Bảy Bước Cần Thiết Để Bảo Vệ Tài Sản Và Gia Đình

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Sinh – Lão – Bệnh – Tử là quan niệm của đạo Phật về bốn khổ ải mà con người ai cũng trải qua trong cuộc đời. Đó là quy luật của tự nhiên, cái chết không loại trừ ai cho dù chúng ta là nhà vua hay chỉ là dân thường. Mặc dù theo văn hóa Á Đông nói chung, đa số chúng ta thường tránh né, không muốn bàn bạc hoặc chuẩn bị trước cho cái chết của mình, nhưng thật sự đó là điều cần phải thực hiện. Nếu chúng ta chết mà được ma chay đàng hoàng, chôn cất tử tế, tài sản để lại được giao đúng cho người chúng ta muốn giao phó, biết bảo quản, duy trì và phát triển nó; con cái chúng ta được an toàn về tài chính để có thể học hành tới nơi, tới chốn, thành đạt thì hạnh phúc biết bao. Tuy nhiên, trong thực tế, sự việc đôi khi không diễn ra tốt đẹp như vậy. Có rất nhiều trường hợp con cái không biết xử lý thế nào với khối tài sản cha mẹ để lại vì cha mẹ chết không để lại di chúc và phải lôi nhau ra tòa để phân chia tài sản; người giám hộ lợi dụng khối tài sản để lại để phục vụ cho mục đích riêng, hay con cái không thể tìm được các giấy tờ sở hữu tài sản để làm thủ tục thừa kế hoặc phung phí làm cho khối tài sản bị chia năm xẻ bảy không theo ý muốn của chúng ta trước lúc qua đời.

Nếu chúng ta có thể theo các bước đề nghị bên dưới thì sẽ giúp một phần: (1) tiết kiệm rất nhiều thời gian và công sức cho những người thân khi chúng ta đã qua đời; (2) chúng ta có thể tự quyết định được đa số những gì thuộc về chúng ta ngay cả sau khi chúng ta đã qua đời; (3) và quan trọng hơn cả nó giúp cho tiền bạc chúng ta vẫn nằm trong gia đình thay vì nằm trong tay của một người nào đó bên ngoài hay một người nào đó mà chúng ta không hề mong muốn (ví dụ như người tình mới của người phối ngẫu).

Bên dưới là bảy bước đơn giản mà chúng ta nên xem xét thực hiện khi sự nghiệp chúng ta còn đang ở đỉnh cao, sức khỏe còn dồi dào, tâm trí còn minh mẫn để bảo vệ an toàn cho gia đình và sản nghiệp của chúng ta một khi chúng ta qua đời.

Bước 1: Lập di chúc

Di chúc là gì? di chúc là sự thể hiện ý chí của cá nhân nhằm chuyển tài sản của mình cho người khác sau khi chết[1]. Việc lập di chúc là một việc làm không chỉ đầy tính nhân văn, thể hiện ý chí, tình cảm và nguyện vọng của chúng ta trước lúc qua đời mà còn tránh cho những người thân thích còn sống phát sinh những mâu thuẫn không đáng có.

di-chuc

Một di chúc được coi là hợp pháp phải hội đủ các điều kiện sau đây: (i) người lập di chúc minh mẫn, sáng suốt trong khi lập di chúc; không bị lừa dối, đe doạ hoặc cưỡng ép; (ii) nội dung di chúc không trái pháp luật, đạo đức xã hội; và (iii) hình thức di chúc không trái quy định của pháp luật. Di chúc phải được lập thành văn bản; nếu không thể lập được di chúc bằng văn bản thì có thể di chúc miệng trong các trường hợp đặc biệt [2]. Trong trường hợp tài sản thừa kế là là tài sản có đăng ký quyền sở hữu (như bất động sản, ô tô, xe máy…) di chúc nên được lập thành văn bản và có công chứng hoặc chứng thực để tránh phức tạp về thủ tục thừa hưởng di sản thừa kế sau này. Sau khi lập di chúc, người lập di chúc có thể nhờ người ký làm chứng hoặc có thể thực hiện thủ tục công chứng tại các Phòng Công chứng hoặc thực hiện thủ tục chứng thực di chúc tại UBND địa phương nơi người lập di chúc cư trú. Việc lập di chúc để lại cho con cái hoàn toàn phụ thuộc vào ý nguyện của chúng ta, không cần có ý kiến của người được hưởng di sản, tuy nhiên người được thừa hưởng có quyền từ chối nhận di sản. Việc người hưởng di sản có quốc tịch Việt Nam ở trong hay ngoài nước không hề ảnh hưởng đến quyền lợi thừa kế của họ và thậm chí ngay cả khi họ đang sinh sống ở nước ngoài, thủ tục lập di chúc không có gì khác biệt so với những nội dung đã được đề cập ở phần trên. Di chúc có thể lập và hủy nhiều lần và trường hợp muốn hủy thì phải có đơn xin hủy nơi đã công chứng, chứng thực trước đây. Trường hợp tồn tại nhiều di chúc thì bản di chúc sau cùng sẽ có hiệu lực.

