Thankfully, I received a request from a reader about writing a will in Japan, and so I’m writing about that from a non-Japanese person’s perspective. We will all die someday. At the late stage of life, so it is worthwhile considering those who are left.
Who should consider leaving a will in Japan?
If you have non-negligible assets of value in Japan and have a person(s) whom you would like to inherit them, you should consider making a will. They may or may not be your family. They may or may not be in Japan.
In this regard, the critical point is not where the concerned parties reside but where the assets are located. When a person whose assets in part or whole are located in Japan dies, the assets cannot be legally transferred without taking legal steps.
For example, once a bank is informed of their account holder’s death, they immediately freeze the bank account. After that, no one including his/her family, creditor, even the tax office cannot withdraw any money from the account without proving that they have duly succeeded to the funds in the account. Real property is even more complicated than a bank account in terms of the change of ownership.
At this stage, your will helps a lot.
Is a will drawn up in accordance with the law in your county valid in Japan?
Yes. For example, if you are from Canada, and you already have a will drawn up in accordance with Canadian law, the will is also valid in Japan [1]. However, it will take more time and costs to probate (i.e., a family court checks the validity) such a will as your successors have to prove that the will is, in fact, drawn up in accordance with Canadian law.
So, in practice, for those who have assets over multi-jurisdictions [2], I recommend you prepare a will in each country where his/her asset is located in accordance with the law of the country.
How to draw up a will in Japan
There are three types of wills in Japan [3], namely, (1) a notarial deed will (kosei shosho igon), (2) a holographic (i.e. handwritten) will (jihitsu shosho igon), and (3) secret will (himitsu shosho igon). Among them, a notarial deed will is the most reliable and therefore used the most.
(1) Notarial deed will
Roughly speaking, you go to a notary office (see my former column Notary in Japan) and inform a notary of the contents of your will before the notary as well as two witnesses. Then notary prepares a will as a notarial deed and keeps the original at the notary office. You will be given two certified copies, which are kept by yourself and the executor. This process can only be done in the Japanese language but you may take an interpreter.
Probation (i.e. being checked at a family court before being executed) is not required for a notarial deed will.
(2) Holographic will
This is commonly known as a handwritten will, which is the easiest type of will. However, to make the will valid under the law, you have to write the contents by hand (except the appendix showing the list of the assets), date, sign and affix a seal. It is not necessarily to be written in Japanese. However, it has to be translated at a family court on being probated, and it will impose additional costs on successors.
(3) Secret will
This is rarely used. The merit of this kind of will is that you may leave a will not disclosing the contents of it to anyone while the fact that the will is drawn up is recorded at a notary office. The demerit is that as no one checks the contents of the will, there is a risk that the will is invalid in its formality (this demerit also applies to a holographic will). Probation is required.
What happens if you die intestate
A person sometimes dies intestate i.e., not leaving a will or leaving an invalid will. This is not the end of the world. The successors under the law (e.g., spouse and children) may negotiate and agree on how to distribute the estate among them. Even if they could not reach an agreement, the law prepares the rule on how to distribute the estate of the deceased.
However, in practice, there tends to cause many troubles if the deceased left no will. In the first place, it is more burdensome than you imagine to grasp his/her full assets without a will in the chaotic situation where a person passes away, in most cases, without notice. Even after you have sorted them out, it is often not easy to distribute such assets in accordance with the ratio under the rule. For instance, if there is a real property left to two children, they cannot cut the property half like a pancake, which tends to cause a dispute.
Note:
[1] See Article 36 and 37 of Act on General Rules for Application of Laws (法の適用に関する通則法), and Article 2 of Act on the Law Applicable to the Form of Wills (遺言の方式の準拠法に関する法律).
[2] However, if all those countries have a common law (i.e. English) legal system, things will be much easier.
[3] Actually, there are also special types of wills in special circumstances e.g. wrecked ship.
Disclaimer: While every effort has been made to ensure that the information on this article is accurate at the time of posting, it is not intended to provide legal advice as individual situations will differ. If you do require advice or wish to find out more about the information provided and related topics, please contact the author.
Text by: Atty. Atsushi Miyake of Miyake Law, Dec. 2019.
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