Application for the commission of an administrator of the inherited property and the public notice thereof
Application for the commission of an administrator of the inherited property and the public notice thereof
- If it is unknown whether an inheritor exists, any relative of the inheritee or any other interested person or the public prosecutor may appoint an administrator of the inherited property at the family court (Article 1053 (1) of the “Civil Act”).
※ The relatives of the inheritee refer to his/her blood relatives within the eighth degree of relationship, his/her affinity relatives within the fourth degree of relationship, and his/her spouse (Article 777 of the “Civil Act”).
※ Other interested persons refer to those who have legal interests in the management and liquidation of the inherited property or the obligees in inheritance and testamentary donees.
· In response, the family court must appoint an administrator of the inherited property and publish a public notice on the issue without delay (Article 1053 (1) of the “Civil Act” and Article 2 (1) 2 a. 37 of the “Family Litigation Act”).
· The public notice on the appointment of an administrator of the inherited property must contain the following (Article 79 of the “Family Litigation Rules”):
√ Name and address of the claimant
√ Name, occupation and last address of the inheritee
√ Places and dates of birth and death of the inheritee
√ Name and address of the administrator of the inherited property
· Expenses necessary for the public notice will be payable from the inherited property (Article 81 of the “Family Litigation Rules”).
Management of the inherited property by an appointed property administrator
- An administrator appointed by a family court must prepare an inventory of the property which he is to manage (Articles 1053 (2) and 24 (1) of the “Civil Act”).
· The family court may order the administrator appointed by the family court to take such steps necessary for preservation of an absentee's property (Articles 1053 (2) and 24 (2) of the “Civil Act”).
· The expenses spent by the property administrator for managing the inherited property will be payable from the inherited property (Articles 1053 (2) and 24 (4) of the “Civil Act”).
- Any acts of preservation and acts of making use of, or improving the thing or the right which is the object of agency, but only in so far as the nature of such thing or right is not altered (Article 118 of the “Civil Act”) require the permission of the family court.The permission of the family court must also be obtained for any acts beyond the powers of the property administrator when it is unknown whether the inheritor is alive or dead (Articles 1053 (2) and 25 of the “Civil Act”).
- If a demand is made by any of the obligees in inheritance or testamentary donees, the property administrator must at any time present the inventory of the inherited property and report their status (Article 1054 of the “Civil Act”).
Security provided by the appointed administrator of the inherited property
- The family court may require the administrator of the inherited property appointed by the court to furnish reasonable security for the management and return of the property (Articles 1053 (2) and 26 (1) of the “Civil Act”).
Remuneration for the appointed administrator of the inherited property
- The family court may award the administrator of the inherited property appointed by the court reasonable remuneration out of the inherited property (Articles 1053 (2) and 26 (2) of the “Civil Act”).
If an inheritor appears
If the existence of the inheritor becomes apparent
- The duties of the acceptance will be terminated when the existence of the inheritor becomes apparent and the inheritor approves the inheritance (Article 1055 (1) of the “Civil Act”).
- If the inheritor approves the inheritance, the administrator must calculate the management of the inherited property without delay (Article 1055 (2) of the “Civil Act”).
If an inheritor does not appear
Public notice of liquidation
- If the existence of the inheritor is unknown within three months from the public notice of the appointment of an administrator of the inherited property (Article 1053 (1) of the “Civil Act”), the administrator must publish a public notice of the claim or testamentary gift for the general obligees in inheritance and testamentary donees within a certain period without delay.The period must be at least two months (Article 1056 (1) of the “Civil Act”).
· A statement must be included in the public notice for the claim declaration that the claims of obligees who do not report their claims within the period will be excluded from liquidation (Articles 1056 (2) and 88 (2) of the “Civil Act”).
- The public notice for claim declaration must be given in the same manner as that of particulars to be registered to the court. (Articles 1056 (2) and 88 (3) of the “Civil Act”).
Preliminary notice of the claim declaration for known obligees
- An administrator of the inherited property must give a separate notice to each obligee known to them to report his claim. Obligees known to the qualified acceptors cannot be excluded from the liquidation (Articles 1056 (2) and 89 of the “Civil Act”).
Order of the performance of obligations and method of liquidation
- The administrator of the inherited property may refuse the performance of obligations for inherited claims before the expiration of the period of public notice towards obligees (Articles 1056 (2) and 1033 of the “Civil Act”).
- An administrator of the inherited property must, upon the expiration of the period of public notice, effect performance to obligees who have notified him/her of their claims within the said period, and to all other obligees known to the administrator, in proportion to the amounts of their respective claims of the inherited property.However, the rights of the obligees who have priority rights may not be entrenched (Articles 1056 (2) and 1034 (1) of the “Civil Act”).
· If an inheritor has effected a qualified acceptance (Article 1019 (3) of the “Civil Act”), the inheritor must make the repayment of the above amount by adding the value of the remainder of the inherited property as well as the value of the property already disposed of. However, the amount repaid to the obligees in inheritance or testamentary donees before the qualified acceptance will be excluded from the value of the property already disposed of (Articles 1056 (2) and 1034 (2) of the “Civil Act”).