Đa số người Việt Nam chúng ta không có thói quen lập di chúc vì lý do văn hóa và tập quán của người Việt tránh không muốn đề cập đến chuyện này. Điều này trong một chừng mực nào có có thể là chưa đúng vì dù chúng ta có thể không có khối tài sản to lớn như những tỷ phú trên sàn chứng khoán nhưng chúng ta vẫn có một gia sản đáng giá dành cho vợ, chồng, con cái và gia đình mình; và ai đó sẽ phải thực hiện các vấn đề tài chính của chúng ta sau khi chúng ta qua đời và vì thế việc soạn di chúc là thật sự cần thiết. Chúng ta có thể tự lập di chúc dựa vào các mẫu di chúc soạn sẵn ở các phòng công chứng nhưng đôi khi các di chúc mẫu này không thể bao quát hết tất cả những gì chúng ta mong muốn thể hiện và vì thế chúng ta đôi khi lại cần có một di chúc được soạn thảo theo ý riêng của mình. Trong trường hợp do vậy chúng ta cần nhờ một luật sư có chuyên môn trong lĩnh vực thừa kế để hỗ trợ.

Bước 2: Trao đổi với những người giám hộ đương nhiên

Việc trao đổi trước với một trong những người giám hộ đương nhiên của chúng ta theo luật định là cần thiết (trước tiên là vợ, chồng, cha, mẹ, con đã thành niên hoặc nếu không có thì là ông, bà, anh ruột, chị ruột, em ruột và nếu không có nữa thì sẽ là bác, chú, cậu, cô, dì)[3] về những mong muốn của chúng ta khi chúng ta gặp những hoàn cảnh ngặt nghèo, nguy hiểm cho tính mạng để trường hợp trong tương lai dù chúng ta còn sống nhưng không còn khả năng thực hiện ý chí của mình được nữa (ví dụ như chúng ta bị bệnh tâm thần hoặc mắc bệnh khác mà không thể nhận thức, làm chủ được hành vi của mình) thì những người giám hộ đương nhiên có thể dựa trên mong muốn của chúng ta để quyết định các vấn đề có liên quan đến sức khỏe của chúng ta (ví dụ có đồng ý để bác sĩ phẩu thuật trong trường hợp chúng ta bị bệnh hiểm nghèo cần phẩu thuật không).

Bước 3: Đưa ra một định hướng trước

Nhiều người khi mất muốn được chôn cất đàng hoàng, có xây nhà mồ, người khác lại muốn được thiêu, đem tro vào trong chùa hay rải xuống sông, biển; có người lại muốn được làm đám tang dài ngày, người khác lại muốn được chôn ngay; có người lại muốn phải có sư thầy cúng tế linh đình, người khác lại không. Do đó, để giúp cho ý nguyện được thực hiện trọn vẹn theo đúng như mong muốn của chúng ta sau khi chúng ta qua đời, chúng ta có thể ghi phần ý nguyện này vào trong di chúc hay ghi vào một văn kiện riêng lẽ có chỉ định người thực hiện (thường là những người được hưởng di sản thừa kế của chúng ta và có thể xem đây là điều kiện bắt buộc để họ được hưởng di sản thừa kế của họ[4]) và lưu trữ chúng như các Giấy Tờ Quan Trọng khác được nêu ở Điểm 6 bên dưới.

Bước 4: Chắc chắn là chúng ta có mua đủ bảo hiểm nhân thọ

Nếu như chúng ta có con nhỏ mà chỉ có chúng ta là chỗ dựa hoàn toàn về mặt tài chính cho chúng thì chúng ta cần xem xét việc mua bảo hiểm nhân thọ, tốt nhất là sản phẩm bảo hiểm trọn đời để bảo đảm rằng khoản thu nhập của chúng ta mà bị mất sau khi chúng ta qua đời có thể được bảo hiểm chi trả đủ để nuôi nấng các con cái đến khi chúng trưởng thành, mà không phải nhờ vả vào người khác.

Bước 5: Cập nhật tài sản thừa kế và danh sách người được thừa kế thường xuyên

Lập được di chúc là quan trọng nhưng việc cập nhật thường xuyên nội dung di chúc cũng không kém phần quan trọng. Lý do cho việc phải cập nhật di chúc thường xuyên là bởi vì các tài sản của chúng ta không phải bất biến mà nó luôn luôn biến đổi theo thời gian. Ví dụ, hôm nay chúng ta có ba căn nhà nhưng ngày mai có thể chúng ta không còn căn nhà nào vì đã bán đi; hôm nay chúng ta có 1.000 cổ phiếu trong công ty A nhưng có thể ngày mai chúng ta chỉ còn có 100 cổ phiếu thôi nhưng lại mua thêm 500 cổ phiếu của công ty B. Bên cạnh đó, những người được thừa kế cũng không phải là bất biến, họ có thể sinh thêm (con hoặc cháu), ly dị,  họ có thể qua đời trước chúng ta, hay họ có những hành vi làm cho chúng ta không còn muốn cho họ được thừa kế tài sản nữa hay làm cho chúng ta muốn tăng giảm phần thừa kế dành cho họ và do đó chúng ta cần phải cập nhật lại di chúc đã lập.

