Partition of the inherited property
The inherited property will be divided into the property of each inheritor.
- Each of the co-inheritors succeeds to the rights and duties of the inheritee in proportion to his/her share of the inheritance and the inherited property will be jointly owned by co-inheritors (Articles 1006 and 1007 of the “Civil Act”).
· In this case, the inherited property needs to be divided into the property of each inheritor, and this is referred to as the partition of the inherited property.
- The partition of inherited property becomes prohibited when such partition is barred under the testamentary will or agreement.
· If the partition of the inherited property is barred under the testamentary will of the inheritee, the partition will be prohibited for a certain period of time.
√ An inheritee may prohibit the partition of all or part of the inherited property or by all of part of the inheritors by testamentary will (Article 1012 of the “Civil Act”).
√ However, the period prohibiting the partition will be reduced to five years if the period set exceeds five years.
· If the partition of the inherited property is barred by an agreement by co-inheritors, the partition will be prohibited for a certain period of time.
√ The co-inheritors may agree not to divide the inherited property for up to five years (Article 268 (1) of the “Civil Act”).
√ Such an agreement on the prohibition of partition may be renewed for up to five years (Article 268 (2) of the “Civil Act”).
- Each and every co-inheritor must participate in the partition of the inherited property.
· The parties who are entitled to claim the partition of the property include inheritors, testamentary donees by general title, inheritors of co-inheritors, and transferees of the share of inheritance.
√ An obligee of the inheritor may exercise his/her right to claim the partition by subrogation as an obligee (Article 404 of the “Civil Act”).
Property subject to partition
In principle, the co-inheritors are entitled to divide the entire inherited property.
- The inherited property is transferred as a whole through inheritance and the entire inherited property becomes subject to partition, but divisible inherited property is not subject to partition.
· The valuation of inherited property to be divided will be based on the time of partition of the time of the judgment for partition.
As an exception, pecuniary claims and obligations are not subject to partition of inherited property.
- Divisible claims and obligations such as pecuniary claims and obligations constitute the inherited property, but since they are divided and succeeded to the co-inheritors in accordance with the statutory share of inheritance upon the commencement of inheritance, they are not subject to partition.
※ Divisible claims refer to those divisible and payable to multiple obligees due to their nature.
※ Divisible obligations refer to those entitled to claim the performance of a certain part against multiple obligators due to their nature.
How to divide the inherited property
Partition by specification
The partition by specification of inherited property refers to the partition carried out by the method of partition of the inherited property according to the inheritee’s testamentary will or by entrusting a third party other than the inheritors to set the method of partition (Article 1012 of the “Civil Act”).
Partition by agreement
- The partition by agreement of inherited property refers to the partition carried out by agreement among co-inheritors if there is no testamentary will of the inheritee on the prohibition of partition (Article 1013 (1) of the “Civil Act”).
- The partition by agreement requires the agreement of all parties concerned, but not the special method of partition.The partition may be carried out by partition of payment, partition of in-kind property, and partition of prices, or any other methods that compromise all such methods.
·The partition by agreement may be carried out orally between inheritors as a kind of contract, but it is advised to create an agreement on the partition to avoid any possible disputes.
- If the inheritor who has participated in the partition by agreement is an unqualified person or has agreed to a partition without including some of the inheritors, the agreement will be held null and void.
one of the inheritors is a minor, a special agent must be appointed to protect the interests of the minor.
- If there was a mistake, fraud, or undue influence in the expression of one’s intent for the partition by agreement, the party who has made the expression of his/her intent will be entitled to revoke the agreement (Articles 109 and 110 of the “Civil Act”).
Partition by adjudication
- The partition by adjudication of inherited property refers to the method of partition which allows co-inheritors to file a claim at the family court if the co-inheritors fail to reach an agreement on the partition (Articles 1013 (2) and 269 of the “Civil Act” and Article 2 (1) 2 b. 10 of the “Family Litigation Act”).
※ Judicial conciliation is mandatory for the partition by adjudication of inherited property (Article 50 of the “Family Litigation Act”) and the proceedings for the partition by adjudication will be initiated only if the judicial conciliation is not established (Article 36 of the “Judicial Conciliation of Civil Dispute Act”).
- The partition by adjudication of inherited property must filed by one of or several inheritors against the rest of inheritors (Article 110 of the “Family Litigation Rules”).
·Since the claim for the partition of inherited property constitutes a claim for the partition of articles jointly owned due to its nature, there is no restriction on the period permissible for the claim.
- Once the claim for the partition by adjudication of inherited property is filed, the family court will deliver its decision on the partition of property.
·If the article in kind cannot be partitioned or there arise concerns over a significant decrease in its value due to partition, the court may order the sale of the object by auction (Articles 1013 (2) and 269 (2) of the “Civil Act”).
Effects of the partition
Retroactive effects of the partition
- The partition of inherited property will be retroactively effective when the inheritance commences.However, it cannot undermine the rights of a third party (Article 1015 of the “Civil Act”).
Liability for warranty of co-inheritors
- Co-inheritors hold the same liability for warranty as the seller in relation to the share of inheritance for the property obtained by partition (Article 1016 of the “Civil Act”).
Liability for warranty of the obligor of inheritance with his/her funding ability
- Each co-inheritor will, in proportion to his or her share of the inheritance, warrant the solvency of the obligor as of the time of division with regard to claims acquired by other co-inheritors through division (Article 1017 (1) of the “Civil Act”).
- With regard to an obligation which is not yet due or an obligation subject to a condition precedent, each co-inheritor warrants the solvency of the obligor at the time of performance (Article 1017 (2) of the “Civil Act”).
Apportionment of the warranty liability of insolvent co-inheritors
- If there is an insolvent person among co-inheritors liable for warranty, the portion of liability which such person is to bear will be apportioned to those having the right to claim for reimbursement and other solvent co-inheritors in proportion to their share of inheritance.However, if the person who has the right to claim reimbursement fails to receive any reimbursement due to his/her own negligence, he/she will not be allowed make a demand upon the other co-inheritors to bear their portions (Article 1018 of the “Civil Act”).
Right to apply by person, etc. affiliated after partition
- If a person who has become a co-inheritor by affiliation or by a final judgment after the commencement of the inheritance applies for the partition of inherited property, he/she may, if other co-inheritors have already effected the partition or other disposition, claim payment of the amount equivalent to his/her portion (Article 1014 of the “Civil Act”).
- Since the claim for the payment of the amount equivalent to the share of inheritance of the person, etc. affiliated falls under the category of the claim for the recovery of inheritance, a period of exclusion of three years will apply.Therefore, it must be exercised within three years from the day on which the person etc. affiliated becomes aware of the fact that he/she is a true heir and he/she has been excluded from inheritance (day on which he/she became a co-inheritor as a result of the court decision recognizing a person who is not related by marriage) (See Article 999 (2) of the “Civil Act,”
Supreme Court Decision 2006Meu2757, 2754 Decided July 26, 2007).