1. What is the order for waiver of inheritance?

• The spouse is a natural heir and may petition for waiver of inheritance within three months from the time they become aware of the decedent’s death. This is unrelated to the order of inheritance prescribed under Article 1138 of the Civil Code.
  • Legal heirs = natural heirs + heirs by order of inheritance
• The remaining heirs by order of inheritance waive inheritance according to the order prescribed under Article 1138 of the Civil Code. Only after all heirs in the prior order have waived inheritance will it be the turn of the heirs in the next order to waive inheritance.
  • First order: lineal descendants by blood. All children must first complete waiver of inheritance before it is the grandchildren’s turn, followed by the great-grandchildren. Only after that will the second-order heirs need to waive inheritance.
  • Second order: parents. If the decedent was adopted, this refers to the adoptive parents, not the biological parents.
    • If they have passed away, please attach the household deregistration transcript.
  • Third order: siblings, including full siblings, paternal half-siblings, maternal half-siblings, and adopted siblings.
    • If they have passed away, please attach the household deregistration transcript.
  • Fourth order: grandparents, including paternal grandparents and maternal grandparents.
    • If they have passed away, please attach the household deregistration transcript.
    • If the fourth-order heir is a foreign national, then of course this does not need to be attached.
• If a first-order child passed away before the decedent, and that child has children, namely the decedent’s grandchildren, those grandchildren will inherit per stirpes and directly enjoy the rights and bear the obligations. Together with the other surviving children, they must handle waiver of inheritance at the earliest time, within three months.

2. What is the time limit for petitioning for waiver of inheritance?

• According to Article 1174 of the Civil Code, the petition must be filed with the court within three months from the time the heir becomes aware that they have the right to inherit.
• Note: The starting point is the time when the heir becomes aware that they have the right to inherit. It is not necessarily the time of the decedent’s death.    
  • Date of awareness = date of death，For example: “A’s father passes away, and A becomes aware of it on the same day. In this case, the three-month period starts from the date of A’s father’s death.”
  • The date of awareness is not necessarily the date of death.
    • For example: “A had long been out of contact with their mother, and after the mother passed away, no one notified B. It was not until one day when B received a court document, such as a collection notice from a bank or asset management company, or a legal attest letter, that B learned the mother had passed away. In this case, the three-month period starts from the date the court document was received, based on the postmark.”
    • For example: The heir lives in the United States, has had no contact with the deceased person at all, did not attend the farewell ceremony, and has not heard that the family member died or does not even know that the prior-order heirs have already waived inheritance.
    • If a parent has died, and the child has been out of contact for a long time and did not know that the father or mother passed away, the child certainly would not have attended the farewell ceremony. The court is very likely to summon the heir or witnesses to appear in court to confirm the facts. In such cases, the time from applying for waiver of inheritance to case closure may be longer.
• After the first-order heirs waive inheritance, the next-order heirs generally calculate the three-month period from the date they receive notice of the prior-order heirs’ waiver or a court document, such as creditor collection, rather than from the date of the decedent’s death.
• Awareness of the right to inherit is unrelated to the heir’s subjective understanding of the law. In other words, the heir cannot claim that they did not understand the law. The period starts from the time when, legally, the heir has the right to inherit.
• It is sufficient for the heir’s petition to be delivered to the court with jurisdiction within three months. The entire waiver of inheritance process does not need to be completed within three months.

3. Do all heirs need to apply for waiver of inheritance together?

• Unless there is a special purpose, such as where the decedent’s estate is greater than the debts, but one heir is afraid to inherit due to personal debts, or the heirs wish to allow a specific heir to inherit the estate or inherit a larger share of the estate, it is otherwise necessary for all heirs to petition the court for waiver of inheritance.
• It is common for children of the decedent to have poor relationships or even no contact with one another, which often occurs among paternal half-siblings or maternal half-siblings. Because they do not know whether the others intend to waive inheritance, or because they are concerned that personal information in household registration transcripts and seal registration certificates may be leaked, the heirs may choose to handle waiver of inheritance separately.
• After the prior-order heirs claim waiver of inheritance, the decedent’s debts will naturally be inherited by the heirs in the later order. At that time, the creditor may directly request the later-order heirs to repay the debts left by the decedent.
• Even if there are dozens of heirs in total from the first to fourth orders, as long as everyone jointly files the same petition for waiver of inheritance, only one court fee of NT$1,000 needs to be paid.

• According to Article 1176, Subparagraph 5 of the Civil Code: “Where all heirs in the first order who are of the nearer degree of kinship waive their right to inherit, the lineal descendants by blood of the next degree of kinship shall inherit.”
  • Many heirs misunderstand this point. Without considering whether all child-generation heirs need to waive inheritance, they directly handle only their own family’s waiver of inheritance separately, which results in the grandchildren’s waiver of inheritance being rejected by the court.
• Mr. Wang previously failed in business and owed substantial debts to the bank. He had long been divorced and had not remarried. He had one son, A, and one daughter, B, with his former wife. A, the eldest son, had one son, C, who was Mr. Wang’s grandson. B, the eldest daughter, was unmarried, had lived in the United States for many years, and had no income or property in Taiwan. Finding the matter troublesome, she simply did not join A and grandson C in petitioning for waiver of inheritance. Unexpectedly, after A and C filed the petition, they soon received a court notice stating that C’s petition for waiver of inheritance would be rejected.
• Why was it rejected? Because among the first-order heirs, namely the child-generation heirs, someone had not yet completed waiver of inheritance. After eldest son A waived inheritance, eldest daughter B was still a lawful first-order heir. At that point, grandson C did not have the right to inherit at all, and naturally was not eligible to petition for waiver of inheritance.
• The recommendation for this case is that eldest daughter B should go to the nearest Taipei Economic and Cultural Office, TECO, to prepare a waiver of inheritance declaration and an overseas power of attorney, authorizing family members in Taiwan to handle the seal registration certificate and household registration transcript on her behalf. Finally, eldest son A, eldest daughter B, and grandson C should jointly petition the court for waiver of inheritance. They will then successfully receive the official court letter approving the waiver of inheritance for recordation.

