What are the requirements for the establishment of a bequest and maintenance agreement

Article 5 of China's Inheritance Law stipulates: "After the commencement of inheritance, it shall be handled in accordance with statutory inheritance; If there is a will, it shall be handled in accordance with the testamentary inheritance or bequest; Where there is a bequest and maintenance agreement, it shall be handled in accordance with the agreement. "A bequest and maintenance agreement is an agreement between the testator and the supporter that the supporter bears the obligation of the legatee's life, maintenance, death and burial, and that the property of the testator is transferred to the dependant after his death.

A bequest and maintenance agreement is a civil legal relationship of equality, compensation and mutual rights and obligations. So, what are the constituent elements of a bequest and maintenance agreement? 1) The testator and the dependents have full capacity for civil conduct 2) The parties' intentions are true and agreed upon through consultation, the terms of the agreement are complete, and the rights and obligations are clear, specific and enforceable; 3) The bequeathed property belongs to the legatee, and the property rights are clear and undisputed; The property is specific and not easily lost; 4) The legatee's creditor's rights and debts have clear handling opinions; 5) If the testator has a spouse and cohabitation, the agreement shall be signed with the husband and wife as one of the parties; 6) If the dependant has a spouse, the consent of the spouse must be obtained; 7) The guarantor agrees to the expression of intent of the guarantee and the secured property.

Legal basis: Article 5 of the Inheritance Law of the People's Republic of China shall be handled in accordance with the statutory inheritance after the commencement of inheritance; If there is a will, it shall be handled in accordance with the testamentary inheritance or bequest; Where there is a bequest and maintenance agreement, it shall be handled in accordance with the agreement.

Bequest refers to the legal act of a citizen to donate part or all of the property rights in his estate to an individual other than the state, collective organization, social group or legal heir by way of a will. Article 16 of the Inheritance Law stipulates that a citizen may make a will to donate his personal property to an individual other than the State, the collective or the legal heirs.

Conditions for the establishment of a bequest:

1. The testator must have full capacity when making a will.

2. The content of the will must be the true expression of the testator's intentions, and the content of the will must be legal.

3. The testator must have the right to dispose of the property, and should reserve the necessary share of the inheritance for the heirs who lack the ability to work and have no livelihood.

4. The legatee must exist and not die at the time of the effective date of the will.

5. The legatee shall clearly express his acceptance of the bequest. Article 25 of the Inheritance Law stipulates that the legatee shall make an expression of acceptance or renunciation of the bequest within two months after becoming aware of the bequest. If it is not indicated at the expiration date, it shall be deemed to have waived the bequest.

The true intention of the parties is expressed, and it does not violate the mandatory provisions of the state.

1) The legatee and dependents have full capacity for civil conduct.

2) The parties' intentions are true and unanimous, the terms of the agreement are complete, and the rights and obligations are clear, specific and feasible;

3) The bequeathed property belongs to the legatee, and the property rights are clear and undisputed; The property is specific and not easily lost;

4) The legatee's creditor's rights and debts have clear handling opinions;

5) If the testator has a spouse and cohabitation, the agreement shall be signed with the husband and wife as one of the parties;

6) If the dependant has a spouse, the consent of the spouse must be obtained;

7) The guarantor agrees to the expression of intent of the guarantee and the secured property.

From the perspective of the legatee, the most basic condition is to have a certain amount of property that can be disposed of and donated by the legatee, and the supporter should have the ability to support, which mainly refers to the economic and takes into account the ability to take care of the testator's daily life. In addition, the dependant must be a citizen or collective organization other than the legal heir.

1. If the supporter fails to perform or does not fully perform his maintenance obligations after signing the agreement, the legatee may cancel or modify his bequest commitment.

The purpose of the bequest and maintenance agreement is to take care of the lonely and widowed elderly, so the performance of the gift obligation of the elderly in the agreement is, firstly, premised on the performance of the dependent's obligation to support; Second, the gift is carried out after the death of the elderly, so it is a bequest. The gift is therefore a conditional gift that is based on the early fulfillment of the condition. If the dependant fails to perform the maintenance obligations agreed in the agreement, the legatee may cancel or modify the bequest commitment during his lifetime.

2.If the dependant has fully fulfilled the maintenance obligation in advance, there is no specific legal guarantee clause for the enjoyment of his rights.

