Family, Inheritance and legally secured portion

Japanese business start-up consultant

The following contents on this subject of legally secured portions are written in accordance with Japanese civil law.
I will write an outline of the “legally secured portion” in relation to the international law another time.

In my work as a Shihoshoshi Lawyer, I often have opportunities to talk with heirs and relatives about the inheritance procedure for the deceased person’s real property. Because of these experiences, I often think about my life and death through a number of legal proceedings. I don’t think I need to think about this too seriously, but as long as I am a human being, I will die one day, and when I do die, I hope that I avoid conflicts between my heirs as much as possible.

In my opinion, Shihoshoshi Lawyers, who are primarily working on non-conflicting cases and legal administrative matters, have a different perspective from Bengoshi lawyers, who are working on any cases including negotiating legal disputes.

In Japan, when a person makes a will or gifts real property to someone before their death, or divides their estate among the heirs after the inheritance occurs, there is often a problem about the “legally secured portion”.

The “legally secured portion” in Japan acknowledges the right of heirs other than the siblings of a deceased person to get a certain percentage of the estate, if the deceased person’s parent is the only heir, the fixed percentage is one-third of the entire estate. If a child is included among the heirs, he or she will be allowed a legally secured portion, even if the child is an adult. When a spouse or a child (or both) are included as an heir, the legally secured portions is one-half of the entire estate. The individual heir multiplies this entire estate by their individual legal percentage.

It is easy to say “a certain percentage” in words, but it’s hard to know what the extent their estate is at the time of death. Even if the heirs clarify what is the whole estate, if a conflict arises because one of the heirs keeps an excessive proportion of the estate, and they refuse to negotiate, the heir who thinks they have not received what is their right should take action in a court. However, it is not always possible for such an heir to be granted their full entitlement in accordance with their wishes.

In today’s nuclear families, it is common for different generations not to live together when children legally become adults at 20 (at 18 from 1st April, 2022), and there might not be many opportunities for them to see each other if they live separately. However, inheritances will always occur at some point. I think the best way to avoid a conflict is actually to find as many opportunities as possible to keep in close contact, see each other once in a while, and keep the relationship between parents and children alive. I believe that with rights always come obligations. I don’t think looking after parents is an obligation, but I do believe that this responsibility as a child exists to some extent.

Please refer to the article about “Estate and Succession planning – 1-7. Making a will Part 1 & Part 2”

https://akikohorishihoshosilawyer.wordpress.com/2020/06/01/estate-and-succession-planning-1-7-making-a-will-part-1/

I will update every Monday.
For more information

https://lawhelp4u.com/propertyJapan/

Japanese business start-up consultant
Shihoshoshi Lawyer
(Judicial Scrivener)
Akiko HORI

Estate and Succession planning – 1-6. What happens if someone dies without a will?

Japanese business start-up consultant

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.

I will update every Monday.

For more information
Japanese business start-up consultant
Shihoshoshi Lawyer
(Judicial Scrivener)
Akiko HORI

How to Buy a property in Japan

Estate and Succession planning – 1-5. Beware long-term residents

Japanese business start-up consultant

Importantly, even if a non-Japanese national who lives in outside Japan at the time of his death owns his real property in Japan passes away outside Japan, the person receiving the real property in Japan should file the Japanese inheritance tax form, which is dealt with by a Japanese tax accountant.

 

Moreover, the problem is that long-term residents whose nationality is non-Japanese who have spent longer than 10 years within the past 15 years in Japan before any gift or inheritance or have the residence status set out in Appendix 2 of the Immigration Control and Refugee Recognition Act (such as a spouse visa or permanent resident) are subject to inheritance tax on their global assets even though his heir or the person receiving is non-Japanese national.

 

In comparison with the above case, persons who have the residence status set out in Appendix 1 of the Immigration Control and Refugee Recognition Act and who have been living in Japan for less than 10 years in total within the past 15 years before any gift or inheritance are not subject to gift or inheritance tax on their overseas assets.

 

However, under the inheritance tax rules, if the deceased person is a non-Japanese national and whose address is outside Japan at the time of his death, plus a non-Japanese national who has a domicile outside Japan acquires assets from the deceased through inheritance or bequest, inheritance tax on overseas assets is no longer applicable, regardless of how long those deceased persons and those persons receiving the inheritance or bequest had their address in Japan in the past.

