The Eldest Daughter Living at Home whom Her Late Mother Doted on — the Shocking Reason Why She Lost her Home in the Will.
A will that says, “I give all my property to XX who took care of me until the end of my life. This is a will often seen on TV or in novels, and other heirs who hear it often reflect on the situation and give up their inheritance. However, when such a will is actually discovered for the first time after death, inheritance troubles are inevitable.”
In this article, Yushi Okano, a licensed tax accountant specializing in inheritance tax, explains an inheritance dispute that arose from a “note on life after death” that stated, “My eldest daughter will inherit all my property.
When one of the parents passes away, who will take care of the parents who live alone? Many people are prepared for the possibility that this day will come, but many people panic when one parent becomes ill or suffers from dementia.
This is fine if one of the children lives with or near the parents, but if all the children are independent, live apart from their parents, and have jobs and families, it can be a headache.
In the case of the A family in this case, after the father’s death, the eldest daughter divorced and returned to her parents’ home. Above the eldest daughter were the eldest and second sons, both of whom were employed and married in the city. The mother doted on her eldest daughter, who was the youngest and long-awaited baby girl, and was happy to be able to live with her. Her older brothers were also grateful that their younger sister lived with their elderly mother.
Eventually, the mother became ill and died after being cared for by the eldest daughter for several years. After the funeral, when she was sorting through her mother’s belongings, she found an “End-of-Life Notebook” in her wardrobe. The note stated that the eldest daughter would inherit her home and all of her property.
Emotionally, this seems natural, since she had taken care of her mother until the end of her life. However, this is not always the case in the inheritance process. The eldest and second sons vehemently objected to their mother’s will. The situation developed into a “family dispute” between the eldest daughter and the eldest and second sons.
Unfortunately, a “Notebook on Life After Death” has no legal validity.”
It is hard for anyone to think about what will happen when they pass away. Some people may say, “I don’t care what happens after I die. Some people may say, “I don’t care what happens after I die; my family should take care of that. However, a will is an act of punctuating one’s life properly. Without a will, heirs cannot know the person’s intentions.
In this respect, the mother of the A family made her wishes clear in her “Notebook on Life After Death,” and wrote down her wishes for the aftermath of her own life. This is an act that should be emulated. With the “Notebook for Ending One’s Life,” the surviving family members can learn what kind of assets the mother had, and heirs can discuss how to distribute the inheritance among themselves based on the information in the “Notebook for Ending One’s Life.
However, there are two points in the way the mother left her will that could lead to a “family dispute”: First, the “Notebook for Succession” has no legal validity. This means that there is no legal problem if the heirs do not follow the contents of the note.
There are two ways for heirs to divide an estate: by following the will of the decedent (the person who died leaving property) or by discussing the division of property among all heirs through a legally-written will. A legally written will is generally classified into the following three types.
1) Self-written will
This is a will written by the testator himself/herself with pen on paper. Although many official documents no longer require a seal, a self-written will is not legally valid unless the full text, date, and name of the will are written and sealed by the testator himself/herself. Usually, an inventory of property is attached, but starting in 2019, an inventory of property can be prepared by computer or other means.
In addition, when an inheritance occurs, if a will in writing is discovered, it must be submitted to the family court for probate as soon as possible without being opened. However, starting in 2020, a system will be established whereby a will can be kept at the Legal Affairs Bureau, and a will in writing that has been deposited at the Legal Affairs Bureau by the decedent will skip probate.
2. notarized will
A notarial will is a will prepared by a notary public at a notary public office. The notary public dictates the testamentary statements of the testator, and two or more witnesses are required to be present at the time of the dictation. The notary public can introduce witnesses to you if you consult with the notary public. In principle, the original notarized will is kept at the notary public office for 20 years, and there is a “retrieval system” provided by the Japan Federation of Notaries. In the event of inheritance, probate by the family court is not required.
3. secret deed will
As the name suggests, a secret will is a will whose existence is certified by a notary public while keeping the contents of the will secret. A notary and two or more witnesses are required to prove the existence of the will. Although secret wills can be searched by the “search system” of the Japan Federation of Notaries, the existence of the will itself is difficult to discover because the person can keep it in his or her own possession. When inheritance occurs, probate by the family court is required.
