Can Ningbo will dispose of the joint property of husband and wife?

A will can only be divided into the personal property of the testator and cannot dispose of the share belonging to the spouse. The property jointly owned by the husband and wife shall, unless otherwise agreed, be divided into half of the common property for the spouse at the time of the division of the estate, and the rest shall be the estate of the decedent. Therefore, a will designating the whole couple's common house to be inherited by one of the children is invalid in excess of the individual's share, and the rest remains valid.

The direct consequence of this rule in practice is that after the will comes into effect, the heir cannot directly acquire the whole house by the will, but still needs to complete the analysis of the joint property of the husband and wife, and half of the spouse's share is not transferred by the will. If the heir insists on claiming all the house according to the will, he will usually be involved in a dispute with the spouse.

1. legal basis

article 133 of the Civil Code stipulates that a natural person may make a will to dispose of personal property and may appoint an executor. Article 1,153 further clarifies that, unless otherwise agreed, half of the property jointly owned by the husband and wife shall be divided into the spouse and the rest shall be the estate of the decedent.

With regard to the consequences of cross-border punishment, Article 26 of the (I) on the interpretation of succession stipulates that if the testator disposes of the property owned by the state, the collective or others by will, that part of the will shall be deemed invalid. The invalidity is limited to the portion that exceeds the individual's share, not the invalidity of the entire will, which is key to understanding such disputes.

2. core points

the core of the treatment is to analyze the property before inheritance, clarifying which belongs to the inheritance and which belongs to the spouse's personal property.

1. The order of first analysis of production and then inheritance

the joint property of the husband and wife shall not automatically be transferred to the estate at the death of the heir, and the first step shall be to separate half of the spouse in accordance with Article 153 of the Civil Code. If the parties have entered into a marital property agreement or a prenuptial property agreement and have agreed to own or share each other, the scope of the estate is determined by agreement, which takes precedence over the statutory common property system.

After the completion of the property, the share in the name of the heir enters the inheritance. If there is a legally valid will, it shall be inherited according to the will, and if there is no will or the part not covered by the will, it shall be handled according to the legal inheritance. If the property disposed of by a will has been sold, lost or otherwise disposed of after the making of the will, that part of the will is usually deemed to be withdrawn or not effective.

2. The specific treatment of common property such as housing.

In the case of a marital home, for example, if it is registered in the name of both parties or if it is registered in the name of one of the parties but is a joint property, the heir can dispose of only half of it. If the will states that the house is inherited entirely by a child, the child acquires the share of the decedent, and the house is shared by the spouse and the child before the division, after which it may be dealt with by way of negotiated discount, division or sale.

If the house is registered in the name of the decedent, the spouse is still required to prove that it belongs to the common property acquired during the marriage, such as the time of purchase during the marriage, the use of common income to repay the loan, etc. On the other hand, if the house is indeed the personal property of the decedent before marriage and there is sufficient evidence, the whole house can be disposed of by will.

3. boundary conditions

the formal elements of a will are equally important. Self-written wills must be written, signed and marked by the testator. If the form is illegal and causes the will to be invalid, the whole estate shall be handled according to the legal inheritance, and the consequences of the partial invalidity of the cross-border disposition are not the same.

Attention should also be paid to the interests of other rights holders. Heirs who lack the ability to work and have no source of income shall retain the necessary share of the estate. If the estate has not been divided and the spouse dies, there will be a transfer of inheritance, and if the heir dies before the heir and the heir has a junior direct blood, there may be a succession, which will change the final share distribution.

4. common mistakes

the first misconception is that a will is all valid once it is written. The validity of the will is limited by the authority of the disposition, and the part of the law that exceeds the individual's share is invalid, and the heir cannot ask the spouse to vacate the house or handle the whole set of transfer with a cross-border will.

The second misconception is that the house is registered in whose name it is. The house acquired during the marriage, even if registered in the name of only one party, is usually still the joint property of the husband and wife, and the testator can still dispose of only his own half. In turn, mistaking pre-marital personal property for common property can lead to testamentary arrangements that do not match expectations.

5. operational steps

the first step is to sort out the list of property and mark the time of acquisition and registration status item by item, distinguish between personal property, common property and family common property, and clarify the scope of the will that can be disposed. The second step is to check the formal elements of the will, complete the signature, date, witness and other elements, and re-conclude if necessary.

The third step is to make a clear statement of the common property in the will, for example, to state that my share is inherited by so-and-so, so as to avoid ambiguous wording such as the ownership of all the house. The fourth step is to prepare the death certificate, kinship materials and ownership certificate after the death of the decedent, and go through the follow-up procedures through Ningbo's notarization, real estate registration or mediation litigation path.

Practical Experience of 6. Lawyers

the conclusion is very clear: the testator can only dispose of his own part of the property, the whole set of joint property of the husband and wife are written into the will, the part involving the spouse's share has no effect. Therefore, the first step in dealing with such matters is to split the common property into "one's share" and "one's spouse's share", usually half of each other. The part of the will that crosses the border to dispose of the spouse's share is invalid, and the rest is still treated as a valid will or legal inheritance, and the two pieces are to be seen separately.

When drafting a will, write down the scope and do not use general expressions such as "all my property. Real estate, deposits, equity, funds, etc. and their respective ownership can be listed item by item, and it is clear which part belongs to them and who should be left to them. The form should also meet the legal requirements. Different forms such as self-writing, writing on behalf of others and printing have their own witness and signing requirements. It is safer to handle notarization if you are not sure. When there are multiple wills with conflicting contents, the one that conforms to the legal form and is later shall prevail, so the old will should be handled in time and not leave disputes to the family.

For spouses and children, be aware of whether the will has crossed the line to dispose of your fair share. If it is found that the will disposes of the common property as a whole, the claim for the excess may be invalid, and the property shall be analyzed first, and then dealt with according to the will and legal inheritance. In practice, it is suggested to inquire about the property registration and account status as soon as possible and fix the evidence. If there is still room for negotiation within the family, the scope can be clearly discussed through property analysis and compensation, which is often better to preserve family ties and faster to implement than direct court proceedings.