When a foreign national dies leaving assets in Japan but no will, the inheritance procedures can be complicated based on the following factors which are unique to inheritance procedures involving deceased foreign nationals with assets in Japan:
- Deciding which country’s laws apply
- Deciding what documents can be used to prove the relationship of the heir(s) to the deceased
- Time required for gathering necessary documents and their translation.
Even if the surviving family members of the deceased foreign national commence inheritance procedures under Japanese laws, such procedures rarely go as smoothly or as quickly as one expects. Usually, the final distribution of the assets to the heirs can be disappointingly expensive and time-consuming.
Having a valid will in place is one way to avoid these problems and facilitate a smooth inheritance procedure for the heirs of the deceased foreign national.
How then should a valid will for foreign national with assets in Japan be drafted to minimize the risks and inconvenience for the heirs of complicated and expensive procedures, while ensuring that the intention of the deceased is carried out to the greatest extent possible?
What Country’s Laws Apply to a Foreign National’s Will?
When drafting a will for a foreign national with assets in Japan, the following legal issues must be considered from the outset:
- Which country’s laws govern the validity of the will and the legal capacity of the testator (i.e., the foreign national)?
- Which country’s formalities for wills must be complied with (e.g., signatures, witnesses, notarizations, etc.)?
- Which country’s laws govern the required contents of the will?
The general conclusion of a rather convoluted legal theory is that the formalities of a valid will in the scenario above can either be made based on Japanese laws or the laws of the foreign national’s home country (or state in the case of the U.S.). However, a will based on Japanese legal formalities is more likely to facilitate a smooth conclusion of the inheritance procedures and the distribution of assets to the heirs.
In addition, the contents and validity of the will needs to be checked under the laws of the deceased’s country since that law will apply, in principle.
Drafting Wills based on Japanese Formalities
How then should the will of a foreign national be drafted?
The two most commonly used forms of will in Japan are the notary deed wills and holographic wills.
Notary Deed Wills
A notary deed will is by far the most commonly used form of will in Japan. A notary deed will is a will prepared by a notary public. Under Japanese laws, this kind of will must be notarized by a notary public. In addition, [Add statement about witnesses or any other formal requirements.] This kind of will is highly advantageous since it bypasses the probate procedures of family court, which normally has jurisdiction over inheritance matters, and results in a quicker distribution of assets to heirs. A further advantage is that fees for the preparation of the notary deed are generally [ ], and are significantly less expensive and less time-consuming than going through the probate procedures in a family court if there is no will.
There is no legal restriction on foreign nationals using notary deed wills; the only drawback being that notary wills prepared by a notary public must be in Japanese. Foreign nationals with limited Japanese skills can arrange for an interpreter to attend the will preparation session at the notary public’s office. Two witnesses other than the interpreter are required. For foreign nationals with basic Japanese language skills, the process is fairly straightforward and well worth the time and cost because of its advantages.
Japan allows holographic wills. This is a type of handwritten will prepared by the deceased/testator; i.e. the deceased foreign national leaving assets in Japan. The formalities for this are minimal: the date, and the name of the testator, together with his or her stamp (hanko). One advantage is that witnesses are not required. However, this type of will is subject to the expensive and time-consuming probate procedures at the family court, which almost renders this type of will practically meaningless as a way of ensuring quick and inexpensive distribution of assets to heirs. .
How Can Kobe Legal Partners Help You?
Shiho-shoshi Law Office Kobe Legal Partners can provide the following assistance to foreign nationals who would like to prepare a will covering their assets in Japan:
- Researching applicable foreign laws
- Participating in the will drafting session of a notary deed will together with the notary public
- Acting as a witness for a notary deed will
- Arranging for an interpreter to accompany you to the notary public’s office