- An administrator of the inherited property must perform in proportion to the amount of each claim even for those that are not yet due (Articles 1056 (2) and 1035 (1) of the “Civil Act”).
· Conditional obligations or obligations with uncertain duration must be performed according to the valuation of an appraiser appointed by the court (Articles 1056 (2) and 1035 (2) of the “Civil Act”).
√ In this case, any expenses incurred by the appointment of the appraiser and the appraiser's valuation will be payable from the inheritance property (Article 82 of the “Family Litigation Rules”).
- An administrator of the inherited property may not effect performance to testamentary donees until he has completed performance to all obligees inherited (Articles 1056 (2) 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 liquidation of inherited property, an auction must be held pursuant to the “Civil Execution Act” (Articles 1056 (2) and 1037 of the “Civil Act”).
- If an administrator of the inherited property 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 (Article 1056 (2) and 1038 (1) of the "Civil Act").
· If the performance of obligations for the liquidation of inherited property is effected unfairly (former part of Article 1038 (1) of the “Civil Act”), the obligees in inheritance or testamentary donees to whom no performance has been effected may exercise the right to demand reimbursement from such obligees in the inheritance or testamentary donees, as having improperly received performance with knowledge of the circumstances (Articles 1056 (2) and Article 1038 (2) of the “Civil Act”).
· The prescription to exercise the right to reimbursement due to unfair performance will expire if the party demanding reimbursement or his/her legal representative fails to exercise the right within three years from the date on which he/she becomes aware of the damage, and will expire after ten years from the date on which the unfair performance was effected (Articles 1056 (2),1038 (3) and 766 of the “Civil Act”).
- Obligees in inheritance and testamentary donees who have failed to give notice of their claims within the period of public notice or preliminary notice for obligees (Article 1032 (1) of the “Civil Act”) and who were unknown to the administrator of the inherited property may receive performance only where there is any surplus of the inherited property.However, this will not be the case where obligees to the inherited property and testamentary donees have special security interest with respect to the inherited property (Articles 1056 (2) and 1039 of the “Civil Act”).
Final public notice to search inheritors
Public notice to search inheritor
- If, after the expiration of the period of declaration for liquidation (Article 1056 (1) of the “Civil Act”) it is still unknown whether an inheritor exists, the court must, upon the application of the administrator, give public notice for inheritors to raise their rights within a specified period. The period must be at least one year (Article 1057 of the “Civil Act”).
· Expenses necessary for the public notice to search inheritors will be payable from the inherited property (Article 81 of the “Family Litigation Rules”).
If a person having special connection exists
Apportionment adjudication for persons having special connection
- If no person raises his/her right to inheritance within the period of the public notice to search inheritors (Article 1057 of the “Civil Act”), a person having special connection may apply for the apportionment of inherited property (Article 1057-2 (1) of the “Civil Act”).
- If the request for adjudication of the person having special connection is deemed reasonable, the family court will determine whether to apportion all or part of the inherited property through adjudication (Article 1057-2 (1) of the “Civil Act”).
※ A person who is eligible to be a person having special connection
· The person having special connection refers to a person who had a special connection at the time of the death of an in and includes the following persons:
√ A person who lived together with the inheritee
√ A person who has provided the inheritee with medical and nursing care
√ A person who has been commissioned by the inheritee to perform the ancestral rites of the inheritee and his/her ancestors
√ A person who has managed the inheritance
√ A person who has been in a de facto marriage relationship with the inheritee
Period of application
- The request for the adjudication of the apportionment of inherited property (Article 1057-2 (1) of the “Civil Act”) must be filed within two months from the expiration of the period of the public notice to search inheritors (Article 1057-2 (2) of the “Civil Act”)
Objection against the apportionment adjudication
- Those who have lived together with the inheritee, have provided the inheritee with medical and nursing care, or have had a special relationship with the inheritee (Article 1057-2 (1) of the “Civil Act”) may immediately file an appeal against the decision on the apportionment of inherited property (Article 1057-2 of the “Civil Act”) (Article 83 of the “Family Litigation Rules”).
※ The immediate appeal refers to a simple appeal to be filed within one week from the notification of adjudication as required for rapid resolution of court decisions or orders (Article 444 of the “Civil Procedure Act”).
If no person having special connection exists
Escheatment of inherited property
- Any inherited property not apportioned to the persons having special connection (Article 1057-2 of the “Civil Act”) will be escheated to the State (Article 1058 (1) of the “Civil Act”).
- If the property is to be escheated to the State, the administrator must calculate the management of the inherited property without delay (Articles 1058 (2) and 1055 (2) of the “Civil Act”).
Prohibition on demanding performance with respect to property escheated
- Even if there exist any obligees in inheritance or testamentary donees who have not received any performance out of the inherited property due to the inherited property escheated to the State, no demand of such performance may be filed against the State (Article 1059 of the “Civil Act”).