 

In addition, under the gift tax rules, a person who has not had Japanese nationality within the 15 years before the date of no longer having an address in Japan and whose total period of having an address in Japan exceeds 10 years is not subject to the gift tax on their overseas assets after 2 years have passed since leaving Japan.

 

As an additional information, from 1st July 2020, the exit tax rule impose for unrealised capital gains on shares at the time of a departure from Japan. The total amount of the target asset value is 100 million Japanese Yen or more. It is introduced from the viewpoint of preventing tax avoidance for cross border moves.

 

Some long-term foreign residents (10 years or more) in Japan and non-Japanese national whose residence status set out in Appendix 2 of the Immigration Control and Refugee Recognition Act (such as a spouse visa or permanent resident) might be considering undertaking some possible planning. The above explanation is extracted for persons who should be extra careful. A precise advice should be necessary for individual cases.

 

Real property especially has various special rules and discounts for the inheritance tax.
Managing property efficiently and cost-effective is essential in international tax matters.

I hope the information is useful.

I will update every Monday.

For more information
Japanese business start-up consultant
Shihoshoshi Lawyer
(Judicial Scrivener)
Akiko HORI

How to Buy a property in Japan

Estate and Succession planning – 1-4. Private international law and Inheritance

Japanese business start-up consultant

The inheritance procedure, involving the family law, the matrimonial assets system, and the property ownership system, varies by country or region, and it is important to know in advance which country’s system is applied. Regarding the taxation system, tax types, taxpayers, asset calculation methods or tax rates, also depend on the country or region.
Thinking of the current economic situation, people who do business in Japan and own assets in Japan may consider how to plan the smooth and efficient succession of assets and the business they own. Estate planning costs, but ignoring preparation may cause more complicated problems in the future.
In order to prevent these from those happening, it is a good idea to have a legal professional to deal with possible solutions concerning the assets to reduce the future risk.


1. Continental Law and Common Law

 

  Countries that adopt Continental law, such as Japan, Germany and France, etc. Countries that adopt Common law, such as the United Kingdom and the United States, etc.
Inheritance The doctrine of universal succession The doctrine of Liquidation
Court involvement NO in principle YES in principle

 

2. Which country’s law applies?
(Private international law: Determining applicable law)

Article 36 of the Act on General Rules for Application of Laws in Japan stipulates that inheritance shall be governed by the national law of the deceased persons, which applies regardless of whether the inherited property is personal property or real property.
This principle comes from the tradition of continental law that regards inheritance as a system of inheriting property or status based on kinship. This has been criticised for ignoring the actual location of property and the needs of interested parties.
In consideration of these points, countries such as France, Belgium and China apply the succession law of where the real property is located; that for personal property is determined by the address of the deceased persons at the time of death. However, in this case, when following this principle, problems might occur when real property is located in multiple places or when it is not easy to determine the address of the deceased persons at the time of death.

 

3. New EU inheritance law

In 2015, the EU brought into effect a rule (Regulation No. 650/2012) that defines cross-border inheritance. According to this rule, the law applicable to the succession as a whole shall be the law of the State in which the deceased had his habitual residence at the time of death (Article 21 (1)), which applies whether the inherited property is personal property or real property. However, the Article 21(2) states that, if it is clear from all the circumstances of the case that, at the time of death, the deceased persons were manifestly more closely connected with a State other than the State whose law would be applicable under paragraph 1, the law applicable to the succession shall be the law of that other State. Based on this, the persons can choose the applicable law. The choice must apply to the whole of the succession, and not any part of it. It is important to note that the UK, Denmark and Ireland opted out of this rule. Accordingly, additional steps are desirable.

 

4. Taxation

This regulation only applies to succession to the estates of the deceased persons. It does not apply to revenue, customs or administrative matters. (Article 1(1)). It, therefore, means that the rule does not legislate on the tax position upon death, which is still governed by the laws of individual countries.
In Japan, the scope of duty to pay inheritance tax and gift tax is below.

 

Advance preparation therefore becomes even more important.

I hope the information is useful.

I will update every Monday.

For more information
Japanese business start-up consultant
Shihoshoshi Lawyer
(Judicial Scrivener)
Akiko HORI

How to Buy a property in Japan

Estate and Succession planning – 1-3. How to value the assets

Japanese business start-up consultant

The Japanese Law, tax system and inheritance system shall prevail in this blog.
Based on the above premise, the following rules will help you to understand the scheme in Japan. When proceeding this type of scheme, the case should be dealt with a tax accountant.


