What is the legally reserved portion? Eligible heirs, shares, the one-year period and a claim for the legally reserved portion

In short: the legally reserved portion is the minimum benefit guaranteed by law for certain heirs other than siblings. For inheritances commencing on or after 1 July 2019, if a will, gift or other act infringes the legally reserved portion, the system allows a claim for payment of money equivalent to the infringed amount. It is not the case that "a will infringing the legally reserved portion is invalid" or that "real estate equivalent to the legally reserved portion automatically returns". Yotsuba Administrative Scrivener Office collects family registers, investigates heirs, investigates the estate, organises estate materials, organises the inheritance relationship and prepares an estate division agreement based on agreed content. Judgement of whether a legally reserved portion exists, calculation of the share and infringed amount, judgement of whether to claim, a claim for the legally reserved portion, negotiation and dispute handling are the domain of an attorney.

Basics of the legally reserved portion

The legally reserved portion is the minimum benefit guaranteed by law for certain heirs other than siblings.

However, it is not the case that "a will infringing the legally reserved portion is invalid" or that "real estate equivalent to the legally reserved portion automatically returns". For inheritances commencing on or after 1 July 2019, the current system is a system to claim payment of money equivalent to the infringed amount.

Persons entitled to the legally reserved portion

Under Civil Code, Article 1042, the following heirs have a legally reserved portion.

• Spouse
• Children and other lineal descendants
• Lineal ascendants who are heirs

On the other hand, siblings and nieces or nephews who inherit by representation from siblings have no legally reserved portion. Who is actually an heir depends on the order of succession, inheritance by representation and other matters. For details, see Statutory heirs and statutory shares.

Shares of the legally reserved portion

Under Civil Code, Article 1042, the shares are as follows.

• Where only lineal ascendants are heirs → the total legally reserved portion is one-third
• In other cases → the total legally reserved portion is one-half

If there are several heirs, each heir's legally reserved portion is basically "the above share × that person's statutory share". For example, if the heirs are a spouse and one child, the total legally reserved portion is one-half, the spouse's is one-fourth and the child's is one-fourth.

However, the legally reserved share is not the share that can be claimed as is. The basic structure is:

Base assets for calculating the legally reserved portion × each person's legally reserved share → the amount of the legally reserved portion

After that, under Civil Code, Article 1046, paragraph 2, the amount of the infringed legally reserved portion is calculated by considering the testamentary gift received by the entitled person, certain gifts, assets to be acquired by inheritance and inherited debts assumed by the entitled person. It cannot be said that "a spouse's legally reserved share of one-fourth means one-fourth of the total estate can always be claimed".

Base for calculating the legally reserved portion

Under Civil Code, Article 1043, the basic structure is:

Value of assets at the commencement of inheritance + value of gift assets to be included - all debts

It cannot be said that "the legally reserved portion can be calculated by looking only at the estate at the commencement of inheritance".

Treatment of lifetime gifts

Under Civil Code, Article 1044, the treatment of lifetime gifts is roughly as follows.

• Ordinary gifts → in principle, gifts within one year before the commencement of inheritance
• Where both parties gifted knowing that they would harm the person entitled to the legally reserved portion → gifts more than one year earlier may also be included
• Gifts to an heir as special benefits → a ten-year rule applies to gifts received as capital for marriage, adoption or livelihood

It cannot be said that "all gifts within the past ten years are included" or "all lifetime gifts are included". Consult an attorney for individual calculation.

Is a will infringing the legally reserved portion invalid?

The mere fact of infringement of the legally reserved portion does not automatically make a will, devise or gift invalid. The current system is a system to claim payment of money equivalent to the infringed amount from the devisee or donee.

For wills, see Holograph wills vs notarised wills; for procedures after a will is found, see What to do when a will is found.

