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Calculate the amount of heritage of each heir according to the inheritance.
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Purpose of the inheritance system of modern law
Regarding the inheritance system of the modern law, it is said that it is intended to guarantee the life of the bereaved family who lived with the heir and to prevent the inherited property of the heir from becoming immaterial. There is a theory to see.
Generally, what is caused by the death of natural people is often called inheritance, but there is also a system of pre-inheritance that does not cause death (The Constitution of JapanBefore the enforcementUnder the Meiji constitutionIn JapanFamily inheritanceIs whether or not the cause of death).
Inheritance of property in inheritance
According to the comparative law, when the cause of inheritance occurs (death, etc.), the property is transferred from the heir to the heir:Comprehensive successionとLiquidationThere is a form of.
- Comprehensive succession
- At the same time as the cause of inheritance occurs, the inheritance's property is comprehensively transferred to the heir without any liquidation procedure between the heir and the person with an interest. Under this system, the inheritance's assets, including debt, are all inherited, so another procedure (Abandonment,Limited approval) Is required. This is the form adopted in Japan, Germany, etc.
- However, even in this case,Limited approvalIf the system of is adopted, it will be in a form close to liquidation if it goes through the prescribed procedure.
- In this form, when the cause of inheritance occurs, the inherited property is not immediately succeeded to the inheritee, but is once attributed to and managed by the personal representative of the dead person. Then, this person liquidates the property relationship with the interested person of the heir, and if the positive property remains as a result, the heir succeeds it. This is the format used in the United Kingdom and the United States.
- Unlike comprehensive succession principle, the heir does not succeed the debt of the heir. However, if the inherited property is small, the cost may be overturned, and even if it is large, it may be economically preferable not to go through the clearing procedure. There are also cases where a person takes over the property.
Inheritance in Japanese law
The inheritance law in Japanese law mainly defines inheritanceCivil lawIt is specified in the fifth volume. The rules on inheritance in civil lawwillAllows you to make provisions that differ from the provisions of the Civil CodeOptional rulesWhile many are included,RemnantsDo not allow exclusion by will as prescribedForced regulationAlso exists.
- About Japanese Civil Code In the following, only the title is described.
Start of inheritance
The heir inherits all rights and obligations that belong to the property of the heir from the beginning of inheritance (when the heir died) (896 article).
A person who succeeds to the inheritance's financial statusHeir(Sozokun). In contrast, the inherited property, rights, legal formerHeirIt's called (Hisokuzoku Nin). Before the start of inheritance,Estimated heirIt is decided by the start of inheritance due to the death of the heirs. In addition, the general qualification that can be an heir is called the inheritance ability, and the corporation does not have the inheritance ability,FetusHas inheritance ability (886 article).
- The son of the heir
- The direct ancestor of the heir
- Heres siblings
Also, the spouse of the decedent will always be the heir, and will be the heir in the same order as the person who became the heir in the above order (890 article). It will be inherited between equal ranks, and will not be inherited between other ranks unless specified by a will. Unless you are nominated in a will or in the process of adoption, a person who is as good as a stranger has no inheritance rights. Example: All blood sisters have the right to inherit the father's property, but they do not have the right to inherit the property of the half-mother.
If the child of the heir or the siblings of the heir died before the start of inheritance and lost the right of inheritance due to inheritance disqualification or abolition of inheritance, the child of that person will succeed (887 articleItem 2・889 article2). thisInheritanceThe person who inheritsAgent, Who inheritedVictimThat.
The attacker must be a direct descendant of the heir (887 article2 proviso). The child of the adopted child who was born before adoption is not a direct descendant of the heir (Article 727 of the Civil Code recognizes that there is a consanguineous relationship between the adopted child and the adopted parent, but It is not admitted that a blood-kind relationship occurs with the blood-kind.) It is not possible to inherit an inheritance from the family (large size May 7, 5 Minshu 11:11).
In addition, inheritance does not occur as a cause of surrender, and inheritance does not occur for direct descendants (children, grandchildren, great-grandchildren, etc.) of the person who abandoned inheritance.
If the child of the heir who is the attacker loses the right of inheritance due to death, disqualification of inheritance, or abolition of inheritance, the grandchild inherits it (887 article3). thisSecond-generation inheritanceThe direct attacker will continue endlessly in direct lineage (children, grandchildren, great-grandchildren...). However, if the heirs are brothers and sisters, the attacker will be up to the nephew's niece, and the re-inheritance of the big nephew's niece is not permitted (889 articlereference).
