Wills and Remainders
- 1 Types of wills
- 2 Self-written wills
- 3 Secret Wills
- 4 Notarized Wills
- 5 Probate of Wills
- 6 Designation of an executor
- 7 Effect of an estate division agreement that differs from the contents of the will
- 8 Intestate succession
- 9 Right to claim for the amount remaining in intestate succession
- 10 Percentage of Intestate succession
- 11 Calculation of the amount of the residuary estate infringement
Types of wills
If there is a will of the decedent, inheritance will be carried out in accordance with the will in principle. There are three types of wills: a written will, a secret will, and a notarized will.
A self-written will is one in which the testator writes the contents, date, and name of the will in his or her own handwriting and seals it with his or her seal. Of all the types of wills, the most common is the self-written will. Although it used to be required that all wills be handwritten, the Civil Code has been amended to allow for the use of typed documents for the inventory of property. Since the date is an absolute requirement, a will without a date or a signature line that is not self-signed (handwritten) is also invalid. In addition, if there is more than one will, only the later will shall be valid, and the earlier wills shall be invalid. Litigation is often filed to contest the validity of a will. While the form of the will may be at issue, in most cases, the issue is whether the decedent who created the will had the capacity to make the will at the time it was created. The argument is that the testator may have taken the unconscious decedent’s hand in the hospital and forced him to write the will, or that the decedent was already suffering from dementia at the time the will was prepared and lacked the capacity to understand the contents of the will.
A secret will is a will that has been prepared, signed, sealed, and sealed by the testator, and signed, sealed, etc. by a notary public and two or more witnesses on sealed paper.
A notarized will is one in which a notary public writes the contents of the will in the presence of two or more witnesses in accordance with the testator’s instructions, and the testator, notary public, and two or more witnesses sign and seal the will after approving its contents. The notarized will is kept at the notary office.
Probate of Wills
For a self-written will and a secret deed will, if the will is kept or found, it must be probated at the family court without being opened. The probate court will confirm that the will was written in accordance with the form of the Civil Code. Notarized wills do not require probate. Probate of a will is a simple process of bringing the original will to the court and having the court stamp it. Forgetting to probate a will does not invalidate it; it only penalizes the heirs who failed to do so.
Designation of an executor
An “executor” may be designated in the will to ensure that the contents of the will are faithfully carried out. If an executor is not designated in the will, the family court can appoint one.
Effect of an estate division agreement that differs from the contents of the will
In principle, the estate is to be inherited in accordance with the will. However, if the testator did not prohibit in the will an agreement to divide the estate differently from the will, and if all parties concerned agree, the estate can be divided differently from the will.
Although a decedent is free to designate in his or her will whom he or she wishes to inherit his or her property, some heirs are entitled to a residuary estate as a minimum right to acquire the estate. The Civil Code stipulates that a will cannot violate the provision of intestate succession, so intestate succession takes precedence over wills. Those who have the right to bequeath residue are called “residuary estate holders,” and the law defines which heirs fall under this category. Those who are the residuary estate holders are the legal heirs other than brothers and sisters. Specifically, they are the decedent’s spouse, the decedent’s children, the decedent’s grandchildren, the decedent’s parents, and the decedent’s grandparents. If the decedent’s children are deceased, the grandchildren will inherit by descent, but they will also acquire the right of survivorship. Those who cannot claim the right of survivorship include the decedent’s brothers and sisters, those who have renounced inheritance, those who are disqualified from inheritance, those who have been excluded from inheritance, and comprehensive legacies.
Right to claim for the amount remaining in intestate succession
Even if the will violates the provisions of the intestate succession provision and the inheritance acquired is less than the intestate share, the intestate share is not automatically recognized, but the heirs whose intestate share has been infringed can claim the deficiency from the other heirs. The right to claim a deficiency from other heirs in the event of an infringement of the residuary estate is called the right to claim an infringement of the residuary estate (Article 1046 of the Civil Code). The right to claim the infringed amount of the residuary estate is extinguished if the holder of the right of claim does not file the claim within one year from the time when he/she became aware of the commencement of inheritance and the existence of a gift or bequest to be set aside, or within 10 years from the time of commencement of inheritance. There are no rules on the format of the request, but in order to leave evidence that the request was made within the time period, it is often made by certified mail with proof of delivery. There are three types of claims for reduction of residuary property: bequests, gifts made during one’s lifetime, and gifts made upon one’s death.
The percentage of the residuary estate is set at one-third in the case of claims by parents and one-half in all other cases. The sum of the residuary shares of all heirs in the calculation of the residuary share is called the gross residuary share. The relative residuary share is one-half when the heirs are spouses only, children only, spouses and children, spouses and parents, and spouses and siblings, and one-third when the heirs are parents only.
Percentage of Intestate succession
Next, the percentage of the residuary estate of each heir is calculated by multiplying the gross residuary estate by the legal inheritance share of the heirs entitled to the residuary estate. The percentage of each heir’s residuary estate is sometimes referred to as the individual residuary estate. For example, if the heirs were a spouse and two children, the gross residuary share would be one-half, and since the legal inheritance share of the spouse and two children is one-half for the spouse and one-fourth for each child, the individual residuary share of the spouse would be 1/2 x 1/2 = 1/4 and the individual residuary share of the children would be 1/2 x 1/4 = 1/8. If the heirs were the spouse and the mother of the decedent, the total residuary estate would be 1/2, the spouse’s legal share would be 2/3, and the decedent’s mother’s legal share would be 1/3, thus the individual residuary estate would be 2/6 for the spouse and 1/6 for the decedent’s mother.
Calculation of the amount of the residuary estate infringement
The residuary estate holder cannot receive the residuary estate without filing a claim for the amount of the residuary estate, but the amount of the residuary estate is calculated as follows.
Amount of reduction of the residuary estate = “property that is the basis of the residuary estate” x “percentage of the residuary estate (total of all heirs’ residual estates)” x “legal inheritance share” – “profit gained by the holder of the residuary estate”.
*The “property that forms the basis of the residuary estate” means the property (inheritance) that the decedent had at the time of inheritance, plus any special benefits, any living gifts made within one year before the start of inheritance other than special benefits, any gifts made with knowledge that they would cause damage to the heirs with no special benefits, and the calculation is made by subtracting the debt of the decedent from the above amount.
*The “profit obtained by the holder of the right of survivorship” is calculated by adding bequests and special benefits to the profit obtained by inheritance, and subtracting the amount of inherited debts.