notarization system from being fully realized.
Therefore, it is still necessary to improve the notarization system and give play to its superiority in testamentary inheritance.
Xu Shenjian suggested that the people's court, notary office, and real estate registration center should first conduct will inspections when handling inheritance matters.
An information sharing platform can be built by China Wills Bank, notary office, judicial office, etc., to break the information "island", and on this basis, create a full coverage, full field, and full system inheritance service system-China Will Bank plays a role as a public welfare organization The function is to undertake public services for wills; the notary office connects to the Chinese Will Bank to provide various notarization services for inheritance processing and other related matters; the judicial office connects to the Chinese Will Bank to introduce public welfare forces to provide citizens with law popularization and consulting services.
Cartography/Gao Yue