You knowingly let the heirs or other heirs die,willFor example, destroy or forge a calligraphyArticle 891A person who has carried out a serious misconduct as prescribed in (cause of disqualification of inheritance) naturally loses his qualification as an heir in the inheritance of the heir. thisInheritance disqualificationThat.
Elimination of heirs
If the heir is abused, insulted, or grossly misconducted, the heir may lose the right of inheritance by appealing to the family court (892 article). thisElimination of heirsSay. Abolition of heirswillIt is also possible by a complaint by (893 article). The abandoned putative heir loses the right of inheritance.
The effect of inheritance
General effects of inheritance
By inheritance, the heir in principle inherits all rights and obligations belonging to the property of the heir (896 articleText). However, there are the following exceptions.
- Exclusive rights
- Inheritor's exclusive rights are not succeeded in the event of inheritance (896 articleProviso). There are the following.
- Proxy(111 article(Item 1 No. 1)
- For regular benefitsGift(Periodic gift,552 article）
- LoanStatus as a borrower in (599 article）
- DelegationStatus as a delegator or trustee in (653 article）
- Civil lawcombinationAs a member of (679 article）
- Fixed-term deposit contract (unless specifically approved by the bank)
- Right regarding rituals
- As a general rule, the ownership of genealogy, ritual equipment, and tombs is customarily inherited by the person who should preside over the ancestor's ritual, but when the heir is designated, that person shall succeed (897 article1).
If there are several heirs, the inheritance isTotalWill belong to (898 article). About the meaning of this "sharing"Shared theoryとCommon theoryThere is a conflict of249 articleThe theory of sharing is taken as the same as the following sharing (May 30, 5, Vol. 31, No. 9, page 6).
Right to claim inheritance recovery
A person who is disguised as an heir or who pretends to be an heir even though he or she was not (Hemisphere-False heir-Untrue heirIf he manages and disposes of the heritage, heirs can reclaim it. thisRight to claim inheritance recoverySay (884 article). The right to claim for inheritance restoration can be exercised comprehensively, and it is not necessary to specifically enumerate individual properties (Dalian judgment March 8, Taisho 3 (Min. 28, p. 25)). If the right to claim inheritance is not exercised for five years after the heir or his legal representative has learned that the right to inherit is infringed,Extinguished by prescriptionDo (884 article(First stage). It will also disappear 20 years after the start of inheritance (884 articleLatter part). It should be noted that the claim for inheritance restoration is highly respected in the Anglo-American law, in which only positive assets are inherited through liquidation, and there is a large difference from Japanese civil law.
It is said that the right to claim the inheritance restoration also applies to the problem of attribution of the right of inheritance between joint heirs. However, on the judicial precedent, if the joint heir claims the ownership of the extinguished prescription in the right to claim the inheritance restoration, even if the joint heir claims the ownership of another genuine co-inheritor, the fact that he/she infringes the interest of the other genuine joint heir It limits the range because it requires that there is a reasonable reason to believe that he/she has the right of inheritance (Maximum Dec. 53, 12, Minshu Vol. 20, No. 32, 9).
The share or percentage of the heir's inherited property, which is usually the ratio (900 article).
HeirswillMay determine the inheritance of the joint heirs or may entrust the determination of the inheritance to a third party (902 article(1 body). Inheritance determined by this methodDesignated inheritanceSay. However, heirs and third parties are required to designate inheritanceRemnantsNot be able to violate the regulations regarding (902 article1 proviso). If the heir determines only the inheritance of one or several of the joint heirs, or if a third party determines it, the inheritance of the other joint heir shall be determined by the provisions of the legal inheritance. Become(902 article2).
The theory is that even if the inheritance is designated and designated by the will as described above, the passive property is divided according to the statutory inheritance regardless of the designated inheritance. Regarding this, the decision of the Grand Council, December 5, 12, states that "... other divisible debts of financial debt should be borne by each person and the debt shall be borne in equal proportions ...". (Therefore, lower court cases where passive property is not subject to heritage division: Fukuoka High Resolution 4/4/12 25 826/259). On March 21, 03, the Supreme Court's third small court ruling (Heisei 24 (Received) 19) is an arguement, "However, the designation of the inheritance debt by the above will is the inheritance debt creditor. (Hereinafter, referred to as "inheritance creditor.") It is appropriate to understand that the effect does not apply to the inheritance creditor, because each inheritor is an inheritance creditor. If you are required to fulfill your inheritance obligations in accordance with your legal inheritance, you must comply and you cannot claim that you have inherited your inheritance obligations in accordance with your designated inheritance, but the inheritance creditor It should not be precluded from approving the effect of designation of inheritance obligations on inheritance obligations and requesting each heir to fulfill the obligations of inheritance in accordance with the designated inheritance obligations. It is believed that the opinion of the Court of Justice case is maintained. In this case, it is shown that if the attribution of debt is explicitly or implicitly determined by designated inheritance, it will not be effective against creditors, but it will be effective between heirs as specified. .
