Inheritance of Koreans in Japan
Koreans residing in Japan
People from the Korean Peninsula who came to Japan before the war and settled in Japan are sometimes referred to as korean residents in Japan. Korean residents in Japan include South korean residents in Japan and north korean residents in Japan. It is said that there are more than 1 million korean residents in Japan, including those who have naturalized in Japan. Of these, approximately 600,000 are not Japanese citizens.
Status of Residence for Special Permanent Residents
Under the “Act on Special Measures concerning Immigration Control for Persons who have Renounced Japanese Nationality under the Treaty of Peace with Japan (Immigration Law)” enacted on November 1, 1991, those who have applied for and been granted a Special Permanent Resident Certificate by the Minister of Justice are granted the status of residence as a special permanent resident.
Governing Law for Inheritance of Inherited Property of Korean residents in Japan
When a petition for a trial or arbitration of inheritance is filed with a Japanese court, the Japanese court will apply Japanese private international law to determine the governing law. Article 36 of the General Law Concerning the Application of Law provides that “inheritance shall be governed by the law of the decedent’s home country. The law of one’s home country means the law of the country of one’s nationality. Since korean residents in Japan who have not been naturalized in Japan are Korean nationals, according to Japanese private international law, Korean law is the governing law for korean residents in Japan who are Korean nationals. Article 49 of the Korean Private International Law also states that the law of inheritance shall be governed by the law of the decedent’s home country.
The principle of comprehensive succession
Under Korean law, as in Japan, upon the death of a decedent, the rights and obligations held by the decedent are comprehensively assumed by the heirs. In addition, the division of the estate can be done through consultation among the heirs.
International Jurisdiction over Inheritance Division Judgment Cases
The jurisdiction of the trial cases concerning inheritance is stipulated in Article 3-11, paragraph 1 of the Domestic Relations Case Procedures Law, which states that the Japanese court has jurisdiction in the following cases.
- 1. When the address of the decedent at the time of commencement of inheritance is in Japan
- 2. When the residence of the decedent at the time of commencement of inheritance is in Japan, if the decedent has no domicile or the domicile of the decedent is unknown.
- 3. When the decedent had a domicile in Japan before the commencement of inheritance if there is no domicile or the domicile is unknown (except when the decedent had a domicile in a foreign country after the decedent had a domicile in Japan).
Therefore, if a Korean resident who had a domicile in Japan dies, the Japanese court will have jurisdiction over the inheritance trial case.
Jurisdiction over domestic arbitration cases
Article 3-13 of the Domestic Relations Case Procedures Act provides for jurisdiction over domestic affairs conciliation cases as follows
- 1. When a Japanese court has jurisdiction over a lawsuit or a domestic affairs trial regarding the matter for which the conciliation is sought.
- 2. When the domicile (or residence, if the other party has no domicile or his/her domicile is unknown) of the other party is in Japan
- 3. When the parties have agreed to the effect that they may file a petition for domestic affairs arbitration with a Japanese court.
Jurisdiction over inheritance cases is as stated above, and if the decedent’s domicile is in Japan at the time of commencement of inheritance, the Japanese court will have jurisdiction over the domestic affairs case. As a result, if the decedent has a domicile in Japan, Japanese courts also have jurisdiction over domestic affairs arbitration cases. Therefore, although Korean law is the governing law for the inheritance of most Korean residents in Japan, it is possible to conduct a conciliation or trial for division of property in a Japanese court.
When some of the heirs are abroad
In the case of inheritance by a Korean resident in Japan, there are many cases where the heir has Japanese nationality through naturalization, Korean nationality, or has moved abroad and has American or other nationality. However, the governing law of inheritance is determined based on the nationality of the decedent, so even if the nationalities of the heirs are dispersed among various countries, Korean law, the law of the decedent’s home country, will be the governing law. In the case of inheritance by Korean residents in Japan, there are many cases in which some of the heirs are located in Korea or the U.S. However, if a conciliation or trial case is pending before a Japanese court, the Japanese court will take the proceedings, and a summons will be sent from the Japanese court to the heirs residing abroad.
Property located abroad
Korean law, like Japanese law, adopts the principle of uniformity of inheritance, so that Korean inheritance law is applied to property located in any country. However, the possibility that local estate administration procedures (probate, etc.) may apply to property located overseas is not different from the case of inheritance by Japanese nationals.
Heirs and share of inheritance under Korean Civil Code
Under the Korean Civil Code, legal heirs are spouse, lineal descendants, lineal ascendants, siblings, and collateral blood relatives up to the fourth degree of kinship (Article 1000, Paragraph 1 of the Korean Civil Code). The heirs of the first rank are lineal descendants (Article 1000, Paragraph 1, Item 1 of the same law). If there is more than one lineal descendant, the lineal descendant of the parent nearest to the decedent is the first in line, and if there is more than one first in line, the inheritance is joint. If there are children and grandchildren, the children are first in line, and if there are multiple children, the children inherit jointly. In addition, Article 1003(1) of the Korean Civil Code stipulates that the spouse of the decedent shall be a joint heir in the same order as the lineal descendants of the decedent. In addition, Article 1009, Paragraph 1 of the Korean Civil Code provides that the inheritance shares are equal among heirs of the same rank, but Article 1009, Paragraph 2 of the Korean Civil Code provides that the inheritance share of the decedent’s spouse shall be 50% up of that of the lineal descendants in the case of joint inheritance with the heirs of the lineal descendants. As a result, the spouse’s share of inheritance is 1.5 times the share of inheritance of the lineal descendants. For example, if the heirs are a spouse and two children, the inheritance share is 1.5:1:1, which means that the spouse’s inheritance share is 3/7 and the children’s respective inheritance shares are 2/7. Note that the spouse inherits jointly with lineal descendants and lineal ascendants of the same rank, but in the absence of any of them, the spouse inherits alone and does not inherit jointly with brothers and sisters. In this way, the Japanese Civil Code and the Korean Civil Code have different provisions in that the heirs are lineal descendants, not children (issues related to the scope of heirs), and issues related to the inheritance share of the spouse (issues related to the inheritance share of heirs). There are various other differences between the Japanese Civil Code and the Korean Civil Code regarding inheritance. Therefore, it is necessary to interpret the Korean Civil Code in the case of inheritance of Korean nationals.