Để tránh mất nhiều thời gian, việc cập nhật thông tin trong bản di chúc thường nên được làm 2-3 năm một lần hay nhân những dịp trọng đại của gia đình như đám cưới, thôi nôi, đầy tháng, ly dị.

Bước 6: Hệ thống lại Các Giấy Tờ Quan Trọng

Các giấy tờ quan trọng sau khi chúng ta qua đời có rất nhiều loại liên quan đến nhân thân và quyền sở hữu/sử dụng tài sản (“Các Giấy Tờ Quan Trọng”), quan trọng nhất vẫn là di chúc; kế đến là hôn thú, rồi đến các giấy tờ liên quan đến khối tài sản ví dụ như các giấy chứng nhận quyền sử dụng đất và quyền sở hữu nhà nếu chúng ta có bất động sản; hợp đồng hứa mua, hứa bán tài sản nếu chúng ta có ký thỏa thuận sẽ mua bất động sản hình thành trong tương lai; sổ tiết kiệm nếu chúng ta có tiền tiết kiệm trong ngân hàng, số tài khoản ngân hàng nếu chúng ta có tiền trong tài khoản vãng lai; hợp đồng bảo hiểm nhân thọ nếu chúng ta có mua bảo hiểm nhân thọ; giấy chứng nhận cổ đông hay giấy xác nhận góp vốn do người đại diện theo pháp luật của công ty ký nếu chúng ta có mua chứng khoán của các công ty hay góp vốn vào các công ty cổ phần, công ty trách nhiệm hữu hạn; hợp đồng lao động và các phụ lục (nếu có), giấy xác nhận quyền mua cổ phiếu cho nhân viên (nếu có) và sổ bảo hiểm xã hội nếu chúng ta đang làm việc cho các công ty; giấy tờ sở hữu phương tiện đi lại nếu chúng ta có xe hơi, xe gắn máy, bản liệt kê các tài sản có giá trị của chúng ta (vàng, đá quý, kim cương, tiền mặt), cùng với các hợp đồng vay mượn mà chúng ta đã ký với bên thứ ba, sau cùng là thông tin về luật sư, kế toán, bác sĩ riêng của chúng ta.

Bên cạnh phần tài sản, đôi khi chúng ta có một số trách nhiệm tài chính đối với người thứ ba mà những người thừa kế phải gánh chịu nếu muốn được hưởng di sản thừa kế của chúng ta, và do đó chúng ta cũng cần phải chuẩn bị các giấy tờ liên quan, chẳng hạn như hợp đồng vay công chứng nếu chúng ta có vay của ngân hàng hay giấy mượn nợ nếu vay người ngoài, hợp đồng thế chấp tài sản, hợp đồng bảo lãnh thanh toán nếu chúng ta có bảo lãnh cho ai đó (nếu có).

Vì sự quan trọng của các giấy tờ này, nên khi chúng ta còn khỏe mạnh việc cần thiết phải làm là liệt kê các loại Giấy Tờ Quan Trọng, xác định nơi cất giữ hiện nay và tập hợp lại để thực hiện bước 7 dưới đây.

Bước 7: Để Các Giấy Tờ Quan Trọng ở nơi an toàn

Chuẩn bị được Các Giấy Tờ Quan Trọng đã là điều tốt, nhưng có thể giữ chúng ở nơi an toàn phòng trường hợp cháy, nổ, trộm, cướp cũng không kém phần quan trọng. Mặc dù Các Giấy Tờ Quan Trọng có thể để ở trong ngăn tủ hay tủ sắt trong nhà nhưng cũng không thể loại trừ hoàn toàn khả năng nhà chúng ta bị rủi ro như cháy, nổ hay trộm, cướp. Do đó, cách tốt nhất vẫn là duy trì tối thiểu ba bản chính, một bản chính giữ tại nhà, gởi một bản chính cho luật sư riêng và một bản chính trong két sắt của ngân hàng nơi có cung cấp dịch vụ cho thuê ngăn tủ sắt ví dụ như Sacombank, Vietinbank.  Bên cạnh đó, chúng ta có thể scan tất cả các giấy tờ cần thiết bỏ vào trong hồ sơ lưu gia đình trên máy vi tính tại nhà. Chúng ta cần cho mọi người thân trong gia đình biết về việc lưu trữ các giấy tờ này để trong trường hợp cần thiết thì người thân của chúng ta biết ở đâu để tìm.

Nếu bạn cần thêm thông tin để biết là chúng tôi có thể hỗ trợ bạn về Các vụ việc dân sự, hay không xin vui lòng liên hệ trực tiếp đến số +84 (28) 3622 3522 hoặc email cho chúng tôi: info@phuoc-associates.com

Luật sư Nguyễn Hữu Phước Công ty Phuoc & Associates

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[1] Điều 646 BLDS 2005

[2] Điều 649 BLDS 2005

[3] Ðiều 32 của Bộ Luật Dân sự 2005

[4] Điều 646 BLDS

749 Bình luận

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