Ningbo subrogation inheritance and transfer inheritance: a word difference, the result is very different.

Both derivative succession and successive inheritance occur in situations where the person who was originally entitled to inherit fails to personally receive the estate. Although their names differ by only one character, they are often used interchangeably in practice. The legal effects of the two are vastly different: if derivative succession is mistakenly treated as substitutional succession, it may bring in heirs who should not have been included or exclude those who rightfully should be, thereby directly altering the final share each person ultimately receives. There is actually only one watershed in judgment-whether the heir who died died before the death of the heir, or after the death of the heir and before the division of the estate. The former corresponds to subrogation inheritance under Article 128 of the the People's Republic of China Civil Code, while the latter corresponds to subrogation inheritance under Article 152. First give the conclusion, the following table can be used as a quick check.

| comparative dimension | subrogation | subrogation | | --- | --- | --- | | legal basis | article 1128 | article 1152 | | time of death | the subrogation person dies before the decedent | after the inheritance starts and before the inheritance is divided, the heir dies | | | who will bear | the direct blood relatives of the children of the decedent, or the children of the decedent's siblings | the deceased heir's own heir | | the object | the share that the subrogation is entitled to inherit | the share of the inheritance that the heir should inherit | | the nature | the substitute in one inheritance | the convergence of two inheritances | | scope of application | legal inheritance only | legal inheritance, testamentary inheritance can be |

Two "Relay" Mechanisms of 1. Legal Inheritance

Inheritance begins at the death of the decedent (Civil Code, Article 121). From this moment on, the estate of the decedent is transferred to the common ownership of all the legal heirs, and the heirs acquire the common right to the estate, rather than waiting for the right to arise at the time of division. According to Article 1,127 of the Civil Code, the first order of legal inheritance is spouse, children, and parents, and the second order is brothers and sisters, grandparents, and grandparents; if there is a first-order heir, the second order No participation, only when there is no first-order heir, the second order is the turn. The terms "children", "parents" and "brothers and sisters" here are expansive concepts: children include children born in wedlock, children born out of wedlock, adopted children and stepchildren in a dependent relationship; parents include biological parents, adopted parents and stepparents in a dependent relationship; brothers and sisters include same parents, half-parents or half-parents, adopted brothers and sisters and stepbrothers and sisters in a dependent relationship.

The treatment of the estate has the order: if there is a legacy and maintenance agreement, it shall be handled according to the agreement, if there is a will or legacy, it shall be handled according to the will, and the rest shall go through legal inheritance (Article 1123 and Article 1154). It can be seen that both subrogation and succession are within the framework of statutory inheritance.

The difficulty arises when “the person who should inherit is unable to come.” The law has prepared two different channels: one is "substitute"-subrogation inheritance, so that the immediate descendant of the heir of the first death will come up; the other is "relay transmission"-inheritance, so that the heir of the later death will take over the share he has already obtained but has not yet divided. The trigger conditions, participants and share attribution of the two channels are completely different.

2. Substitutional inheritance: applicable circumstances and scope

Article 128 of the Civil Code divides subrogation inheritance into two categories. Article 1: With respect to the children of the deceased—where a child of the deceased predeceased the deceased, the deceased’s child’s lineal descendants shall inherit by way of substitution. This is the traditional subrogation inheritance, grandchildren, grandchildren to replace the early death of the father or mother, to inherit the inheritance of grandparents, grandparents. The second paragraph is new to the Civil Code and is aimed at the siblings of the decedent: if the siblings of the decedent die before the decedent, the children of the siblings of the decedent shall inherit in subrogation, that is, nephews and nephews. The third section of the delineation of the share: the successor of the generation can generally only inherit the share of the estate that the successor of the generation is entitled to inherit.

To understand subrogation inheritance, we should grasp several key points. First, the premise is that "die first"-the person to be replaced (the heir's children or siblings) must die earlier than the heir. Second, subrogation inheritance only applies to legal inheritance, will inheritance, bequest according to the will, no subrogation. Third, the scope of the surrogate is not limited by the number of generations: the direct blood relatives of the children of the decedent, that is, the children, grandchildren, great-grandchildren and great-grandchildren of the children, can be extended from generation to generation. Fourth, stepchildren who raise children and form a dependency relationship are treated equally with biological children in subrogation inheritance.

