ENGLISH

- The separation of the inherited property refers to separating the inherited property from the inherent property of the inheritor at the request of an obligee in inheritance, or a testamentary donee, or an obligee of an inheritor after the commencement of inheritance (Article 1045 (1) of the “Civil Act”).

- This is to prevent the inheritor’s obligee from being disadvantaged and if the inherited liability is greater than the inherited property and to prevent the obligees in inheritance and testamentary donees from being disadvantaged if the inherent property of the inheritor is greater than his/her liability, when the inherited property is mixed with the inheritor's inherent property.

- An obligee in inheritance, or a testamentary donee, or an obligee of an inheritor may apply to the family court having jurisdiction over the place where the inheritance commenced for the separation of the inherited property (Article 1045 (1) of the “Civil Act” and Article 44 (1) 6 of the “Family Litigation Act”).

- The inheritor becomes the other party who is entitled to apply for the separation of inherited property and if the inheritor is unknown, the administrator of the inherited property becomes the other party.

- The application must be filed within three months from the commencement of inheritance, that is, three months from the death of the inheritee (Article 1045 (1) of the “Civil Act”).

- An application may be filed with the court for the separation of property even after three months from the death of the inheritee, until such time as an inheritor has not accepted or renounced the pertinent inheritance (Article 1045 (2) of the “Civil Act”).This is because the acceptance or renunciation of inheritance must be made within three months from the date on which the inheritor becomes aware of the commencement of inheritance (Article 1019 (1) of the “Civil Act”), it may be longer than 3 months from the commencement of inheritance (date of death of the inheritee).

- The application for the separation of inherited property must be filed with the family court having jurisdiction over the place where the inheritance commenced (Articles 2 (1) 2 b. 35, 44 subparagraph 6, and 39 of the “Family Litigation Act”).

- If the application for the separation of property is legally filed by the applicant, the family court will order the separation of property.

- If the family court has ordered a separation of property due to the application of separation of the inherited property, the applicant must, within five days, give public notice to the general obligees in inheritance and to testamentary donees, that an order for a separation of property has been issued and that they are required to give a notice of their claims or testamentary gifts within a specified period of not less than two months (Article 1046 (1) of the “Civil Act”).

- The applicant for the separation of inherited property must give a separate notice to the obligees in inheritance and donees known to him/her for the declaration of each claim and testamentary gifts. Obligees in inheritance and beneficiaries known to the applicant cannot be excluded from the liquidation (Articles 1046 (2) and 89 of the “Civil Act”).

- If the family court has ordered a separation of property, it may order the adoption of such measures as may be necessary for the management of the inherited property (Article 1047 (1) of the “Civil Act”).

- Even after an inheritor has effected an absolute acceptance, and if a separation of property has been ordered, the inheritor must manage the inherited property with the same care as he exercises for his own property (Article 1048 (1) of the “Civil Act”).

- An inheritor must report how property management is handled at the request of the obligees in inheritance, obligees of the inheritor, or donees, and once the property management comes to an end, the inheritor must report the full account without delay (Articles 1048 (2) and 683 of the “Civil Act”).

- If an order has been made to separate the property, any rights and duties over property which he/she had towards the inheritee will not be extinguished (Article 1050 of the “Civil Act”).

- As to immovable inherited property, a separation of property cannot be set up against a third person, unless it has been registered (Article 1049 of the “Civil Act”).

- An inheritor may refuse performance to obligees in inheritance, and to testamentary donees within three months from the commencement of inheritance (Article 1045 of the “Civil Act”) and before the expiration of the period for public notice and peremptory notice (Article 1046 of the “Civil Act”) towards obligees in inheritance and testamentary donees (Article 1051 (1) of the “Civil Act”).

- The inheritor must, upon the expiration of the above period, effect performance, out of the inherited property, to obligees in inheritance and testamentary donees who applied for the separation of property or who have notified within such period, and to obligees in inheritance and testamentary donees known to the inheritor, in proportion to their amount of obligations or testamentary gifts.However, the rights of the obligees who have priority rights may not be entrenched (Article 1051 (2) of the “Civil Act”).

- An inheritor must perform in proportion to the amount of each claim even for those that are not yet due (Articles 1051 (3) and 1035 (1) of the “Civil Act”).

- An inheritor may not effect performance to testamentary donees until he has completed performance to all obligees inherited (Articles 1051 (3) and 1036 of the “Civil Act”).

- If it is necessary to sell some or all of the inherited properties in order to perform obligations for the obligees in inheritance or testamentary donees (Articles 1034 through 1036 of the “Civil Act”), an auction must be held pursuant to the Civil Execution Act (Articles 1051 (3) and 1037 of the “Civil Act”).

- If an inheritor performs his/her obligations for any obligees in inheritance or testamentary donees and becomes unable to perform his/her obligations for other obligees in inheritance or testamentary donees by neglecting the public notice or preliminary notice towards obligees (Article 1032 of the “Civil Act”) or in violation of the regulation under the “Civil Act” (Articles 1033 through 1036 of the “Civil Act”), the inheritor must compensate for the damage sustained.

- The obligees in inheritance and testamentary donees due to unfair performance (Articles 1051 (3) and 1038 (1) of the “Civil Act”) may be entitled to receive performance out of the inherent property of the inheritor limited to the circumstances where they are unable to receive full performance from the inherited property (Article 1052 (1) of the “Civil Act”).

- In the above case, the obligees of the inheritor will reserve the right to receive performance in preference to others out of the inherent property of the inheritor (Article 1052 (2) of the “Civil Act”).