Inheritance and Division of Property

Inheritance and Division of Property

Inheritance is the process of passing on the rights and property held by a deceased person. The deceased person is called the “decedent” and the person who receives property is called the “heir. The property of a deceased person is called “estate,” and includes positive assets such as cash, savings, securities, movable property, real estate, and rights such as copyrights, as well as liabilities, which are negative debt assets such as loans from banks. An inventory of these assets should be made. The Civil Code has provisions regarding heirs and inheritance ratios, but if the decedent left a will, the will takes precedence. If there is no will, the inheritance is divided through a legacy division conference, in which all heirs consult with each other to determine the division of the estate.

Order of inheritors

The Civil Code defines who is an heir. The spouse of the decedent is always an heir, the first rank heirs are the children, the second rank are the parents, and the third rank are the brothers and sisters. If there is more than one person of the same rank, they all become joint heirs. Also, if there is a person of the first rank, the person of the second rank will not be an heir. For example, if the husband dies and there is a wife and two children, the heirs of the first rank would be the wife (spouse) and the two children. Thus, it is the issue of the order of legal heirs that first determines who the legal heirs will be. Even among heirs of the same rank, whether they are spouses
Therefore, it is necessary to understand that the issue of the order of legal heirs and the issue of the legal inheritance share are two different issues.

Rank 1	Spouse only Only children	Spouse: 1	Children: 1 *Divide by the number of children.
	Spouse and children	Spouse: 1	Child: 1 *Divide by the number of children.
Rank 2	Spouse and parents *No children.	Spouse: 2/3	Parents: 1/3 *Divide by the number of parents.
	Parents only *No spouse and no children.		Parents: 1 *Divide by the number of parents.
Rank 3	Spouse and siblings *No children, no parents.	Spouse: 3/4	Siblings: 1/4 *Divide by the number of siblings.
	Siblings only *No spouse, children, or parents.		Siblings: 1 *Divide by the number of siblings.

 

Proportion of inheritance

The Civil Code defines the proportion of the estate to be inherited by the legal heirs. This proportion is called the legal portion of inheritance. If there is only a spouse, the spouse inherits everything. If the heirs are only children, the children inherit everything. If the heirs are spouse and children, the spouse inherits one-half and the children inherit one-half. If there is more than one child, the one-half is divided equally by the number of heads. For example, if there are three spouses and three children, the spouse inherits one-half and each child inherits one-sixth. If the only heirs are the spouse and the decedent’s parents, the spouse inherits two-thirds and the parents one-third. If the heirs are the spouse and the decedent’s siblings, the spouse inherits three-fourths and the siblings inherit one-fourth.

Succession

If a child or sibling of the decedent’s legal heir dies before the decedent’s death, the child of the heir may inherit instead, and this is called “vicarious inheritance. In addition to the death of the heir, there are two other causes for the occurrence of vicarious inheritance: exclusion of the heir and disqualification of the heir. If the heir’s child is deceased, the child (grandchild from the decedent’s perspective) will inherit by descent, and if the heir’s brothers and sisters are deceased, their children (nieces and nephews from the decedent’s perspective) will inherit by descent. If the decedent’s grandchildren are also deceased, then the great-grandchildren will succeed by second succession, and so on with respect to the first rank. However, if the nephew or niece is deceased, the children of the nephew or niece are not allowed to reaccede. If the decedent’s parents died before the decedent’s death, the decedent’s grandparents will inherit, and if the grandparents are also deceased, the decedent’s grandparents will inherit to the next generation, but the Civil Code stipulates that if the decedent has no children, the lineal descendants will be the next in line to inherit. However, the Civil Code stipulates that if the decedent has no children, the lineal descendants will be the next in line to inherit. In addition, an heir who has renounced inheritance is considered to have never been an heir from the beginning, and therefore, there is no descent by descent.

Multiple inheritance

A numerus inheritance is when a legal heir has made the choice to approve the first inheritance, but dies before the specific division of the estate is made, and the next inheritance for that legal heir has begun. The difference is that a succession by descent is when the heir died before the decedent’s death, whereas a numerus inheritance is when the heir was alive at the time of the decedent’s death and died thereafter.

Reassumption of inheritance

When a decedent dies and inheritance begins, the legal heir must choose whether to accept or renounce the inheritance within a “deliberation period” of three months from the time of the beginning of inheritance. However, if the legal heir dies before making the choice to approve or renounce the inheritance, the inheritance related to that legal heir begins. In this case, the legal heir to the second inheritance (called the recast heir) must decide whether to accept or renounce the first inheritance as well. The reassignee may accept or renounce both the first and second inheritance, or renounce the first inheritance and accept the second, but he/she cannot accept the first inheritance and renounce the second.

