Inheritance

2022/08/14Inheritance

Validity of a will made under the law of foreign country in Japan

Q. I’m from California, a U.S citizen and now living in Japan with my family. Now, I’m thinking of making my will under California state law. But I have some properties and assets like real estate and a bank account, securities, and so on both in California and Japan, so I’m worried if my will made under non-Japanese law like California state law is valid in Japan, meaning my will could be executed smoothly in Japan?

A. This is a very common inheritance-related question from foreign nationals living in Japan who have properties both in Japan and outside Japan.

1, Regarding the validity of the will made under non-Japanese law.

Article 2, Act on the Law Governing Formalities of a Will stipulates as following regarding goring law about the formality of a will. Therefore, according to article 2, item(ii), your will is made under U.S law, more accurately the California state law is valid in Japan.

Article 2 A will is valid in terms of its formalities if its formalities comply with any of the following laws:
(i)the law of the place where the act was performed (lex loci actus);
(ii)the law of the country where the testator had nationality, either at the time when they made the will or at the time of their death.
(iii)the law of the place where the testator had domicile, either at the time when they made the will or at the time of their death.
(iv)the law of the place where the testator had a habitual residence, either at the time when they made the will or at the time of their death; or
(v)in the case of a will concerning real property, the law of the place where the real property is located.

2. Would my will made under non-Japanese law be able to be executed in Japan smoothly?

However, you should take into consideration that the smooth execution process of your will including changing the name of registered ownership of inherited real estate or cancellation of the bank account based on the will is a different matter from the validity of your will per se. Because each of the related institutions in Japan will not proceed necessary execution procedure without verifying the legal validity of your will but they cannot recognize whether your will is valid in Japan so your legal heirs have the burden of proof of the validity of your will.
Though what kind of documents and procedures would be required depends on related institutions such as the Legal Affairs Bureau which is an administrative agency in charge of the land register, the financial institutions such as banks or securities companies, generally the following documents and proceedings are required.

1) Japanese translation of your will
Almost all related institutions irrespective of the public agencies or private corporations in Japan will not accept foreign documents as formal valid documents without Japanese translation. Specific qualification of the translator is not required, but they require a legal heir to make clear who translates the documents. If possible, for accuracy of the translation, a Japanese lawyer dealing with family law cases with good command of English is desirable as a translator.

2) Certification probing the will meets legal requirements as a valid will in terms of both formality and substance under your country’s law.
As most of the related institutions have no information to judge whether the will is valid under a testator’s country’s law, they require legal heirs to prove that the will meets the legal requirements under the testator’s country’s law. One of the practical ways is to submit the certificate that a local attorney at law in your country specializing in family law matters including inheritance cases writes to prove the validity of the will. Another way is that Japanese lawyers research the related law of a testator’s country and/or write the explanatory paper based on the result of research to prove the validity and legal heirs submit it to the related institutions. As for the former way, the Japanese translation will be attached to the original English certificate.

3) Probate in Family court in Japan.
Depending on the case especially, the formality of the will, the will made under a foreign country’s law may be required to go through a probate proceeding with a Family court in Japan.
Now, take a look at Articles 1004 and 1005, Civil Code in Japan as follows.

(Probate of Will)
Article 1004(1)    A custodian of a will, after coming to know of the commencement of inheritance, shall without delay submit the will to the family court and apply for probate. In the case where there is no custodian of a will, the same shall apply after an heir discovers the will.
(2) The provision of the preceding paragraph shall not apply to a will made by the notarized document.
(3)A will that has been sealed may not be opened unless in the family court in the attendance of an heir or his/her representative.
(Civil Fine)
Article 1005    A person who fails to submit a will pursuant to the provisions of the preceding Article executes a will without passing through probate or opens a sealed will in a place other than a family court shall be made subject to a civil fine of not more than 50,000 yen.

In practice, if the will is notarized by a qualified lawyer or a notary public in the testator’s country or at least an attestation of the testator’s signature by a notary public is attached to the will even though the formation of the will is not notarized will, such a will may not be required to file probate with the family court. However, so-called a ‘certified will’ which is recognized in California, U.S where a testator just puts their signature on a written will in front of two witnesses, will be required to go through the probate proceeding in Family court in Japan. Most of the related institutions such as the Legal Affairs Bureau and main mega banks or securities companies in Japan do not accept so-called a ‘certified will’ without the probate proceeding in Family court.

By the way, probate in a Family court in Japan is totally different from the one in the U.S or other countries.  The probate court in the U.S manages the whole process and inherited properties and will take a long time, sometimes, several years to finalize the whole process. On the other hand, the purpose of the probate proceeding in Family court in Japan is just to certify and let all the stakeholders meaning all statutory heirs know that the will does exist, not to judge whether the will is valid or not so that the proceeding is very simple and will finish within a few court sessions.

Consequently, if you are thinking of making a will under your country’s law, it would be a good idea you would make it in the form of a notarized will considering the smooth execution of your will in Japan. Also, as for the execution procedure regarding inherited properties located in Japan, in order to secure the smooth procedure in cooperation /consultation with your local attorney in your county, you might want to refer to the name of a Japanese attorney whom you can trust considering his/her experience, language proficiency, honesty and various elements as a candidate advisor or designate his/her as an executor in your will.

3, Under which country’s law, should I make a will?
As mentioned above, the will made under a foreign country’s law (Non-Japanese law) is valid in Japan. However, if you have properties both in Japan as well as your county, considering smooth and efficient execution process specifying your property located in Japan, I would like to recommend you would make two wills, meaning as for your properties located in Japan, you would make the will under Japanese law and as for your properties located in your country, the one under your country’s law.

However, in that case, you need to take into consideration Article 1023, item(1), Civil Code in Japan, and keep it in your mind.
(Conflict between Previous and Later Will)
Article 1023(1)If there is a conflict between a previous and a later will, the latter will shall be deemed as having revoked the previous will with respect to the part that is in conflict.
(2)The provision of the preceding paragraph shall apply mutatis mutandis to the case where a will conflicts with a disposition or other juristic act made while the testator was still alive.

That means if you make multiple wills, you must be careful that those wills will not conflict with each other and the will drafted later will not deny the one drafted previously.
In order to avoid such a situation, for example, just in case, you write explicitly in a preceding will that I make this will regarding my properties and assets located in country A (e.g. California, the U.S) and I make another will other than this will regarding my properties and assets located in country B (e.g. Japan), then also you write again explicitly in a latter will that I make this will regarding my properties and assets located in country B and this will never deny the validity of my will which I have already made as of Aug 31st, 2022. regarding my properties and assets located outside country B.

4, Conclusion
International inheritance such as making a will is a very complicated and bureaucratic strict process including a lot of paper works will be required. So it would be a good idea that you would consult with some experienced family law attorney both in Japan and your country before starting making the will. Hope this blog will be helpful for you.




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