However, with regard to taxes and public dues to which the General Tax Law or Local Tax Law is applied/mutatis mutandis, if there is designation/designated consignment based on a will, in principle, the inheritance will be succeeded (Article 5, Paragraph 2 of the General Tax Law, Local Tax Law 9 It clearly states that Article 2 uses Article 902 of the Civil Code). Regarding taxes and public dues, when the value of the inherited property exceeds the inheritance tax amount, the obligation to pay in solidarity with other heirs is limited to the excess amount (Article 5, Paragraph 3 of the General Rules for National Tax, Local Tax Law). Article 9 paragraph 3).
If no inheritance is specified by willLegal inheritance(900 article)by.
As mentioned above, the family of the heir is: 1. the child of the heir, 2. the direct ancestry of the heir (the most recent parent among those of different relatives), 3. the siblings of the heir. Become heirs in that order (Article 889, paragraph 1), and the spouse of the heirs will always be the heirs (equal to any person who should be an heir to the heirs' blood line) (Article 890) ).
If there are several heirs within the range of heirs, the legal inheritance shall be as stipulated by the following items (900 article).
- When the child and spouse are heirs
- The inheritance of children and the inheritance of spouses are each one-half (Article 2 No. 1). When there are several children, their inheritance shall be equal (equal share) (Article 900 No. 1).
- When the spouse and direct lineage are heirs
- Two-thirds of the spouse's inheritance, one-third of the direct lineage inheritance (Article 3 No. 2). When there are several direct lineages, each inheritance is equal (equal) (Article 3 No. 1). In addition, in the case of direct lineage, the inheritance will only survive.
- When the spouse and siblings are heirs
Even if the heir has no spouse, if he/she has several children, direct ancestors, or siblings, their inheritance shall be equal, but the inheritance of siblings who share only one of their parents Minutes will be one-half of the inheritance of brothers and sisters who share the same parents (Article 2 No. 1).
Inheritance of a direct heir is the same as that of its direct lineage, and when there are several direct lineages who will be direct heirs, their direct lineage should have received Determine the inheritance according to the provisions of Article 900 (Article 901).
Incidentally,Illegitimate childInheritance of Article 900 No. 4Legitimate childWas stipulated as one-half of the inheritance of the Supreme Court on September 2, 1.Child outside the marriageJudged that the inheritance of (illegitimate child) is unconstitutionalAccordingly, Article 2013 No. 12 was deleted due to a partial revision of the Civil Code on December 11, 900. The supplementary provisions stipulate that the revised provisions shall apply to inheritance that started after September 4, 2013.
|Ranking||Heir||Inheritance (remaining portion)|
|Be applicable||legal||spouse||Other relatives||spouse||Other relatives|
|1||First rank||will get||Child||1/2 (1/4)||1/2 (1/4)|
|2||First rank||Direct descent||2/3 (1/3)||1/3 (1/6)|
|3||First rank||Brothers and sisters||3/4 (1/2)||1/4 (none)|
|5||First rank||No||Child||-||All (1/2)|
|6||First rank||Direct descent||-||All (1/3)|
|7||First rank||Brothers and sisters||-||All (none)|
Inheritance of special beneficiaries
For co-inheritors who received special benefits from the beneficiaries, a substantial amount of property will be reclaimed in order to achieve substantial fairness in inheritance (903 article).
The special benefits include:
- Gifts for marriage
- Gifts for adoption
- Donated as livelihood capital
- Tuition assistance
For those who made a special contribution to the maintenance or increase of the inheritance's property among the joint heirs, a system of acquiring a considerable amount of property in order to achieve substantial fairness in inheritance (904-2) Is provided. this is1980It was established by the revision of the civil code.
Transfer of inheritance, right to withdraw inheritance, abandonment of inheritance
If one of the joint heirs transfers the inheritance to a third party before the division of the heritage, the other co-inheritor may redeem its value and expenses and take over the inheritance (905 article1). However, this right of withdrawal must be exercised within one month (905 article2). In addition, the abandonment of the inheritance is an expression of intention to abandon the property before the heritage division, and has the effect of transferring the inheritance of the heir to another heir at the rate of the legal inheritance.