This kind of protection is mainly reflected in two aspects, first, the rights and obligations of bequest and maintenance are concluded in the form of an agreement, so if the bequest and the office want to change the terms of the bequest, it must obtain the consent of the other party to the agreement according to law, or there are sufficient facts to prove that the dependant has not or has not fully fulfilled the maintenance obligation, otherwise, although the gift occurs after death, the testator cannot change the terms of his bequest at will just as the testator can change the content of his will at will. The second guarantee is that after the commencement of inheritance in Article 1123 of the Civil Code, it shall be handled in accordance with the statutory inheritance; If there is a will, it shall be handled in accordance with the testamentary inheritance or bequest; Where there is a bequest and maintenance agreement, it shall be handled in accordance with the agreement.

3. Will the agreement be invalid when the bequest clause is executed?

The authenticity and legality of the agreement is indeed the basic guarantee for the implementation of the bequest clause, such as some people bequeath other people's assets or the joint property of the husband and wife as their own property, which will naturally affect the validity of the agreement, then the purpose of applying for an office certificate is to confirm its authenticity and legitimacy according to law when the two parties sign the agreement, and if there is any problem, the office certificate will be regulated according to law, which is a practical legal safeguard for safeguarding the rights and interests of both parties.

The founder of the bequest and maintenance rights should have the capacity for civil conduct and be able to express his or her wishes in writing. The bequest and dependents shall negotiate the terms of the agreement and sign the contract according to the results of the negotiation. If the settlor repents, he or she shall pay the actual expenses of the supporter and protect the legitimate rights and interests of the supporter.

The bequest and maintenance agreement belongs to the scope of civil contracts, and the definition of its validity should consider whether the requirements for the validity of a civil contract are met:

1) The parties have the capacity for civil conduct, and the civil juristic acts carried out by persons without capacity for civil conduct are invalid.

2) If the expression of intent is true, and there are false representations and concealments, major misunderstandings, fraud, coercion, or obvious unfairness in the process of concluding the agreement, the validity of the agreement is pending or directly invalid.

3) Do not violate the prohibitive provisions of the law and public order and good customs. Public order, which refers to public order, refers to the general order necessary for the existence of the state and society and its development; Good customs, which refer to good customs, refer to the general morality necessary for the existence of the state society and its development.

4) The subject matter of the contract must be clear.

In addition, if the supporter is not a natural person, it shall be a collective ownership organization, and there is no statutory obligation to support the supporter and the legatee.

The premise of the conclusion of a bequest and maintenance agreement is not that it can only be concluded when the dependant does not have a statutory obligation to support him, because although the agreement is of a personal nature, it does not go beyond the scope of a civil contract, so in practice, the common intention of both parties should be fully respected and considered on the premise of not violating the law and public order and good customs, so that the validity of the bequest and maintenance agreement can reflect the original intention and basic spirit of its establishment.

In addition, the performance of the belayant's obligation to support the donor's life and death in accordance with the agreement is a key factor affecting the continued and final effectiveness of the agreement, and also determines the amount of bequeathed property that the supporter ultimately obtains. The right of a dependant to receive a bequest is premised on the performance of the corresponding obligations, and not merely on the existence of a bequest maintenance agreement.

1. Whether the agreement of remarried elderly people not to support each other is valid.

An agreement between remarried elderly persons not to support each other is invalid. Because it violates public order and good customs. At the same time, the law clearly stipulates that husband and wife have the obligation to support each other. The party who needs to repent and wants to support has the right to demand maintenance when the other party fails to perform the maintenance obligation.

The characteristics of a bequest maintenance agreement are divided into:

1. The bequest and maintenance agreement is a paid legal act, and both parties bear certain rights;

2. The bequest and maintenance agreement is a legal act of both parties, and must be agreed between the parties to the agreement;

3. The bequest and maintenance agreement is an essential legal act and should be concluded in writing;

4. The bequest and maintenance agreement shall take effect from the time of signing, and the revocation or modification of the bequest and maintenance agreement must be agreed upon by both parties;

5. If the supporter or collective organization has entered into a bequest and maintenance agreement with a citizen, and the supporter or collective organization fails to perform without justifiable reasons, resulting in the dissolution of the agreement, he or she cannot enjoy the right to receive the bequest, and the maintenance expenses paid by the supporter shall generally not be compensated, and if the legatee fails to perform without justifiable reasons and the agreement is dissolved, the maintenance fee paid by the supporter or collective organization shall be repaid.