The "nephew's subrogation" in the second paragraph is the substantial change of the Civil Code relative to the original Inheritance Law. In the past, if a brother or sister died before the heir, his or her children could not be subrogated, and the estate, when there was no first-order heir, was either inherited by the surviving brother or sister, or could become an inheritance that was neither inherited nor bequeathed, and belonged to the State or the collective. The new law includes the children of brothers and sisters in the scope of subrogation and expands the circle of legal heirs, with the aim of allowing private property to circulate as much as possible within the blood family and reducing the "ownerless inheritance". Please note: The second‑order substitution only applies when the decedent has no first‑order heirs and the estate must be inherited by second‑order siblings; if the decedent has a surviving spouse, children, or parents, nephews and nieces are not entitled to substitute.

Among the typical cases of family disputes issued by the Higher People's Court of Jiangsu Province, Case 18 is just a case of nephew's subrogation. The decedent Huang died in May 2021, unmarried and childless. His parents, grandparents and grandparents all died before him and left no will. Huang's parents had five children: Huang, Huang 1, Huang 2, Huang 3, and Huang 4. Among them, Huang 4 died as early as 2007, and Huang 4 had a daughter Li. In July 2021, Huang 1 and Li sued, requesting to jointly inherit a house under Huang's name with Huang 2 and Huang 3, with each of them getting 25%. The court held that Huang had no will and should be handled according to legal inheritance; Huang had no spouse or children, his parents died before him, and there was no first-order heir, so his brothers and sisters should be inherited as second-order heirs. Huang's sister Huang 4 died before Huang. According to the second paragraph of Article 128, Li, daughter of Huang 4, should inherit her share. In other words, Li did not inherit directly as a "niece", but replaced his deceased mother Huang 4 and entered the second-order heir position that Huang 4 should have occupied. In the end, the court considered that Huang mou 2 and Huang mou 3 had done more support obligations and held funerals during Huang mou's lifetime, and scored more points according to law. Because Li voluntarily gave half of his share to Huang mou 2 and Huang mou 3, it was decided that Huang mou 1 inherited 20% of the house and Huang mou 2 and Huang mou 3 each inherited 40%. This case shows two points: first, nephews substitute is the position and share of the deceased brothers and sisters.

3.-to-inheritance: the core difference from subrogation inheritance

Article one thousand and one hundred and fifty-two of the Civil Code stipulates: after the commencement of inheritance, if the heir dies before the division of the estate and does not give up the inheritance, the inheritance that the heir should inherit is transferred to his heir, unless otherwise arranged in the will. This is the inheritance.

There are three main points in the establishment of the succession. First, the time node is "after the beginning of inheritance and before the division of the estate": the heir has passed away and the inheritance has started, but the estate has not yet been actually divided. Second, the heir died in this interval. Third, he did not give up the inheritance. If all three conditions are met at the same time, the share of the inheritance he should inherit will be transferred to his own heirs.

the essence of transinheritance is "the connection of two inheritances". At the time of the decedent’s death, each heir acquires a vested right to the estate, namely a co-ownership interest in the estate, which has already been transformed into an integral part of the heir’s own property. Therefore, when he subsequently died, his "successor share" became his own inheritance, which was inherited by his spouse, children, parents and other heirs according to law. It is crucial to understand this: the successor acquires "the share of the estate that the original heir should inherit" rather than "the inheritance of the original heir"-the former is a property right and the latter is a status right.

This also leads to a common convergence problem-the common property of husband and wife. According to article 1,153, unless there is an agreement, half of the joint property of the husband and wife shall be allocated to the spouse in the division of the estate, and the rest shall be the estate of the decedent. If the deceased heir (the heir who subsequently dies) has a marital relationship with his spouse at the time of his death, and there is no special agreement, his share of inheritance is often the common property of the husband and wife: half of the first part goes to his spouse, and the remaining half is inherited by his heirs as his own estate. If this step is wrong, the shares of each heir will deviate.

also need to pay attention to the exception of "unless otherwise arranged in the will": if the decedent has made a special arrangement for the trend of the share of the deceased heir in the will, it should be treated as the will first, rather than the mechanical application of the succession.

4. Comparison table of the two

| comparative dimension | subrogation | succession | | --- | --- | | | legal basis | article 1128 of the civil code | article 1152 of the civil code, or the siblings of the decedent | the heir of the decedent | the scope of the subrogation or successor | the lineal descendant of the children of the decedent; the children of the siblings of the decedent | the full heirs of the deceased | | share | generally only the share that the subrogation is entitled to inherit | the share of the inheritance that the subrogation should inherit | | the nature of rights | the substitute in one succession, the connection of the right of subrogation, the connection of the two inheritances, the transfer of the share, is limited to the legal inheritance, yes, no, legal inheritance and testamentary inheritance can be.

in one sentence: subrogation inheritance is "people die first and replace the position", while subrogation inheritance is "people die later and share transfer". The former focuses on who stands for whom to inherit, while the latter focuses on who owns the share already obtained.

