In circumstances where someone is living in one country and has assets or property elsewhere in the world and they die without a will, the deceased person’s domicile should first be considered for inheritance purposes. The deceased person might have no permanent residence, but they must have a domicile. Although deciding their domicile would take account of their actions and intentions before their death, proving their domicile ultimately depends on the evidence available at the time. Nationality and residence are not regarded as the only definite evidence but both can have an impact on considering where domicile is. Under the Japanese international inheritance rule, domicile applies to all substantive legal issues related to the inheritance, such as a cause of inheritance, time, place, the heir(s) that are eligible to inherit, inherited property and renunciation.
The information below is about the basic principles of the Japanese international inheritance rule.
1. Cause, time and place of death
A death should be registered with a responsible authority.
Whether an official declaration of a person’s disappearance causes inheritance depends on their inheritance law. Under the Japanese principle, when a Japanese court declares a non-Japanese national’s official disappearance, Japanese law has jurisdiction only over their property in Japan.
2. The order of succession and right of inheritance
According to Article 36 of the Act on General Rules for Application of Laws in Japan, inheritance shall be governed by the national law of the decedent, which is based on the deceased person’s domicile. The scope of this rule applies related to eligible heirs, their ability to inherit, such as the inheritance rights of a legal entity or unborn child, and an order of succession.
3. Inherited property
Regarding the inherited property, the same rule of Article 36 of the Act on General Rules for Application of Laws in Japan applies. However, when the inheritance law applying to a deceased person does not permit the inheritance of goods based on its location law or of a damages claim based on a tort, these rights are not inherited.
For example, even though real property ownership may be inherited under the applicable inheritance law of the deceased person’s home country, if its location law limits land ownership, then land ownership is not inherited.
4. Will and testament
Disposal of property by will and choice of law are determined by the inheritance rule.
I will write about will and a choice of law on another occasion.
5. Division of property
Matters relating to the division of inherited property, such as the timing, method, and effects of inheritance are covered by the inheritance rule. Under the Common law system, the division of property may be conducted by a court. However, when the jurisdiction is granted to the law of the deceased person’s domicile, and if it allows jurisdiction where the property is located, a court where the property is located will handle it. Therefore, the Japanese family court might have jurisdiction if the deceased person has a residential address in Japan or if the property is located in Japan. Where the Japanese family court has jurisdiction, the procedural matters are governed by law of the forum, which is Japanese law in this case.
6. Administration of the inherited property
Under Article 882 of the Japanese civil code, the heir(s) succeed to their inheritance on the death of a person, but under the Common law, the inheritance is first attributed to an estate manager or executor, and managed and finalised by those persons, with the involvement of court. If a deceased person domiciled in England left property in Japan, the law initially applicable is the law in England. As previously stated, under the Common law, an executor is needed, and the executor is appointed according to the procedure provided under the law in England.
However, when an eligible heir applies for his inheritance to a family court in Japan, based on his property in Japan, the family court in Japan may have jurisdiction. Under the Domestic Relations Case Procedure Act in Japan, there is a procedure for appointing an executor for a succession, provided however this applies only when it is obvious that there is no heir for the deceased person. On the other hand, there is no procedure for the appointment of an executor when there is an eligible heir.
If this rule is rigidly applied when it is obvious that there is an heir, it would be impossible to appoint an executor in Japan, and this would not fulfill the objective of the General Rules for Application of Laws. Therefore, it is necessary to interpret the procedure flexibly at a family Court in Japan and apply the appointment procedure to a case which there is an heir, and allow the executor to administer the deceased person’s property in Japan. Importantly, it is necessary to have a family Court understand a case like this, and to explain the international inheritance rule for an individual case.
I hope the information is useful.
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