In the case of joint inheritance, divide the inheritance according to the inheritance and make it the sole property of each heir.
- Discussion or refereeing of division of heritage (907 article）
- Specify the method of division by will (908 article）
- The heir shall, in his will, determine the method of dividing the heritage, or establish it.third partyIt is possible to prohibit the division of the heritage by entrusting it to or setting a period not exceeding 5 years from the start of inheritance.
- Effect of inheritance division (909 article）
- The division of heritage goes into effect at the start of inheritance. However, it cannot harm the rights of third parties.
- Claims for the value of the person recognized after the start of inheritance (910 article）
PrecedentThen, the heir who acquired the right to the real estate through the inheritance division cannot compete with the third party who acquired the right after the division without registration.
Approval and abandonment of inheritance
Inheritance has the effect of inheriting the rights and obligations of the beneficiary, but either actually inheriting the inheritance and succeeding the rights or obligations, or waiving the inheritance and rejecting the succession of the rights and obligations. It is up to each heir's will. However, if the heir921 articleWhen the reason specified in is done,Simple approvalIs considered to have done.
That the heir accepts the succession of the rights and obligations of the heirInheritance approvalAccording to the range of acceptance of succession of rights and obligationsSimple approvalとLimited approvalIt is divided into That the heir accepts the succession of the rights and obligations of the heirAbandonment of inheritance (Abandonment of inheritance)That.
In addition, in order for the person under conservatorship to approve or abandon inheritance or divide the inheritance, he or she must obtain the consent of the person under care (13 article).
There is a limit to the period (consideration period) during which approval and waiver of inheritance should be made. Approval or abandonment of inheritance must be made within three months of knowing that inheritance has begun for oneself (915 article(1 body). However, during this period, the family court may extend at the request of interested parties and the public prosecutor (915 article1 proviso). "When I knew that there was a start of inheritance for myself" is the time when I knew the fact that should be the cause of the start of inheritance and that I became a heir ( Taisho Taisho 15th August, 8rd vol. 3 5). The heir must manage the inherited property with the same care as in its own property until it approves or renounces the inheritance (918 article1).
Incidentally,Great East Japan EarthquakeFor special cases withAct on Special Exceptions to Civil Code Related to the Period to Approve or Abandon Inheritance Following the Great East Japan Earthquakereference.
Mode of inheritance approval and abandonment
- Simple approval
- Simple approval is that the heir inherits the rights and obligations of the heir indefinitely by inheritance (920 articleLess than). In addition, heir921 articleWhen the reason prescribed in (the reason for simple approval by statutory) is done, it is considered as the simple approval.
- Limited approval
- The limited approval is to repay the beneficiary's debts and bequests to the extent of the property acquired by inheritance (922 articleLess than). In the case of co-inheritance, limited approval may only be done jointly by all co-inheritants (923 article).
- If you abandon your inheritance, you will be deemed not to have been the heir from the beginning for that inheritance (939 article). Inheritance is abandoned when there is a high probability that the inherited property is in excess of debt, or when it is desired to concentrate the inherited property on some heirs. In case of abandonment of inheritance, the applicant must make a declaration to the family court having jurisdiction over the place of last residence of the heir (940 article). Abandonment of inheritance does not become a cause of inheritance.
Approval of inheritance and withdrawal and cancellation of abandonment
If the heir approves or abandons the inheritance,915 articleCannot be withdrawn even within the period of (919 article1). However, if there is a cause of cancellation specified in the General Provisions of the Civil Code and the Family919 articleCancellation is possible within the fixed period specified in paragraph 3 (919 article(Sections 2 and 3). In this case, a person who intends to cancel the limited approval or the waiver of inheritance must make a declaration to the family court (919 article4).
A procedure that separates, manages, and liquidates the inherited property so that the inherited property is not confused. Property separation is at the request of inheritance creditors or beneficiariesFirst-class property separation(941 articleBelow) and at the request of the heir's creditorSecond-class property separation(950 articleThere is). Property separation941 articleAlthough specified below, it is rarely used in practice. This is for inherited property and heirsbankruptcyIt seems that bankruptcy filing is possible if there is a cause.
The absence of heirs
If the heir is not known,Inheritance corporationNext to (951 article),belowProcedure for determining absence of heirsWill be taken. Note that there is no heir for the testamentary, but if there is a comprehensive beneficiary for all of the inherited property, the inherited property will belong to the comprehensive beneficiary. It cannot be taken (see Supreme Court September 9, 9, Vol. 12, No. 51, page 8).