Other cohesive issues in the division of 5. heritage

subrogation and succession usually do not occur in isolation, and they are intertwined with issues such as renunciation of inheritance, loss of inheritance rights, renunciation of share and remorse. Pick a few high-frequency connection points here.

Waiver of Inheritance. Article 124 of the Civil Code stipulates that if the heir renounces the inheritance after the beginning of the inheritance, he shall make a written statement of renunciation before the disposal of the estate. This means that there is a “time window” for renouncing an inheritance—such renunciation must be made in writing and before the estate has been settled. A waiver is a unilateral legal act that takes effect once it is legally made and, in principle, is not allowed to go back on one's word; exceptions include the consent of other heirs, the existence of fraud or coercion, a major misunderstanding, or the fact that going back on one's word is in line with family ethics, but all require sufficient evidence to support it.

Loss of Inheritance. Article 125 of the Civil Code lists the legal circumstances of loss of inheritance, including intentional killing of the heir, killing of other heirs in order to compete for the estate, abandonment or abuse of the heir, forgery, tampering, concealment, destruction of the will, and obstruction of the will by fraud or coercion and the circumstances are serious. The third to fifth acts do not lose the right of inheritance if they do repent and are forgiven by the heir, or if they are listed as heirs by the will afterwards.

The connection between loss of inheritance right and subrogation inheritance is a practical difficulty. In accordance with the provisions of the judicial interpretation of the Civil Code of Succession, if an heir loses his right of inheritance, his or her junior lineal blood relatives may not inherit in subrogation. In other words, if the person whose inheritance is being inherited by substitution has themselves lost their right to inherit due to a statutory reason, then the children or nephews and nieces standing behind them and relying on “substitution” also lose their right of substitution. However, the law provides a safeguard: if a junior-generation direct descendant lacks the capacity to work and has no source of livelihood, or has borne a greater share of the obligation to support the deceased, they may, in accordance with the law, be allocated a proper portion of the estate. This reflects a dual consideration of the principle of consistency between rights and obligations, as well as the protection of vulnerable groups. On the other hand, the nature of "waiver of inheritance" is different from that of "loss of inheritance": waiver is autonomy of the will, loss is a legal sanction, the former does not affect others in principle, and the latter will affect the subrogation qualification of the younger generation.

As for “renunciation” in derivative succession, it depends on which stage it occurs. If the heir has explicitly given up inheritance during his lifetime, the share has nothing to do with him from the beginning, and his heir has no way to transfer it. If he does not give up, the share has fallen to his name but has not yet been divided, then the share will be inherited by the heir as his estate after his death-at this time, the layer of "inheriting the heir's estate" is abandoned, not the original inheritance of the heir's estate.

6. Key points of practical litigation

Subject of the action. In inheritance disputes, correctly identifying the parties involved is the first step. In the case of succession, the heir in the case is the legal heir, and if the heir in the case is omitted, the court may add it as a co-plaintiff or defendant ex officio.On the occasion of succession, if the original heir dies in the course of litigation and before the division of the estate, his heir shall be promptly added as a party and his share shall be transferred to his heir's claim. According to the judicial interpretation of the Succession Code of the Civil Code, after the commencement of the succession proceedings, if the heir or the bequeathed person neither wishes to participate in the proceedings nor expresses a waiver of the substantive rights, he shall be added as a co-plaintiff. These rules determine whether the list of parties is correct and directly affect whether the judgment can resolve the entire share at once.

Evidence preparation. One is the death certificate of the decedent, including the death medical certificate, household registration cancellation record, household registration book, etc., which is used to lock the start time of inheritance. The second is the evidence of the order of death, which is the key to distinguish between subrogation and succession-to prove that the subrogation died before the decedent, or that the heir died after the inheritance began and before the division, the time points must be mutually corroborated. The third is the evidence of kinship chain, including household registration materials, birth medical certificate, kinship certificate, personnel file resume, etc., to prove the identity and sequence of the surrogacy or heir. Fourth, evidence of the performance of support obligations, such as transfer records, medical care vouchers, neighborhood committee certificates, etc., is used to claim more or less points. If it is old, foreign-related or the whereabouts of the parties are unknown, it is more difficult to obtain evidence, and if necessary, it can be obtained and strengthened through notarial certificates and archives.

