Wise advice: Those that fail to learn from the mistakes of history are bound to repeat them.

Japanese business start-up consultant

The legal system takes together processes and procedures, and each country constitutes its own category. The system was backed up by history, thus, history has interested me as a way of finding out about other countries.

 

There are very great differences between the Common Law and Civil Law systems in many areas of the law, and the Japanese system generally follows the Civil Law system. The traditional Japanese system was similar like in the old Roman system, where the head of the family had control over his sons and younger brothers, even if adults, and the family women including a widowed mother, wife and unmarried sisters and daughters with the head of the house having authority over all other members of the house, until he was succeeded by his eldest son in his death.

 

After the late 18th century, the French Revolution, which brought about the ideas that all adult family members were equal, so that the head of the family had no legal control over his adult sons and daughters, and that all had, at least in principle, equal rights of succession, was truly revolutionary in changing the law in this area. It also affected the Japanese system.

 

I will update every Monday.
For more information

https://lawhelp4u.com/propertyJapan/

Japanese business consultant
Shihoshoshi Lawyer
(Judicial Scrivener)
Akiko HORI

How can I disclaim an inheritance in Japan?

Japanese business start-up consultant

In Japan, there is a three-month period of time (called a deliberation period) during which the legal heir may accept or disclaim the inheritance (The Japanese civil code, Article 915). The deliberation period starts from the time when the legal heir recognises the deceased person’s death and that they are their legal heir. It does not automatically start from the date of the deceased person’s death. This period can be extended by the family court on the application of the legal heir, an interested party or a public prosecutor.

An inheritance windfall isn’t always welcome, and it is often the case that all you get is a debt after all. The Japanese civil code (Article 882) applies what is called “The doctrine of universal succession”, that the heir(s) succeed to all the rights and liabilities relating to the property a deceased person at the time of death. The heir(s) inherit the deceased person’s entire estate and debts, including any tax arrears, as well as assets. In the case where the debts of an estate exceeds its assets, it is better to consider disclaiming any inheritance. When the heir disclaims their inheritance, they are no longer obliged to pay the deceased person’s tax arrears.

Application for a disclaimer of inheritance is made to the family court in Japan. When the process at the family court is completed, the legal heir is no longer the deceased person’s heir and does not owe any debts. However, they will not be able to inherit any right, such as real property or financial assets. After the completion of the process, the family court will issue a “Certificate of Acceptance of the Application for Renunciation of Inheritance,” and in practice, a copy of the certificate is sent to creditors, such as a bank and a credit company.

It’s important to note that if you discover that the deceased person has money in the bank and you withdraw it and spend it, you might not be able to disclaim the inheritance afterwards as this could allow you to evade repaying this debt. However, if you use the money for the deceased person’s funeral expenses of or any other reasonable necessity in a common sense amount, you can still disclaim the inheritance at a later date. It is generally recommended that you keep as little money as possible and avoid using it.

The effect of an inheritance disclaimer is that the person who disclaims the inheritance shall be deemed not to have been an heir to it from the date of succession. If the sole or all statutory heirs of the first rank, the spouse or children of the deceased, disclaim their inheritance, then, the deceased is legally treated as if they had neither spouse nor children, and under Japanese civil code, the parents of the deceased, in turn, become the heirs. The parents, of course, don’t want to owe the debt, so they also go through the process of disclaimer of inheritance. Then there will be no parents, so under Japanese civil code, the siblings of the deceased person will be the heirs. The siblings don’t want to owe the debt, of course, so they also go through the process of disclaiming it.

 

In other cases, where (for example) the statutory heirs do not a wish not to break up a family business, and agree that the eldest son should be the only heir, the other statutory heirs would each make a disclaimer.

The issues mentioned above might make you worry if everyone needs to disclaim their inheritance within three months of knowing of the deceased person’s death, but don’t worry. For parents, the three months period of the disinherit counts after the child or children’s disclaimer is made. Likewise, the three months period for siblings only starts after the parent’s disclaimer is completed and they know that the parent has disclaimed their inheritance.

