Division of Inheritance
If there is a will of the decedent, the division of the estate will be based on the will. If there is no will, all heirs discuss how the estate should be divided through a legacy division conference. There are no specific rules regarding the method of the agreement on the division of property, so the heirs can freely decide by mutual agreement without petition to the court. An agreement on the division of property must be made by all heirs, and is invalid if even one heir is missing. Once an agreement on the division of property has been reached, it cannot be redone. However, in cases of duress or miscomprehension in the heir’s declaration of intention, such as when the heir was deceived by another heir, or when new property is found after the agreement on the division of property has been reached. Generally, when a minor performs a legal act, the parents are the legal representatives, but in many cases, the parents are also heirs in the estate division agreement. In cases such as when an estate division conference is held with both parents and the minor child as heirs, the parents cannot act as the minor’s agent because the parents and the minor child have a conflict of interest. In such cases, a “special proxy” is appointed by the family court, and the special proxy will conduct the inheritance division conference on behalf of the minor. The special agent is necessary only for the purpose of the estate division conference, and once the estate division conference is approved, the parents will be able to manage the minor’s property.
Preparation of an Inheritance Division Agreement
The result of the consultation among the heirs is summarized in a written agreement on the division of property. The rules for the written agreement on division of property include: (1) clear title; (2) accurate description of the property to be inherited by each heir as a result of the agreement; (3) clear date of the agreement; (4) signatures and seals of all heirs; and (5) a certificate of seal impression when submitting the document to financial institutions. According to recent Supreme Court precedents, after the decedent’s death, some heirs may not cancel bank deposits held by the decedent without permission. If some heirs alone canceled the bank deposits without the consent of all the heirs, they would have gained unjustly and would be sued for damages by the other heirs. When the bank learns that an inheritance has occurred, it will no longer accept the cancellation of deposits without a written agreement on the division of the estate and the seal registration certificates of all the heirs. This treatment has been clarified at the district court and high court levels, so care must be taken regarding the cancellation of deposits due to the death of a decedent. In addition, because of the operation of this practice, it is often the case that a decedent’s deposit is cancelled shortly before the decedent’s death. Such cancellations also require caution, as they can be the cause of a lawsuit for tort or unjust enrichment by the other heirs at a later date.
Mediation for Division of Inheritance
If all heirs are unable to reach an agreement on the division of property, or if there are heirs who cannot be contacted, the family court can be used to mediate the division of property. Mediation is a forum for discussion, with a court mediator acting as an intermediary to facilitate the discussion, and the heirs themselves will ultimately decide how to divide the property. The petitioner and the other party will talk to the mediator in turn, so that the heirs do not have to talk directly to each other. The conciliation must be filed with the family court that has jurisdiction over the domicile of the other party. When filing the petition, prepare and attach a written application for mediation, an inventory of the estate, a diagram of the heirs, a copy of the family register from the decedent’s birth to death, a copy of the family register of all heirs, a certificate of residence of each heir, and prima facie documentation of the estate. Family courts tend to actively seek disclosure of inherited property in order to avoid a situation in which heirs who hide inherited property gain from it. As long as the mediation continues, it should be considered quite difficult to continue concealing inherited property.
Family Court Judgment
If mediation is not successful, the estate division mediation will automatically be transferred to an estate division trial. At the trial, each heir will make written arguments and proofs under the direction of the judge. If the parties are able to reach an agreement during the trial, the trial will be terminated as if the mediation was concluded at that time. If not, the court will make a decision (trial) on how to divide the estate based on the claims and evidence of each heir. Basically, the estate will be divided according to the statutory inheritance shares.
Some heirs may have made contributions to the decedent, such as contributing to the formation of the decedent’s property or providing medical care for the decedent. The inheritance share that is added to the heirs who have contributed to the decedent is called the “contribution share” in situations such as discussions on the division of property and the calculation of the residual estate. In order to ensure fairness between heirs who have contributed to the estate and care of the decedent during his/her lifetime and other heirs, the contribution share is established for the purpose of modifying the inheritance share. Contributions can be made in the following types of acts: “housework” in the case of providing labor related to the decedent’s business; “contribution of money” in the case of providing property related to the decedent’s business; “medical care” in the case of medical treatment nursing care type in the case of engaging in medical treatment nursing care of a decedent under medical treatment; “support” in the case of supporting the decedent by providing living expenses for the decedent; and “management” in the case of managing the decedent’s leased real estate. The calculation of the inheritance share in the case of contribution is made by deducting the amount of contribution from the inheritance assets in advance, and the deducted inheritance assets are calculated based on the statutory inheritance share. If a claim for contribution is to be made in an estate division arbitration or trial, it is necessary to file a separate application for arbitration or trial to determine the amount of contribution.
In some inheritance situations, special benefits may become an issue. Special beneficiary refers to the benefit that a particular heir received from the decedent, and is not limited to “gifts during life” given by marriage, adoption, or as capital for living, but also includes “death gifts” and “bequests”. The purpose of this provision is to ensure fairness between heirs who received a bequest or living gift from the decedent and other heirs. If there is a special benefit, the amount of the special benefit is added to the amount of the estate, and the total amount is divided according to the statutory inheritance share or the inheritance share stipulated in the will. The addition of the amount of special benefits to the estate is called “reversion of special benefits”. The heirs who receive the “special benefit” will receive the amount obtained above, less the amount of the special benefit.