Conflict between a property division agreement and a will. If each heir signs an agreement on the division of the estate, and the content of the agreement is inconsistent with the will of the decedent, the processing rule is: if the parties have known the existence of the will when signing the agreement, it is deemed to have abandoned the testamentary inheritance by agreement, and the agreement takes precedence; if the will is known only after signing, and can prove the existence of fraud or major misunderstanding, the conflict part is dealt with the will. This reminds the parties that before signing any division agreement, it is important to check whether there is a will, bequest or bequest maintenance agreement.

The division itself should also pay attention to: the division of the estate should be conducive to the needs of production and life, without damaging the utility of the estate, and those that are not suitable for division can be discounted, appropriately compensated or shared (Article 1,156); Before the division, the inheritance share of the fetus should be retained (Article 1,155), and the taxes and debts payable by the decedent according to law should be paid first.

class case reference: after the implementation of the Civil Code, the children of the decedent's brothers and sisters can inherit in subrogation. In one case, the decedent was unmarried and childless, and the adoptive parents, biological parents and elder brother all died first, and the court determined that the children of their brothers and sisters (nieces) were eligible for subrogation in accordance with Article 1128 of the Civil Code; after the other second-order heirs renounced the inheritance, the nephew and daughter inherited the entire estate as the subrogation heir. Trial Court: Case No. of Qingshan District People's Court of Wuhan City, Hubei Province:(2021) No. 637 of Hubei 0107 Republic of China; Source: 2022 Cases of Chinese Courts, Disputes over Marriage, Family and Inheritance.

7. Frequently Asked Questions

Question: Can grandchildren directly inherit the inheritance of grandparents? Answer: You can't inherit directly in your own name. You can only inherit by subrogation the share that belongs to your father or mother when your father or mother dies before your grandparents. If both parents are alive, grandchildren are usually not legal heirs.

question: can nephews and nephews inherit the inheritance of uncles and uncles and aunts? Answer: Under the Civil Code, it is possible, but there is a premise-the decedent has no first-order heir and needs to be inherited by a brother or sister in the second order, and the brother or sister dies before the decedent, and his children can be subrogation.

question: if the heir dies after the decedent's death or before the estate is divided, does his child count as subrogation or succession?Answer: It is derivative succession. Inheritance has already begun, the share has gone to the heir, and after his death the share is transferred to his own heir, which is inherited by his spouse, children, parents, etc. in accordance with the law.

Q: How much does the subrogation heir get? Answer: Generally, you can only inherit the share that the subrogation person has the right to inherit, and it will not take one more share because of the large number of people, but the rules of more points and less points in the same order are still applicable.

Question: Can we go back on our word after giving up the inheritance? Answer: In principle, we can't. A waiver must be made in writing before the estate is disposed of and becomes effective as soon as it becomes effective, unless there are exceptions such as consent of other heirs, fraudulent coercion, or material misunderstanding.

Question: If an heir forfeits the right of inheritance, can their children still inherit by way of substitution? A: In principle, there can be no subrogation; but if the younger generation lacks the ability to work and the source of livelihood, or has more obligations to support the decedent, they can be given appropriate inheritance.

Practical experience of 8. lawyers

In practice, the easiest way to get confused is to regard subrogation and succession as the same thing, thinking that the previous generation did not get it and the next generation did it. There is only one watershed between the two: whether the heir who failed to get the inheritance died before or after the death of the decedent. Subrogation inheritance is triggered only if it precedes the death of the decedent, and only occurs in legal inheritance. If you make a mistake in the order of death, you may bring in relatives who should not enter the arena, or you may block people who have a share in the door.

In terms of procedure, the first step is to secure the time-related evidence. The death certificate, cremation certificate and household registration cancellation time of the decedent should be accurate to the day. The time of death of the relay heir should also fall to a specific date. If necessary, the medical certificate of death, funeral record or household registration file of the current year should be retrieved. The sequence of the two death times directly determines whether to go to subrogation or to inherit, and thus to whom the share belongs. When it comes to the second order situation such as nephew's subrogation, it is necessary to confirm whether the heir has a spouse, children, parents and other first-order heirs are still alive. Only when there is no first order can the children of brothers and sisters be brought out.

When the family negotiates, the most likely argument is why he can stand up. It is suggested that the two death certificates and kinship materials should be spread out and checked as soon as possible, and the conclusion of subrogation or inheritance should be told to the whole family first, and then the share should be discussed to avoid emotion first. Involving multi-generation, multi-location, early adoption or stepchild relationship, oral can not say clearly as soon as possible to obtain personnel files, village residence certificate, the relationship chain fixed. If you really can't talk about it, then you can go to court. The evidence of the time of death and the materials of kinship in your hand are the most direct basis for the judge to judge who should be the top.