Simple approval and limited approval

When inheritance begins, heirs have three months to decide whether to inherit or renounce the estate. There are two ways to inherit: simple approval and limited approval. Simple approval is a method in which the heirs inherit all the brass and negative assets that the decedent had. After three months have elapsed since the inheritance began, it is automatically deemed to have been approved in simple form. No notification to the court or other special procedures are required. In addition, if the inheritance is disposed of within the contemplated period of inheritance, the inheritance is deemed to have been approved in fee simple, and it is no longer possible to renounce the inheritance after that. Limited approval is a method of assuming the burden of debts and other negative obligations within the scope of the decedent’s positive assets. Limited approval must be filed with the family court. In addition, if one of the heirs has simple approval, he cannot have limited inheritance, and all co-heirs must file a petition.

Renunciation of inheritance

Renunciation of inheritance is a method of relinquishing all assets, both positive and negative, of the decedent. In order to renounce inheritance, a petition for renunciation of inheritance must be filed with the family court within 3 months of the day on which you became aware that you became an heir (this 3-month period is called the “deliberation period”). The renunciation of inheritance must be filed with the family court within three months of the day on which you became aware that you became an heir. If the court accepts the renunciation, the heir is considered to have never been an heir from the beginning, and inheritance by succession is not permitted. The three-month period for renunciation of inheritance is calculated “from the time when the heir became aware of his or her heirship,” which is relatively relaxed because the heir did not know that he or she was an heir or that he or she had inherited property. Even if more than three months have passed since the decedent’s death, the renunciation of inheritance is often approved, so there is no need to give up. However, you will be faced with the decision of whether or not to take on a large debt, so please consult with an attorney regarding whether or not to renounce inheritance and how to go about this procedure. In addition, if you renounce inheritance, the next highest ranking heir will inherit the property. For example, even if the wife and children renounce inheritance together, if the decedent’s parents or siblings are still alive, they will inherit and may be liable for the debt. When renouncing inheritance, it is advisable to consider the interests of these next-level heirs as well, and to consult well with these next-level heirs before renouncing.

Investigation of heirs

In the inheritance process, it is necessary to confirm who the legal heirs are (investigation of heirs). In practice, the family registers of the decedent from birth to death are collected to confirm the identity of the heirs. In addition to the current family register, the original family register may be required. If the research of heirs is not sufficient, an inheritance division conference may be held without some heirs, but such an inheritance division conference will be invalid. For example, if the husband, the decedent, had children out of wedlock before marrying his current wife, these children are also heirs, and the property division agreement cannot be conducted without regard to these children. Although it may be emotionally taxing for the wife and children to contact the children of the prior wife, they will have no choice but to proceed with the discussions through the intervention of an attorney or other means.

Investigation of inherited property

When an inheritance occurs, it is necessary to examine the decedent’s estate. This is because if new assets are discovered after the estate has been divided, it will be necessary to divide the estate anew with respect to the newly discovered assets. The inventory should accurately list all property owned by the decedent. Real estate, personal property, stocks, savings, artwork, etc., as well as debts and loans should be comprehensively listed. For real estate and artwork, the appraised value should also be researched. Investigation of these assets and their valuation is necessary at the stage of preparing the estate tax return.

Method of division of inheritance

There are three specific methods of dividing an estate: division in kind, division in value, division in lieu of compensation, and division in co-ownership. The division in kind is the division of inherited property as it is. For example, real estate is divided between the wife and the children, and deposits are divided between the children. In the division of real estate in kind, for example, the wife’s half interest and the children’s half interest are registered as separate parcels. In the case of a division by conversion, the inherited property is sold and the proceeds are divided among the heirs. In some cases, such as when the only inheritance is real estate, a division by value may be more equitable between heirs. In a compensatory division, a specific heir inherits a specific property and gives money or other property to another heir who does not inherit the property. For example, if the only inheritance is a home, the heir who continues to reside in the home would inherit the home and pay compensation to the other heirs. The last method of dividing an estate is called a co-ownership division, in which the estate itself is owned jointly among the heirs in proportion to their share of the inheritance. The consent of all co-owners is required to sell the property in co-ownership, and a claim for partition of co-ownership must be filed in order to dissolve the co-ownership status.