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Wills and probate
What rules and restrictions (if any) govern the disposition of and succession to an individual’s property and assets in your jurisdiction?
The disposition of property and assets is generally governed by the property law under the Civil Code. The succession system was overhauled by the amendments to the Civil Code following World War II. There are two kinds of succession:
- testate; and
An individual may dispose of his or her property and assets by sale, gift or otherwise during his or her lifetime, unless such disposition is against public order or it conflicts with another heir’s statutory secured portion of the estate which might be claimed to be returned to such heir.
Certain categories of heir (eg, children, spouses and lineal ascendants (not including siblings)) have a secured portion of the estate that they cannot be deprived of, even through a will. If the lineal ascendants are the only heirs, one-third of the estate will be reserved for them; otherwise, half of the estate will be reserved. An heir can claim for such statutory reserved shares within one year of learning of the commencement of inheritance and the existence of a gift or a testamentary gift which may be abated. Such claim will also be extinguished by prescription if 10 years have passed since the commencement of inheritance.
What rules and procedures govern intestacy?
In case of intestate, the surviving spouse is always an heir:
- children of the deceased are first-rank heirs;
- lineal ascendants (eg, parents and grandparents) are second-rank heirs; and
- siblings are third-rank heirs.
If there is a spouse and children, the spouse will take half the estate and the other half is divided equally among the children. Second and third-rank heirs have no share in the estate. If there is a spouse but no children:
- the spouse will receive two-thirds; and
- the lineal ascendants will receive one-third.
If the lineal ascendants have already died, the spouse will receive three-quarters of the estate and the siblings will receive a quarter.
If a prospective heir dies before the deceased, such heir’s lineal descendant will become the heir. In addition, in cases where a child’s lineal descendant also dies before the deceased, such lineal descendant’s lineal descendant will become the heir.
What rules and restrictions (if any) apply to the governing law of a will?
Under the Japanese conflict-of-law rules, succession is generally governed by the laws of the deceased’s nationality. The execution and effect of a will is governed by the laws of the testator’s nationality when the will is executed. However, Japan has ratified the Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions (October 5 1961) and pursuant to the domestic law enacted thereunder (the Hague Convention and Law), a will is legally valid if it complies with:
- the laws of country where the will was executed;
- the laws of the country of the testator’s nationality when the will was executed or the testator is dead;
- the laws of the country of the testator’s domicile when the will was executed or the testator was dead;
- the laws of the country of the testator’s habitual residence when the will was executed or the testator was dead; or
- in case of a will regarding immovable property, the laws of the country where such immovable property is located.
What are the formal and procedural requirements to make a will? Are wills and other estate documents publicly available?
If there is a will, the distribution of the estate will be effected in accordance with the will. Any person over 15 years of age can make a will. A will must follow the strict formalities set out in the Civil Code. There are three kinds of ordinary will:
- a will written in the testator’s own hand (a holographic will);
- a will by notarised document (no fewer than two witnesses must be in attendance); and
- a will by a sealed secret document.
A will can be revoked at any time by the testator. Wills and other estate documents are not publicly available.
Validity and amendment
How can the validity of a will be challenged? Can the will be amended after the decedent’s death?
The validity of a will may be challenged if:
- the will does not satisfy any of the statutory requirements;
- the content of the will is against public order;
- the will was made by mistake or fraudulently;
- the testator lacked the capacity necessary for making a will;
- the descendant died before the testator;
- the subject asset did not belong to the inherited properties on the testator’s death; or
- the will was withdrawn by the testator before he or she died.
If a decedent dies, his or her lineal descendant will generally not replace the descendant and the will shall be void to the extent of the relevant property, unless it was specifically intended to have the linear descendant succeed such property, in which case the property will be separately subject to the intestate succession process and such lineal descendant may participate in this process.
How is the validity of a will established in your jurisdiction?
Executors designated by the testator or family court will execute the will as the heirs’ representative.
To what extent are foreign wills recognised? Do any special rules and procedures apply to establishing their validity in your jurisdiction?
If foreign wills satisfy the requirements under the Hague Convention and Law, they will be valid (practically speaking, most foreign wills will be valid). There are no special rules or procedures for foreign wills, but some Japanese banks are unfamiliar with them and may take time to recognise their authenticity.
What rules and procedures govern:
(a) The appointment of estate administrators?
In general, no estate administrators will be appointed and all heirs will administrate the estate. However, if all the heirs agree, an estate administrator may be appointed, and if the claimant for division of the estate is filed with the family court, the family court might appoint an estate administrator to preserve the estate. If there is a will, the executor may administrate the estate to the extent necessary for the will’s execution.
(b) Consolidation and administration of the estate?
There is no consolidation of an estate in Japan.
(c) Distribution of the estate to heirs?
If there is no will, the estate of the deceased, as well as his or her debts, passes directly to the heirs. Until the estate is distributed among the heirs, it will be jointly owned by the heirs and each heir may dispose of his or her own share. The division of the estate will take effect retrospectively on the death of the deceased; however, the division may not affect the third party who acquires an interest in the estate before the division. Therefore, if an heir has sold his or her share in the succeeded land to a third party before the division, such a sale is valid even after the division.
Under the Supreme Court’s old view, the bank deposit in the estate of the deceased will be automatically divided in proportion to the statutorily determined ratio of succession and will belong to the statutory successors on the death of the deceased. However, in 2016 the Supreme Court took a new approach, whereby the bank deposit in the estate of the deceased will not automatically be divided on the death of the deceased and will be dealt with by the division of the estate agreed or conciliated among the heirs or adjudicated by the family court.
(d) Settlement of the decedent’s debts and payment of any taxes and fees?
An heir can accept or renounce succession. An heir may also accept succession with a reservation by declaring that he or she is liable for the debts of the deceased only up to the amount of the succeeded estate. Renunciation or acceptance with reservation must be made within three months of the heir becoming aware of the death of the deceased and of the fact that he or she is to succeed to the estate. The heir must prepare an inventory of the estate and declare renunciation or acceptance at the family court in order to effect renunciation or acceptance with reservation. When an heir fails to renounce or accept succession with reservation within the three-month period, he or she is deemed to have accepted the succession.
Are there any special considerations specific to your jurisdiction that individuals should bear in mind during succession planning?
For a foreign testator, a will by notarised document will be recommended based on the grounds that:
- it was pre-certified by a notary public (an honourable profession in Japan, usually occupied by ex-judges, ex-prosecutors or other legal professionals);
- the execution process will be made more smoothly;
- it is less likely that a will shall be lost, since original wills are held at the notary public office; and
- notarised wills are not required for the probate process, while holographic and secret-sealed wills are submitted to family courts and certified through the probate process.
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