6. Do the children, grandchildren, or spouses of siblings, who are third-order heirs, need to waive inheritance?

• Absolutely not. The children, grandchildren, and spouses of siblings, who are third-order heirs, do not have the right to inherit at all, and therefore naturally do not need to claim waiver of inheritance with the court.
• Inheritance across generations and per stirpes inheritance only occur with first-order heirs.

7. Is the legal effect of “waiver of inheritance” the same as “per stirpes inheritance”?

• After Mr. Li passed away, he left behind a considerable amount of real estate. Since his spouse had also passed away five years earlier, the inheritance should be handled by his eldest son A, second son B, and eldest daughter C, who are the child-generation heirs. The eldest son was advanced in age and, after various considerations, hoped that his son C, the grandchild-generation heir, would inherit in his place. Without discussing the matter with a land administration agent or lawyer, he handled the inheritance on his own.
• After eldest son A received the official court letter approving the waiver of inheritance for recordation, he went to the National Taxation Bureau to file estate tax. Only then did he discover that grandchild C actually had no right to inherit at all. The only persons with the right to inherit were second son B and eldest daughter C. Their statutory shares changed from the original 1/3 each to 1/2 each, rather than second son B, eldest daughter C, and grandchild C each having a statutory share of 1/3.
• At this point, if B and C act out of goodwill, they may of course compensate A or grandchild C with cash or by other means, but this may involve gift tax or house and land transactions income tax. However, if B and C are unwilling to pay even a single dollar to A or grandchild C, they bear no legal liability.
• From this, it can be seen that the legal effect of waiver of inheritance is not the same as “per stirpes inheritance.” The “per stirpes inheritance” referred to in Article 1140 of the Civil Code applies only where the first-order heir under Article 1138, Subparagraph 1 of the Civil Code, namely a lineal descendant by blood, died or lost the right to inherit before the opening of succession.
• n other words, only if eldest son A had passed away before his father, Mr. Li, would grandchild D inherit per stirpes in place of his father A and inherit A’s statutory share. In that situation, D, B, and C would each have a statutory share of 1/3 in Mr. Li’s estate.

8. Can inheritance be waived in advance?

• The legal effect of inheritance arises only at the moment the deceased person passes away. In other words, the heir begins to have the right to inherit only at that moment, and only then can there be a right of inheritance to waive.
• If the decedent has not yet passed away, there are no legal heirs, and naturally no one can waive the right to inherit in advance.
• Therefore, if a child signs a “waiver of inheritance declaration” in advance, it has no legal effect at all. The child will still have the right to inherit after the decedent passes away. 

9. Is the legal effect of “waiver of inheritance” the same as “giving up inherited estate property” in an estate partition agreement?

• Waiver of inheritance means that the heir waives all estate property and debts of the decedent. In other words, the heir waiving inheritance will not inherit any estate property from the decedent, and correspondingly will not bear any of the decedent’s debts, including unpaid taxes and fines.
• If you have debts of your own, and the decedent’s estate property is greater than the estate debts, and you are willing to give up inheriting the decedent’s property, please petition the court for waiver of inheritance instead of giving up inherited estate property through an estate partition agreement. This is because there is a high chance that the estate partition agreement made among the heirs may be found by the court to be an asset-sheltering act and be revoked.

10. After petitioning for waiver of inheritance, can the heir change their mind and withdraw it?

• In principle, once an heir petitions the court for waiver of inheritance, the heir may not change their mind and revoke the waiver of inheritance.
  • Because waiver of inheritance is a unilateral act, it becomes effective when the declaration of intent reaches the court. See Civil Proposal No. 13 of the Legal Symposium of the Taiwan High Court and its subordinate courts dated November 16, 2011. If the waiver of inheritance was not legally made, it does not have the effect of waiver of inheritance, and there is no issue of withdrawal. If the waiver of inheritance was legally made, it takes effect when the declaration of intent reaches the court, and therefore cannot be withdrawn.
• However, if the declaration of intent for waiver of inheritance is defective, such as where the declaration was made due to fraud, including another person providing false information about the estate property and debts, or due to coercion, the heir may still claim revocation of the waiver of inheritance. Afterwards, the heir must file a lawsuit with the court to confirm the right to inherit in order to restore the right of inheritance.

11. If limited inheritance already applies universally, why is waiver of inheritance still necessary?

• Although Article 1148, Paragraph 2 of the Civil Code provides that an heir is liable for the decedent’s debts only to the extent of the estate property acquired through inheritance, if the decedent’s creditor files a debt repayment lawsuit against the heir, the final judgment may state that the heir is liable only to the extent of the estate property acquired through inheritance. However, during compulsory enforcement, if the heir’s own property is mistakenly enforced against, even if the heir files an objection, it will still be quite time-consuming and burdensome.
• If the heir is certain that the estate debts are greater than the estate property, the heir should apply for waiver of inheritance when succession opens or when they become aware that they have the right to inherit, in order to avoid future problems.
          

12. Agency Fees for Waiver of Inheritance and Helpful Reminders from the Land Administration Agent