I provide support for the disclaimer process to the Japanese family court from abroad.

I will update every Monday.
For more information

https://lawhelp4u.com/propertyJapan/

 

Japanese business consultant
Shihoshoshi Lawyer
(Judicial Scrivener)
Akiko HORI

 

Estate and Succession planning – 1-7. Making a will Part 2

Japanese business start-up consultant

3. Jurisdiction and applicable law in Succession

 

In Japan, the article 37 of the Act on General Rules for Application of Laws is applied for wills and succession. Article 37 states that the formation and effect of a will shall be governed by the national law of a testator at the time of the formation. Concerning this provision, ‘the formation and effect of a will’ means only matters concerning the transmission of wills, such as the mental capacity, defective evidence of intention, effect of a will or validity of a will. When the will comes into effect at the time of death, the contents of the will, including maintenance obligations arising by reason of death is determined by article 36 of the same law.

Under the Act on the Law Applicable to the Form of Wills, both the governing law of the will (article 37) and the inheritance (article 36) are stated to be the national law, but there is a time gap between the will at the time it was established and the inheritance. If the nationality of the person is different between the time of making the will and at the time of death, the governing law might be different. To avoid the confusion, as a practical matter, a testator can choose which law governs succession to their estate.
In addition, when acknowledging a child or putting an estate in the trust under a will, article 29 (Formation of Parent-Child Relationship with Child Born Out of Wedlock) or article 7 (Choice of Governing Law by the Parties) of the same law is applicable.

As well as the Act on General Rules for Application of Laws, there is the Act on the Law Applicable to the Form of Wills, which was created by ratifying the Convention of The Hague Conference on Private International Law in 1961.
Under the Act on the Law Applicable to the Form of Wills, a formally prepared will becomes valid as long as it complies with the law of the place where the will is established, of the country where the testator has nationality, of the place where the testator had domicile, of the place where the testator had habitual residence or the law of the place where the real property is located.

 

4. Advice

This selective listing of a large number of laws in the Act on the Law Applicable to the Form of Wills allows a statutory will as far as possible, and most wills made under the law of the place where the testator resides will become valid in most of cases. However, in practice, a will which follows the methods of Japanese law is prepared separately in many cases in order to carry out the post-death administrative procedures for Japanese estate smoothly.
It is possible for an individual to make a will for themselves, but that is not without its risks. There might be technical issues that potentially could go wrong. If there are any errors, these could cause problems after the death. I can advise on arrangements for a will, and highlight potential problems that might arise.

I hope the information is useful.

I will update every Monday.

For more information

Japanese business start-up consultant 

Shihoshoshi Lawyer

(Judicial Scrivener)

http://lawhelp4u.com/advice/

http://lawhelp4u.com/propertyJapan/

Japanese property system

Most nations follow one of two main legal systems: Common Law (in the USA, Britain, Australia etc.) and Civil Law (in France, Germany, other European countries and also Japan).
In the 19th century, Japan based its Civil Code on the legal codes of France and Germany, both Civil Law systems.

Although it can be jointly owned, Civil Law systems regard property as indivisible in theory, so a transaction transfers ownership completely or not at all.
It makes no distinction between beneficial, legal or equitable titles, as does Common Law.

One analogy is that Civil Law treats property ownership as a box: whoever has the box, owns it. The owner can open the box and transfer the rights inside it to others, but still owns the box. In Common Law, property ownership is like a cake. You can keep the whole cake or divide it into slices. Each slice represents a part of the ownership of the property, as there is division of ownership, not just the transfer of rights.

The Japanese Civil Code bases property law on the principle of ownership. Article 29 of the Japanese Constitution includes the property rights of Japanese citizens:
1) the right to own property is inviolable;
2) property rights shall be defined by law, in conformity with the public welfare; and
3) private property may be taken for public use upon just compensation for this.
The Civil Code prohibits the creation of new real property rights not provided for in the law. The main property rights are ownership, possession, leases and usufruct. Accessory property rights include pledges, mortgages and easements.