- Establishment of inheritance corporation (951 article) ・Appointment of the inheritance property manager and its public announcement (952 article)-First search period
- The announcement period is 2 months (957 articleIn the first paragraph of paragraph 1), if it is not clear that there is an heir within this announcement period, move to the next search stage.
- Public notice that a claim should be filed against the inheritance obligee and the beneficiary (957 article1)-Second search period
- The notification period is set to a period of 2 months or more (957 articleAfter the 1st paragraph), the liquidation procedure with creditors, etc. will be started. If it is not revealed that there is an heir within this notice period, move to the next search stage.
- Notice of search for heirs (958 articleFirst stage)-The third search period
- The announcement period is set to a period of 6 months or more (958 articleLatter part).
- When it becomes clear that there is an heir in the period from the establishment of the inheritance corporation to the establishment of the absence of the heir, the inheritance corporation is considered not to have been established (955 articleText). However, it does not affect the effectiveness of the acts of the inheritance manager within its authority (955 articleProviso)
- Expiration of the heir search period, confirmation of absence of heir, exclusion (958-2Due to this, heirs and inherited creditors and beneficiaries who are unknown to the inherited property manager cannot exercise their rights.)
- Special relativesDistributing inherited property to persons who have made a living with the heirs or who have worked for medical treatment and care of the heirs
- It is necessary that the request for sharing the inheritance property of a special relative should be made within 3 months after the absence of the heir is confirmed (958-3).
- Attribution to the treasury of residual assets (959 article）
Inheritance in foreign countries
The United States of America
The inheritance-only heritage, which was recognized in Britain, has been banned by law due to public opinion. A lawsuit is being carried out in Boston to make a trust that cannot be withdrawn until the second generation.
People's Republic of China
Inheritance in the People's Republic of China is stipulated in and has the following characteristics.
- The short-term prescription period for the claim for inheritance restoration is two years (Article 2 of the People's Republic of China Succession Act).
- Regarding the inheritance order of spouses, it is said that it is the first rank in the same line as children and parents (Article 10 paragraph 1 of the People's Republic of China Succession Act).
- Equal positions in the inheritance of wedlock and illegitimate child (People's Republic of China Succession Act Article 10 paragraph 3).
- If one of the spouses has exhausted their primary dependents on the spouse's parents, he/she will be the first heir (Article 12 of the Succession Law of the People's Republic of China).
The inheritance system in the People's Republic of China is closely related to the dependent system, and the inheritance of the heir may change due to the relationship with the dependent system..
Occupation related to inheritance
Specialized national qualifications include notaries, judicial scriveners, lawyers and tax accountants. Notaries are involved in notary deedsThe judicial scrivener is the inheritance registration/registration procedure resulting from inheritance, legal inheritance certification information application procedure, inheritance inheritance business, preparation of documents submitted to court and preparation of documents attached to these procedures, inheritance business such as investigation of family register, etc.However, lawyers can only be legally involved in dispute cases in addition to general inheritance affairs.The tax accountant will file the inheritance tax filing procedure.
- ^ It is also legally expressed as follows. "Natural person (inherited)Property lawAfter the death of the person, the upper position is legal or the final will of the person (will) To the heirs. Zentaro Kitagawa "Relatives and Inheritance" Yuhikaku, 1994
- ^ "Discrimination against inheritance of children born out of wedlock is unconstitutional En banc" Nihon Keizai Shimbun 2013May 9
- ^ en: Ferdinand Lundberg Original titleThe Rich and the Super-Rich Japanese title "Millionaire and the Millionaire" Vol. 1974 Hayakawa Shobo 269 p.XNUMX.
- ^ Mihoko Kato, “Chinese Family Law [Marriage, Adoption, Inheritance] Questions and Answers,” 2008 (460 pages)
- ^ Civil Code Article 967, Civil Code Article 969, Notary Law Article 1 Item 2
- ^ Judicial Scrivener Law Article 3, Judicial Scrivener Law Article 29, Judicial Scrivener Law Enforcement Regulations Article 31
- ^ Lawyer Article 3
- ^ Tax accountant law Article 2
- inheritance tax - Inheritance tax law
- Family Fortune War
- Child outside the marriage
- Legal Affairs Bureau
- The "inheritance method" that will change in about 40 years! What changes in inheritance and how will it change? - Government public relations online > Information useful for daily life (September 30, 9) Viewed January 26, 2019