Inheritance by descent according to Korean Civil Code
If a lineal descendant or sibling who is the heir dies or is disqualified from inheritance before the commencement of inheritance, and those persons have a lineal descendant, that lineal descendant becomes the heir in place of the deceased or disqualified person (Article 1001 of the Korean Civil Code). If a lineal descendant or a brother or sister dies or becomes disqualified from inheritance before the commencement of inheritance, the spouse of such heir also becomes an heir by descent (Article 1003 of the same Code). If the ascendant has both a lineal descendant and a spouse, the lineal descendant of the deceased or disqualified heir and the spouse shall succeed to the ascendant in the same order and become joint heirs. The spouse, in the absence of lineal descendants, succeeds to the decedent and becomes the sole heir. (Article 1003(2) of the same law). If the spouse remarries after the death of the ascendant, the marriage is annulled and the ascendant cannot inherit by descent (Article 775, Paragraph 2 of the same law). Since lineal descendants and collateral blood relatives within the fourth degree of kinship are not allowed to inherit by descent, spouses of nephews and nieces of the decedent, and spouses of grandchildren of siblings of the decedent are not considered to be heirs by descent.
Renunciation of inheritance under Korean Civil Code
Under the Japanese Civil Code, it is stipulated that it is the children of the deceased or disqualified person who are to be the heirs by inheritance, and renunciation of inheritance is not a cause of inheritance by descent. The grandchildren of the decedent will not succeed to the inheritance of the children of the decedent who have renounced inheritance. On the other hand, under the Korean Civil Code, since renunciation of inheritance is not a cause of descent if all of the decedent’s children renounce inheritance, the grandchildren of the decedent will not inherit by descent from the decedent’s children. However, if all of the decedent’s children have renounced inheritance, the grandchildren of the decedent, as lineal descendants of the decedent, will be the decedent’s first priority heirs (lineal inheritance). In addition, since the Korean Civil Code stipulates that lineal descendants are the heirs by descent, if the decedent’s children or the decedent’s brothers and sisters have already died at the time of commencement of inheritance (at the time of the decedent’s death), and if all the children of the decedent’s children or the decedent’s brothers and sisters (the heirs by descent) renounce inheritance, then the decedent’s children and grandchildren of the decedent’s siblings (ascendants) will inherit on behalf of the decedent’s children and siblings (ascendants) as lineal descendants of the decedent’s children and siblings (ascendants).
Reassumption of inheritance according to Korean Civil Code
Under Japanese civil law, if the decedent’s children inherit by descent, the children of the decedent’s children (the decedent’s grandchildren) become the heirs by descent, and if their grandchildren inherit by descent, the decedent’s great-grandchildren become the heirs by descent (Civil Code Article 889, paragraph 2). Re-assumption is not allowed in cases where the decedent’s brothers and sisters are heirs. On the other hand, under Korean law, lineal descendants of brothers and sisters are also allowed to inherit by descent (Article 1001 of the Korean Civil Code), so if the brothers and sisters and their children have died before the grandchildren, the grandchildren of the brothers and sisters may inherit by reassumption.
Documents to be attached to the Conciliation for Division of Inheritance
When a zainichi korean resident files a petition for mediation on the division of property or an appeal for the division of property, the certificate of residence and the alien registration card of the deceased zainichi korean are required to be attached. For heirs also residing in Japan, the certificate of residence and the alien registration card must be attached. For heirs of Korean nationality residing in Korea, the Korean family register and certificate of residence will be attached. For heirs of Korean or American nationality residing in the U.S., documents showing an address in the U.S. must be attached.
Columns on Estate Planning Around the World
We are pleased to introduce columns we have written about estate planning in countries around the world other than Korean State. Please click on the titles of the columns below to read more about estate planning procedures in each country.
- ・Inheritance in California
- ・Inheritance in Hawaii
- ・Inheritance in England
- ・Inheritance in Switzerland
- ・Inheritance in Hong Kong
- ・Inheritance in Singapore
- ・Inheritance for New York
Services We Can Provide
We can assist you in all aspects of international inheritance procedures in cooperation with local attorneys, including preparation of legal opinions (affidavits) regarding the scope of heirs, etc., collection and translation into English of family registers and other necessary documents, and authentication procedures at embassies and the Ministry of Foreign Affairs.
If you have any questions about international inheritance, please feel free to call us at 03-5357-1750 (office hours: 9:00-18:00) or contact us via e-mail form(“https://kslaw.jp/contact/”).