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Inheritance(English)

Inheritance

  • 1. Inheritance/ Will and Testament

    ■Precedence of the Will and Testament

    If the decedent has written a will and testament prior to his death, the inheritance shall be administered according to what is prescribed in the said will and testament.

    ■In the absence of will and testament → legal succession

    In the absence of the will and testament, the succession shall be determined according to the civil law, in other words, legal sucession. Questions such as who have the right to inherit, and how much part of the legacy does he or she inherits, shall be defined according to the civil law.

    In case of foreigners, their nationality law applies.

    ■Who are the legal heirs?

    According to the civil law, the following are the legal heirs: @the spouse A the child B the linear ascendants (parents and/or grandparents) and the C brothers and sisters of the decedent.

    However, this does not necessarily means that all of the above shall automatically inherit a part of the legacy. Among the possible legal heirs, only the spouse will always be a legal heir.

    (a) If the decedent has spouse and children, then only the spouse and his/her children are his/her legal heirs. In this case, the parents, grandparents, the brothers and sisters of the decedent are not considered legal heirs.

    (b) If the decedent has children but has no spouse, then his/her children are his/her legal heirs.

    (c) If the decedent has spouse but has no children, the spouse and the linear ascendants are the legal heirs.

    (d) If the decedent has spouse but has no children and no living linear ascendants, the spouse and the brothers and sisters of the decedent shall be the legal heirs.

    (e) If the decedent does not have a spouse, children or linear ascendants but has brothers and sisters, then his brothers and sisters shall be the legal heir.

    (f) In case of an illegitimate child, the illegitimate child, shall be a legal heir if and only the deceased father prior to his death made a formal acknowledgement (paternity recognition or Ninchi) of the child.

    (g) Spouse's children by the spouse's former marriage do not have the legal right to inherit unless the decedent adopted his/her spouse's children before his/her death.

    ■How would the legacy be divided?

    The civil law does not only define who are the legal heirs but also determines the share to be received by each of the legal heirs.

    (a) The spouse and children as legal heirs:
    The spouse shall inherit half of the legacy while the remaining half shall be divided equally among the children.

    (b) The spouse and the linear ascendants as the legal heirs
    If the decedent has spouse but has no children, thus, making the spouse and the linear ascendants the legal heirs, the spouse shall inherit 2/3 of the legacy and the remaining 1/3 shall be inherited by the linear ascendants.

    (c) In cases where the decedent has no children and no living linear ascendants but has spouse and brothers and sisters as his/her legal heirs, the spouse shall receive 3 quarters of the inheritance while the remaining quarter shall be divided among the brothers and sisters of the decedent

    The illegitimate child who is duly recognized by the decedent prior to his death shall inherit half of what the legitimate child inherits.

    ■Would the inheritance be always divided according to the will and testament? What is legitime?

    In the beginning of this text, we wrote that inheritance shall be executed according to the will and testament of the decedent. However, that is not necessarily the case. There are some exemptions and one of these is what we call the legal secured portion of succession or the legitime.

    What is legitime? To understand this, let us look at the example below.
    A man legally married and has children has written a will and testament leaving all his estate to his mistress, thus, disinheriting his legal wife and children. However, this does not necesssarily mean that the legal wife and her children would have to give up their share in the inheritance. The civil law secures a portion of the inheritance for the legal spouse, their children and the decedent's linear ascendants.

    Please take note that the legitime is limited only to the legal spouse, the children and the linear ascendants of the decedent. The brothers and sisters of the inheritance could not inherit through legitime. The proportion of the secured portion as compared to the inheritance is as follows:

    (a) If the legal heir left is only the linear ascendants, the legal secured portion is 1/3 of the decedent's estate. The rest can be divided according to the will and testament of the decedent.

    (b) In case that the legal heir is the decedent's legal spouse and his children, the legal secured portion is 1/2 of the decedent's estate, The legally secured portion would then be divided to the spouse and his children. Half of the legally secured portion would be the spouse's share and the other half would be divided according to the number of children. The other half can be divided according to the will and testament of the decedent.

    Please take note that the legally secured portion, as the name implies, could only be acquired if a petition is made to the family court.

    Voluntary Settlement/ Agreement to the Partition of Estate

    As discussed above, the inheritance shall be executed according to the will and testament if there are any. If there is none, then, it will be legal succession and shall be executed according to the civil law.