How to value the assets – For Inheritance Tax purposes

Importantly, the aim of this scheme is to pass on the property in the most effective way from an individual to a private company. Some of clients that come to seek an advice are not 100% confident about the detail of their property when starting a consultation. I can then assist them to create the list of their property. This problem is caused partly because of the format of the documents that are issued from different organisations.

 

1. Money in bank accounts
In Japan, many banks still use a bank book (See below), and the bank book records all banking transactions, so it is similar bank statement. In order to reduce paper use, the bank book may replace online banking statement, but it is still familiar to elderly people.
The remaining cash balance shall be valued when considering inheritance tax.

 

2. Stocks and shares
When stocks are listed on the market, they are valued based on their quotation on the Stock Exchange on which the stock is listed. The taxable time is the date on which the person died or his/her heir receives the gift. It is better to make a list of all the shares, including the name, nominal value and types of shares.

Unlisted private shares are valued as below.
If the person who acquires shares through inheritance or gifts is the person who already has the power to control the company, the net asset value method is used, which is the principle evaluation method.
If the acquiring person is not such a person, the dividend return method is used, which is a special evaluation method.
The valuation of unlisted private shares may be valued by a tax accountant because the evaluation method is crucial.

In this blog, a simple calculation method is stated.
A principle evaluation method (Net asset value method)
(Company assets – Company debt) / Number of issued shares x Number of shares to be inherited
A special evaluation method (Dividend return method)
{“(A) Annual dividend amount per share”/ 10%} × {“(B) Capital amount per share”÷ 50 Japanese yen}

 

3. Buildings
The value of a building for the inheritance tax calculation is the Fixed Assets Tax Evaluation price.

 

4. Land
In principle, the land value is the price which is published on the National Tax Agency website below, called Land Tax Assessment Value.
The roadside land price is the price per square meter of the residential land alongside the road in question, and the price is displayed in units of 1,000 Japanese yen.

https://www.rosenka.nta.go.jp/

 

5. Household and personal goods
The term ‘Household and personal goods’ means things such as furniture, paintings, TV, audio and video equipment, jewellery, cars, boats, antiques and so on.
You do not have to get a professional valuation for ordinary household and personal goods but if you do estimate the value, the open market value at the date of death is used. For this purpose, you may use an estimated figure.

I hope the information is useful.

I will update every Monday.

For more information
Japanese business start-up consultant
Shihoshoshi Lawyer
(Judicial Scrivener)
Akiko HORI

How to Buy a property in Japan

Estate and Succession planning – 1-2. Inheritance Tax and Succession scheme

Japanese business start-up consultant

The Japanese Law, tax system and inheritance system shall prevail in this blog.
When proceeding this type of scheme, the case should be dealt with a tax accountant.


In Japan, there are two types of typical private companies: Private share company, the so called KK (Kabushiki Kaisya) and Limited liability company, the so called GK (Godo Kaisha).

The private share company (hereinafter called KK) is the traditional company type, but the Limited liability company (hereinafter called GK) is popular these days because the initial cost of setting it up is cheaper than the one for a KK.

In theory, a characteristic of the GK is that ownership and management are not separated, a GK is chosen where it is less likely a dispute will happen among family and relatives when an inheritance occurs.

A KK is chosen when its divided ownership right and management of the company is a safeguard to emphasising business continuity.

In the case of a GK, in principle, the ownership rights can be realised when the inheritance occurs and the heirs can obtain the refund of the amount of their capital. However, the original owner can make provision in the articles of the company who will take over the ownership right to continue its business activities. In principle, when the original owner dies, the ownership right is withdrawn and his heir(s) can obtain only for the refund of its capital amount which was provided by the original owner.
However, the original owner can state in the articles of the corporation that who takes over the ownership right to continue its business activities.

In addition, in Japan, the GK is not a transparent entity and pass-through tax rules do not apply, therefore, corporation tax will be imposed to the GK.
Corporation tax considerations are important, but if family members become company officers, their legitimate salary can be deducted from company profit, and it effects to reduce their income tax.

Even though the Limited liability company (LLC) is named after a USA entity, its organisational framework varies from country to country. Knowing the system of the country is crucial.

 

I hope the information is useful.

I will update every Monday.