Article 1158 of the Civil Code provides that a natural person may enter into a bequest and maintenance agreement with an organization or individual other than the heir. According to the agreement, the organization or individual undertakes the obligation of the natural person to support the dead and bury, and enjoys the right to receive a bequest.

The bequest and maintenance agreement must be in written form, which is a civil act of both parties and can only be established if both parties express their intentions. The bequest and maintenance agreement is a two-way act of compensation, both parties have the obligation to treat and pay accordingly, and either party enjoys the rights in consideration for the performance of the corresponding obligations, and neither party can acquire the property of the other party free of charge.

The conditions for a bequest maintenance agreement to take effect are:

1. The testator must have testamentary capacity;

2. The legatee must reserve the necessary share of the estate for the heirs who lack the ability to work and have no livelihood;

3. The will of the legatee meets the formal requirements prescribed by law;

4. The legatee must be a person outside the scope of the legal heirs and a person who is alive when the legatee's will takes effect;

5. The legatee must not lose the right to be bequeathed;

6. The bequeathed property must be an inheritance, and it is possible and lawful to execute the bequest upon the death of the legatee.

Legal basis: Article 1158 of the Civil Code provides that a citizen may sign a bequest and maintenance agreement with his or her dependent. According to the agreement, the dependant undertakes the obligation of the citizen's birth, death and burial, and enjoys the right to receive the bequest. Years of Xun.

Citizens can sign bequest and maintenance agreements with collectively-owned organizations. According to the agreement, the collective ownership organization undertakes the obligation of the citizen's birth, maintenance, death and burial, and enjoys the right to receive a bequest.

1. Precautions for signing a bequest and maintenance agreement.

The supporter should clearly bear the obligation to send the bird to live and raise the child and the dead and bury at the same time, and specify the specific content, method and time limit of the support. It is best to be specific to the arrangements for diet, life, medical treatment and other aspects before death, as well as the handling of funeral affairs and expenses after death.

2. The content of the bequest shall specify the name, quantity, and location of the bequeathed property, and provide valid supporting documents.

3. After the bequest and maintenance agreement is signed, the supporter shall earnestly perform the obligations of birth, support, death and burial, and if necessary, must also provide evidence to prove that if the corresponding obligations are not effectively fulfilled or cannot provide evidence to prove that he has fulfilled the corresponding obligations, the bequest and maintenance agreement will become a dead letter, and the supporter will not be able to obtain the corresponding inheritance of the legatee through the bequest and maintenance agreement.

A bequest and maintenance agreement is valid and satisfies the following conditions:

1. The legatee shall be a person outside the scope of the legal heir;

2. The legatee must not lose the right to be bequeathed;

3. The testator must have testamentary capacity;

4. The legatee shall reserve the necessary share of the estate for the heirs who lack the ability to work and have no livelihood;

5. Other conditions.

1. What are the principles for the repayment of the debts of the decedent?

The principles for the settlement of the debts of the decedent are as follows:

1. The principle of limited succession. The inheritance shall pay off the taxes and debts that the decedent shall pay in accordance with the law, and the payment of taxes and debts shall be limited to the actual value of his estate.

2. The principle of retaining the share of the estate of a specific heir. The will should reserve the necessary share of the estate for the heirs who lack the ability to work and have no livelihood.

3. The principle that the settlement of debts is preferable to the execution of bequests. The execution of the bequest shall not prevent the payment of taxes and debts payable by the legatee in accordance with the law.

2. What are the obligations of the legatee in order to accept the bequest?

Obligations of the legatee:

1. In the addition of attached obligations, the legatee can only accept the inheritance after completing the obligation;

2. The donee's exercise of the right to bequest shall not hinder the repayment of the taxes and debts that the legatee should pay in accordance with the law;

3. The legatee's exercise of the right to be bequeathed shall not damage the special reserved share of the heir who lacks the ability to work and has no livelihood;

4. Pay real estate deed tax in accordance with the law.

Article 143 of the Civil Code of the People's Republic of China.

Civil juristic acts that meet the following conditions are valid:

1) The actor has the capacity for civil conduct to be compelled accordingly;

2) The meaning is genuine;

3) Do not violate the compulsion of laws and administrative regulations, and do not violate public order and good customs.

Article 153.

Civil juristic acts that violate the mandatory provisions of laws and administrative regulations are invalid. However, Chakai is the exception where the mandatory provisions do not lead to the invalidity of the civil juristic act.

Civil juristic acts that are contrary to public order and good customs are invalid.