Note on the 2019 amendment

For inheritances commencing on or after 1 July 2019, a claim for the legally reserved portion is relevant. For inheritances commencing on or before 30 June 2019, the former system of reduction of the legally reserved portion is relevant. This article focuses on inheritances commencing on or after 1 July 2019.

Period for a claim for the legally reserved portion

A claim for the legally reserved portion has the following two periods (Civil Code, Article 1048).

• One year: one year from when the entitled person became aware of the commencement of inheritance and of the gift or devise infringing the legally reserved portion
• Ten years: ten years from the commencement of inheritance

It cannot be said that "the period is always one year from the date the will is found" or "always one year from the date of death".

Declaration of intention to exercise the right

What is required within one year is a declaration of intention to the other party to exercise the right to the legally reserved portion. Merely filing a petition for conciliation with the Family Court is not a declaration to the other party.

The court explains that a declaration by content-certified mail or another method is used. However, it is not the case that "the form of content-certified mail itself is legally required".

The entitled person can personally declare the intention to the other party and personally file a petition for conciliation. It is not the case that "a claim for the legally reserved portion can only be made by an attorney". Who, when and what content to claim are individual legal judgements; consult an attorney.

When there are several devisees or donees

Where there are several devisees or donees, Civil Code, Article 1047 provides rules on who bears the burden, in what order and to what extent.

For example, if there are a devisee and a donee, the devisee bears the burden first. If there are several gifts at different times, the donee of the later gift bears the burden in order.

Where there are several persons, it cannot be asserted that "a claim may be made against any one of them". Consult an attorney to identify the person to claim against.

Conciliation for a claim for the legally reserved portion

If agreement cannot be reached, conciliation for a claim for the legally reserved portion may be used at the Family Court. The application is made to the Family Court with jurisdiction over the other party's address or a Family Court agreed by the parties. The court's official guidance states a filing fee of a revenue stamp of 1,200 yen plus postage.

The person may file personally. Conciliation for a claim for the legally reserved portion is different from estate division conciliation. If conciliation fails, it does not automatically move to adjudication and have a judge decide the infringed amount as in estate division. A separate lawsuit may be necessary for final resolution. Legal judgement and litigation agency are an attorney.

Difference from estate division

Estate division is a procedure to decide how the inherited assets are acquired among co-heirs. A claim for the legally reserved portion is a system to claim money equivalent to the infringed amount when the legally reserved portion is infringed by a devise or gift. The two are not the same procedure.

It cannot be asserted that "if estate division is agreed, a claim for the legally reserved portion is unnecessary". For the basics of estate division, see Can you prepare an estate division agreement yourself?.

Relationship with renunciation of inheritance

A person who renounces an inheritance is deemed never to have been an heir for that inheritance. Therefore, that person has no legally reserved portion for that inheritance.

For the basics of renunciation, see What to know before considering renunciation or qualified acceptance.

Relationship with renunciation of the legally reserved portion

Separately from renunciation of inheritance, there is a system to renounce only the legally reserved portion. Under Civil Code, Article 1049, renunciation of the legally reserved portion before the commencement of inheritance requires the permission of the Family Court.

Renouncing only the legally reserved portion is different from renouncing the status of heir itself. Renunciation of the legally reserved portion by one co-heir does not affect the legally reserved portion of other co-heirs. Consult an attorney for individual judgement.

Relationship with disqualification and exclusion

A person who lost the right of inheritance by disqualification or exclusion has no legally reserved portion. Who becomes a new heir by inheritance by representation is a separate matter. For details, see Statutory heirs and statutory shares. Individual judgement is an attorney.

Relationship with tax

After the amount of the infringed legally reserved portion is determined, an amended inheritance tax return or a request for correction may become an issue for both the person receiving money and the person paying.

If land or another asset is transferred instead of money, capital gains tax may arise on the paying side. Consult a tax accountant for individual tax treatment. For the basics of inheritance tax, see Is an inheritance tax return required?.