    However, who would inherit what? If the inheritance is made up solely of cash, then, division of the inheritance would not be a problem. However, if there are real estates and other properties, there is a need for the legal heirs to discuss who would own which property. This meeting between the legal heirs is what you call voluntary settlement and the document derived from this settlement is called agreement to the partition of estate.

    (Furthermore, with the written consent from all the legal heirs, the estate shall be divided according to the said agreement.)

    The agreement on the partition of estate signed by all the legal heirs is important not only in withdrawing money from the bank and the registration of the inherited property, but this agreement shall also play a big part on preventing future problems among the successors.

    ■Could debts be inherited?

    Yes, debts could be inherited. If the decedent has debts, there is a possibility that this debt would be succeeded by the heirs. The heir has three months to decide if he/she would accept his/her inheritance. The heirs have an option whether to accept fully his/her inheritance, accept partially or abandon the right to inherit. Abandonment of the right to inherit shall mean abandonment of all the other inheritance, including other properties.
  • 2. Case Study

    Let us a look at a case of an intercultural marriage wherein a Japanese national was married to a foreigner.Theoretically, the inheritance is the same as that when both the couple are Japanese. The succession shall be administered according to the Japanese law because the succession took place in Japan. . However, cases of intercultural marriages are very sensitive and require a special way of treatment compared to that wherein only Japanese are concern.

    Here is a particular case where a Japanese, 67 years old died and his wife, Ms. T, a Thailander, inherited his estate. The estate was consisted of a condominium, a cash deposit (whose nominee is the decedent) and a life insurance. Although, the couple did not have children of their own, the husband has two children in his former marriage, Ms. A (40 years old) and Mr. B (37 years old).

    Since there are no will and testament, it was a legal succession as prescribed by the civil law. However, Ms. A could not forgive Ms. T, her father's wife who is younger than she is, for inheriting a part of her father's estate. Although there are no problems regarding the law theoretically, there is a problem in the execution of the partition of estate.

    The partition of estate could not be executed without the agreement on the partition of estate that bears the sign of all the legal heirs giving their consent to divide the estate accordingly. All the legal heirs, that is, Ms. T, Ms. A and Mr. B, must approve and give their consent. Without their approval, no agreement on the partition of estate could be made and the estate could not be divided. Thus, both the legalh eirs could not inherit their share to the estate.

    This would not have been a problem if only the decedent prior to his death has written a will and testament. If the written will and testament is a notarized one, then, the more that this problem could have been prevented.

    Although the case above tackles problems on inheritance regarding intercultural marriages between a Japanese and a foreigner, the same problems could also occur in marriages between Japanese couples.
  • 3. Assistance that JIS Legal Office Could Offer

    ■Assistance in Writing a Will and Testament

    As discussed above, problems regarding inheritance could be prevented if the decedent prior to his death writes a will and testament. We as professionals can help you in writing your will and testament.

    ■Assistance in Writing an Agreement on the Partition of Estate

    Because the case above involves intercultural marriage, the heirs became emotional to the point that even the families of Ms. T in Thailand became involved in the problem. Our office can assist you in solving complicated human cases like this before it becomes a legal case.

    ■Legal advice on what is and not possible. Consultation towards legitimate and fair inheritance

    Aside from assistance on writing a will and testament and agreement on the partition of estate, there are also other assistance and services that we could offer our clients. JIS Legal Office can offer you legal advice on what is and is not possible and assist you towards a legitimate and fair inheritance.

    (a) The legal heir could not receive his/her inheritance through legitime without an appropriate legal action. If the decedent's will and testament does not address the legal portion opt for the legal heir, the legal heir can demand this portion through an application on the abatement of his/her legally secured portion. We can assist you in filing this application.

    (b) We can also assist you on your application for adoption so that the spouse's children on his/her former marriage would have the right to inherit.

    Aside from the things discussed above, the civil law also has provisions on "co-successor who received gifts", "contributory shares of estate", "lack of qualification to inherit", "disqualification from inheritance" and others.

    Thinking ahead of the possible troubles in the future and trying to eliminate them one by one is the best way to prevent problems in inheritance. JIS Legal Office can advice you regarding the law provisions towards a fair and lawful parition of estate.

    If you have any inquiries, please don't hesitate to contact us.

バナースペース

JIS行政書士事務所

東京都行政書士会 板橋支部 所属
代表 新妻雄次
TEL: 090-3104-6183
E-mail: jis@goo.jp

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