Overview
In this article, I would like to write about inheritance without a will in Japan. (I will write about wills in a separate article.)
In Japan, court proceeding is not always required for inheritance without a will. The heirs can discuss among themselves how to divide the assets belonging to the estate.
Court proceedings become necessary when the heirs cannot agree on how to divide the assets. In such case, one of the heirs will need to apply to Family Court to start a court proceeding.
Under Japanese law, debts are also succeeded by the heirs. Therefore, if the deceased had more debts than assets, the heirs should think about waiving (disclaiming) the inheritance to avoid succeeding the debts.
Out-of-court discussions
In Japan, the heirs can discuss among themselves how to divide the assets belonging to the estate. If they reach an agreement, title to each asset can be changed to an heir in accordance with the agreement.
It should be noted, however, that banks, Legal Affairs Bureau (the institution which administers registration of real properties) and other institutions will require various documents. They require documents to confirm that all heirs have participated in the agreement and that each of the heirs truly had an intent to agree.
The requirement of documents can be more complicated in case of international inheritance compared with domestic inheritance.
For example, family relationship of Japanese citizens can be proved by a copy of Family Registry (koseki tohon), but substitute documents will be necessary for foreigners.
Also, the intent of Japanese residents is usually proved by affixing of registered seal (jitsu-in) and the certificate of registered seal (inkan-shomei-sho), but substitute documents will be necessary for non-residents.
You will need to coordinate with banks, Legal Affairs Bureau and other institutions regarding what documents are required. If necessary, lawyers and judicial scriveners will be able to assist you in coordinating with those institutions.
Japanese court proceedings
When does Japanese court have authority to handle the case?
Japanese court will have the authority to handle the case if the decedent’s last place of residence was in Japan.
The nationality of the decedent does not matter when we think about whether Japanese court has authority over the case, but it will matter when we think about which law is applicable to the inheritance. Please see below about the applicable law.
Mediation at the court
The court proceeding usually starts with mediation.
The court will appoint mediators for each case, and the mediators will try to facilitate discussions and help the heirs agree on how to divide the assets.
It is typical that there will be several dates for mediation. At the end of each mediation date, the mediators will confirm with the parties what has been discussed on that day and what each party shall think about before the next mediation date.
If the heirs reach an agreement through mediation, the agreed term will be written down in an official court record called “chotei chosho“. You will be able to change title to the assets in accordance with the court record.
Judgment (Shinpan) by the court
If the heirs cannot reach an agreement through mediation, the court proceedings will go on to the next stage.
The court will review the evidence and allegations submitted by the parties and issue a judgment called “shinpan”. You will be able to change title to the assets in accordance with the judgment.
Which law is applied to international inheritance?
General principle
The laws of the home country (state) of the decedent will be applied to decide the heirs and the statutory share of each heir.
Thus, if the decedent was a citizen of Germany, the law of Germany will be applied. The law of Germany will be the basis of negotiation, mediation, and judgment if it is to be issued.
Exception
There is an exception to the general principle stated above. It is when the law of the home country (state) of the decedent directs that Japanese law be applied.
The most typical example is as followings.
If the decedent was a citizen of the U.S.A and his/her home state was Hawaii, the Japanese law says that the law of Hawaii shall be applied.
However, under the law of Hawaii, you apply the law of the place of the real property for inheritance of real properties.
In this case, Japan will honor such rule and apply Japanese law for real properties located in Japan.
Many of the common law countries (states) have the same rule as Hawaii regarding real properties. Thus, such returning back to Japanese law happens quite often when real properties located in Japan are concerned.
Statutory share under Japanese law
Statutory share under Japanese law is provided in Part V, Chapter II of the Civil Code. The following is a simplified explanation of typical cases. Please check with a lawyer for the actual case.
(1) Children
Children of the decedent will be heirs. If a child has pre-deceased the decedent, the children of the child will be heirs (Article 887).
(2) Lineal Ascendants (e.g., parents)
If there is no one to become an heir pursuant to (1) above, lineal ascendants (e.g., parents) of the decedent will become heirs (Article 889).
(3) Siblings
If there is no one to become an heir pursuant to (1) or (2) above, siblings of the decedent will become heirs. If a sibling has pre-deceased the decedent, children of the sibling will be the heirs (Article 889).
(4) Spouse
The spouse of the decedent will always be an heir (Article 890) and inherit the assets together with the persons who become heirs pursuant to (1) to (3) above. The statutory share of the spouse will depend on who the other heirs are (Article 900).
If the heirs are the spouse and children, the spouse will get 1/2 and the children will get the remaining 1/2, to be divided equally by each child.
If the heirs are the spouse and lineal ascendants, the spouse will get 2/3 and the lineal ascendants will get the remaining 1/3.
If the heirs are the spouse and siblings, the spouse will get 3/4 and the siblings will get the remaining 1/4.
Waiving (disclaiming) an Inheritance
Under Japanese law, debts are also succeeded by the heirs. Therefore, if the deceased had more debts than assets, the heirs should think about waiving (disclaiming) the inheritance to avoid succeeding the debts.
Waiver of an inheritance needs to be filed to Family Court within 3 months from when an heir knows that he/she is an heir of the inheritance (Article 915).
If you are thinking about waiving an inheritance, you should not dispose of the assets belonging to the estate. Such conduct will be deemed as accepting the inheritance.
Retaining a lawyer / Inquiries
As explained above, if you are an heir, you will need to participate in out-of-court discussions, or participate in the court proceedings.
You can either do this yourself or retain a lawyer to represent you. You are not obliged to retain a lawyer.
However, retaining a lawyer will help you a lot especially if you do not speak Japanese or reside outside Japan, or there are large differences among the heirs.
I have handled many international inheritance cases and will be able to help you in various ways.
If you have any inquiries, please feel free to contact me by E-mail or Contact Form. I will get back to you as soon as possible.