For more information
Japanese business start-up consultant
Shihoshoshi Lawyer
(Judicial Scrivener)
Akiko HORI

How to Buy a property in Japan

Estate and Succession planning – 1-1. Inheritance Tax and Succession scheme

Japanese business start-up consultant

Japanese Law, tax system and inheritance system shall prevail in this blog.
When proceeding this type of scheme, the case should be dealt with a tax accountant.


1. Inheritance Tax System

In Japan, inheritance tax is applied on the amount by which the value of property after certain exemptions acquired by inheritance exceeds the tax-free amount calculated below.
30,000,000 Japanese Yen + 6,000,000 Japanese Yen x The number of heirs.
Thus, the average family in Japan (of a Husband, Wife and 2 children) where the husband/wife owns net property of more than 48,000,000 Japanese Yen will have to pay inheritance tax.
There are many enquires about how inheritance tax measures are dealt with in Japan.

The calculation is complication and I will provide the information as a separate topic. At this time, I would like to explain how Japanese people use a legal entity as a measure to reduce inheritance tax measures.

2. Scheme Overview

Under this scheme, a private company is used in combination with the purchase of a real property investment, and provides an inheritance measure for wealthy people. The basic scheme is as follows.

A private company is set up by the owner and/or their designated heirs-to-be. Its board members are family members, so it is called ‘A family-only company’. This private company uses its capital or borrows money from Bank for these matters.
For example;
1. Investment on new real property
2. Ownership transfer from individually owned real property to the private company**
** The value of the assets in the estate should be assessed before this scheme.

The company profits distributes its profits to the family as dividends while running the property business and, at the time of inheritance, the inheritance tax is calculated based on the company’s share price, which normally less than the value of the physical real property. The gap between the value of the physical real property and the share price will result in an inheritance tax benefit.
By doing the above, it is possible to improve the profitability of assets, advance the time of business succession, and further reduce the tax burden at the time of inheritance.

To be continued..

I hope the information is useful.

I will update every Monday.

For more information
Japanese business start-up consultant
Shihoshoshi Lawyer
(Judicial Scrivener)
Akiko HORI

How to Buy a property in Japan

Japanese property system – Post-completion

Japanese business start-up consultant

After completion of the registration of the ownership:Post-completion

1.  Certificate for Registration Identification(登記識別情報)

When the Legal Affairs Bureau has completed the registration of the ownership, a Certificate for Registration Identification is given to a person entitled to register it.
This document identifies who is a rightful legal owner and as a proof of ownership, the PIN code is provided.

The PIN code shall be specified based on a combination of Arabic figures and other numbers for each real property and an applicant who has become a registered right holder.
The PIN code is sealed because it is strictly personal and it has never changed by a person.

Before 7th March 2005, Registration Identification was a stamp which was sealed by the Legal Affairs Bureau but the PIN code replaced now.
However the Identification document already issued is still valid and it is needed in case an owner of the real property sells the registered property.

 

2.  Registration system

The Registered ownership is a continuous record showing when the real property was first registered and all later purchases and sales, changes, division of the real property and so on. Now the system is computerised and the data is restored in the back-up computer system from time to time, so that to see all registration records, keeping track of the registered record is needed.

Property registration shall be made with regard to a physical description of real property or with regard to the following rights relating to the preservation, establishment, transfer, alteration, or extinction of a right.

1. Ownership
2. Superficies (Surface rights)
3. Farming right
4. Private easement (Servitude)
5. Priority privilege (Statutory lien)
6. Pledge
7 Mortgage
8. Lease
9. Mining right (Right of quarrying)

Lease right can be registered but traditionally and historically many owners of the land in Japan are not willing to register Lease right at the Legal Affairs Bureau and Lease right for the purpose of building ownership is governed by Act on Land and Building Leases. Practically the owner of the land and Lease Right holder are following the Act.

 

3. Notice of the acquisition tax

The tax payment notice of the acquisition tax takes time to be delivered to the registered owner. It generally takes about 4 to 6 months after the completion. The notice is issued from the local tax authority, which has jurisdiction over the area where the real property is located. The owner makes the payment at bank.

 

I hope the information is useful.

I will update every Monday.