Heirs have “legal inheritance share” and “remainder share.”
Of course, there are cases in which inheritance takes place in accordance with the contents of the “Life Notebook,” even if it has no legal effect. This would be the case if all heirs agreed to follow the contents of the will in the “Life Notebook” at the inheritance division conference.
However, this was not the case for the A family. To make matters worse, when the father inherited his father’s estate, he also left a will stating that his wife would inherit all of his property, and all of his children, including the eldest daughter, had renounced their inheritance in consideration of the future of their mother. For the eldest and second sons, it was outrageous that they were forced to renounce their inheritance this time as well! They were not happy about being forced to give up their inheritance again.
The second point that could easily lead to a “family dispute” in the A family’s case was that the mother had made a will that “one heir will inherit the entire property. The mother may have intended to protect her daughter, but this turned out to be a bad thing, resulting in disputes between the siblings.
This is because the Civil Code defines the “order of inheritance” and the “legal portion of inheritance. The spouse (husband or wife) is always the heir, and the other “order of inheritance” and “legal share of inheritance” are as follows. If there is a person of the first rank, the person of the second rank cannot inherit.
If there is a spouse and children, the “legal portion of inheritance” is 1/2 of the entire inheritance for the spouse, and the remaining 1/2 is divided equally among the children; in the case of family A, since the spouse is already deceased, according to the “legal portion of inheritance,” the entire inheritance would be divided 1/3 among the three children.
If the mother had left a will as required by law, instead of a “life note,” would the siblings have been able to avoid any disputes? Unfortunately, even in that case, a dispute could still occur. If the eldest daughter monopolizes the inheritance according to the mother’s will, the elder siblings can file a “claim for infringement of intestate succession” against her.
The “residuary estate,” also known as the “compulsory portion of inheritance,” is the minimum legally guaranteed portion of the inheritance that each heir is legally entitled to. If there are only children as heirs, the “aggregate residuary estate” allocated to all heirs is 1/2 of the entire estate, and the “individual residuary estate” of each heir is calculated by multiplying this by the legal inheritance share.
The siblings of Family A would be 1/2 x 1/3, and their respective “residuary estates” would be 1/6 of the total inheritance. Even if the mother’s will is valid, if the brothers and sisters do not agree that the sister will inherit the entire estate, the eldest and second sons can sue the court for infringement of their “residuary estate.”
As stated in the Constitution of Japan, “All people are equal under the law,” the “legal portion of inheritance” and the “intestate portion” are stipulated by law to ensure that the inheritance goes to the legal heirs equally. In some cases, a will that says “only the child will inherit” may have the opposite effect, as the family does not want their adorable child to suffer from the family strife.
The A siblings are still struggling, but the deadline for filing and paying inheritance taxes is within 10 months of the occurrence of the inheritance. If the total inheritance exceeds the basic allowance of (¥30 million + ¥6 million x number of legal heirs), inheritance tax must be paid once it is assumed that the property has been divided according to the legal inheritance share, even if no agreement has been reached on the division of the estate.
My brothers insist that the estate be divided according to the legal portion of inheritance. To do so, the savings and life insurance left by the mother were not enough, so the younger sister sold the family home, which was filled with family memories. After that, they had to live in an old one-room apartment. Although they were close siblings, they have become almost insulated from each other because of this incident.
To avoid such a situation, it is essential to consult a lawyer or tax accountant and discuss the matter with the children before writing a will.
Yushi Okano was born in Chiba Prefecture in 1971. Graduated from the School of Commerce at Waseda University. Tax accountant specializing in inheritance tax. Representative Partner of Okano Inheritance Tax Corporation ( https://www.souzoku-zei.jp/). Opened an office near Shin-Yokohama Station in 2005. Incorporated in 2010 and opened a branch office near Tokyo Station. He specializes in land valuation and has handled more than 3,000 inheritance cases throughout Japan. He is the author of “A book to file inheritance tax returns by yourself” (Gentosha Media Consulting) and “Review land valuation and inheritance tax will be surprisingly low” (Asa Publishing).