For more information
Japanese business start-up consultant
Shihoshoshi Lawyer
(Judicial Scrivener)
Akiko HORI

How to Buy a property in Japan

Japanese property system – Real property transaction

Japanese business start-up consultant

In Japan, it is common and legally permitted for one estate agent to represent both a purchaser and a seller in the conveyancing process. It is called ‘Dual agency’.The whole responsibility of explaining the disclosure statement, such as Seller’s Property Information Form for the property is placed on an estate agent. Real Estate Brokerage Act regulates this.

1. Letter of Intent (LOI) (不動産購入申込書)

A letter of intent is prepared by a buyer to begin negotiations with a seller in real property transaction.
The document generally states the intentions, purchase price and the property details but payment terms and a date for an agreement is decided after consultation from the estate agent in charge. This procedure does not legally bind the buyer to buy the real estate.

2. Sale and Purchase Agreement and Property Information Form (売買契約書及び重要事項説明書)

A Sale and Purchase Agreement is a legally binding contract that is a valid agreement between the buyer and the seller of the real property.

Property Information Form is for the seller to give the detailed information about the real property, such as registered rights, the name of the owner, restrictions based on the law, regulation and so on.

The buyer generally delivers earnest money to the seller at the time of the agreement. The buyer may cancel the agreement by forfeiting his/her earnest money or the seller may cancel it by reimbursing twice its amount, until either party commences performance of the agreement. When the transaction is finalised, the earnest money is put toward the sales price.

3. The legal transfer of the real property (Conveyancing) (決済)

On the day of settlement, the buyer pays the remaining sum and other expenses, and then receives the keys and documents that come with the real property.
The Shihoshoshi lawyer takes a Registration Form to a Legal Affairs Bureau.

In Japan, property transaction will take effect only to the extent of the parties’ intention, which means property registration follows the principle of contract registration. The buyer needs to register his/her right in order to assert such a right to a third party but the registration is not indefeasible as it can be altered or cancelled, unlike registration systems in some countries, such as the Torrens system. However, in practice, there are few cases in which the registered rights are invalid and safety of transactions is impaired.

I hope the information is useful.

I will update every Monday.

For more information
Japanese business start-up consultant
Shihoshoshi Lawyer
(Judicial Scrivener)
Akiko HORI

How to Buy a property in Japan

Japanese property system – Tax

Japanese business start-up consultant

The below is the Taxes to sort out during the conveyancing process in Japan.

1. Stamp Duty (印紙税)

Stamps shall be obtained at a post office.
For this transaction, the duty is 100,000 Japanese Yen for a Sales and Purchase Agreement of over 100 million Japanese Yen and less than 500 million Japanese Yen in principle but when the date of agreement is before 31 March 2022, the stamp duty is 60,000 Japanese Yen.

Regarding a contract, in the Civil Code, no written agreement is necessary but under the Real Estate Brokerage Act, Article 37(1), an estate agent must issue a document concerning a property sale.

2. VAT (Consumption tax) (消費税)

Land itself is tax-free but a building is taxable, so that VAT is required when acquiring a building.
VAT is 10% as of 2020.
In addition, VAT will be applied on brokerage fee for an estate agent on the amount of the fee base.

3. Registration and license tax (登録免許税)

The tax applies when registering rights of land and a building at the Legal Affairs Bureau.
The tax amount is calculated by multiplying the assessed value of the fixed assets by the tax rate 2% for a building and 1.5% for land.
“The assessed value of the fixed assets” is not the same of the market value. It is determined by a local council on the Standard Valuation Code of the fixed assets basis by the Ministry of Internal Affairs and Communications. This assessment is renewed once every three years.
The valued price is stated on a certificate of evaluation for fixed asset tax.

4. A pro rata payment for Fixed assets tax and City planning tax (固定資産税・都市計画税の精算金)

A taxpayer for Fixed assets tax and City planning tax is the person that is the owner or the real property as of 1st January, so that the taxpayer doesn’t change even though a real property is transferred after 1st January. It is common for a seller and a buyer to agree to prorate Fixed assets tax and City planning tax per diem based on the delivery date for real property transaction.

5. Acquisition tax (不動産取得税)

In principle, the tax amount is calculated by multiplying the assessed value of the fixed assets by the tax rate 4%.
However, the tax rate applied to the acquisition of residential land and a building is at 3% because of the special measures as of 2020.
A payment notice is issued after a few months of the delivery date.

I hope the information is useful.

I will update every Monday.

For more information
Japanese business start-up consultant
Shihoshoshi Lawyer
(Judicial Scrivener)
Akiko HORI

How to Buy a property in Japan