What an administrative scrivener can and cannot do

Yotsuba Administrative Scrivener Office, within the lawful scope, collects family registers, investigates heirs, investigates the estate, organises estate materials, organises the inheritance relationship and prepares an estate division agreement based on agreed content.

On the other hand, the office does not handle the following.

• Individual judgement of whether a legally reserved portion exists
• Individual calculation of the infringed amount
• Judgement of whether to claim
• Acceptance of a claim notice for the legally reserved portion to the other party
• Negotiation
• Agency
• Dispute handling

If asking a specialist for individual legal judgement, claim, negotiation, agency or dispute handling, use an attorney.

Roles of specialists

• Individual legal judgement, claim, negotiation and disputes over the legally reserved portion → an attorney
• Preparation of documents to be filed with the Family Court → a judicial scrivener or attorney
• Inheritance registration → the person concerned / a judicial scrivener or attorney
• Tax → the person concerned / a tax accountant
• Organisation of family registers, heirs and estate materials, and documentation of agreed content → the person concerned / an administrative scrivener or another specialist
• Real estate appraisal and brokerage → Yotsuba Real Estate Co., Ltd.

Yotsuba Administrative Scrivener Office and Yotsuba Real Estate Co., Ltd. handle their work under separate businesses and separate contracts. Our office receives no referral fee.

How to proceed with a consultation on the legally reserved portion in Bunkyo

Yotsuba Administrative Scrivener Office (Kohinata, Bunkyo, about five minutes' walk from Myogadani Station) guides you in stages through family register collection, heir investigation, estate investigation, organisation of estate materials and preparation of an estate division agreement based on agreed content, as materials for judging the legally reserved portion.

For the flow of engagement, see Engagement Flow; for fees, see Fee Schedule; and for the whole picture, see Inheritance, Wills and Trusts.

FAQ

Q. Do siblings also have a legally reserved portion?
A. Siblings and nieces or nephews who inherit by representation from siblings have no legally reserved portion.

Q. Is a will infringing the legally reserved portion invalid?
A. The mere infringement does not automatically make the will invalid. The current system is a claim for payment of money equivalent to the infringed amount.

Q. Is the legally reserved portion half of the estate?
A. Where only lineal ascendants are heirs, the total is one-third; in other cases, one-half. If there are several heirs, multiply by each person's statutory share.

Q. Are all lifetime gifts included in the calculation?
A. Not all lifetime gifts are included. Gifts within one year before the commencement of inheritance and certain gifts as special benefits may be included. Consult an attorney for individual calculation.

Q. By when must a claim for the legally reserved portion be made?
A. There is a one-year period from awareness of the commencement of inheritance and of the gift or devise infringing the legally reserved portion, and a ten-year period from the commencement of inheritance.

Q. If I file a petition for conciliation with the Family Court, is the one-year period safe?
A. Merely filing a petition for conciliation is not a declaration of intention to the other party. A declaration by content-certified mail or another method is required, but that form itself is not legally required. Consult an attorney for individual judgement.

Q. Does a person who renounced the inheritance also have a legally reserved portion?
A. A person who renounced is deemed never to have been an heir, so that person has no legally reserved portion for that inheritance.

Q. Can only the legally reserved portion be renounced during life?
A. Renunciation of the legally reserved portion before the commencement of inheritance requires the permission of the Family Court. It is different from renunciation of inheritance.

Sources (Primary Information)

• e-Gov, Civil Code, Articles 1042, 1043, 1044, 1046, 1047, 1048 and 1049
• Courts, "Conciliation for a claim for the legally reserved portion"
• Courts, "General conciliation procedure"
• Ministry of Justice, "Amendment of the succession law"
• National Tax Agency, "Materials on inheritance tax concerning a claim for the legally reserved portion"
• National Tax Agency, "Materials on capital gains by performance in lieu"
• Administrative Scrivener Act, current provisions

This article is general information and does not guarantee the existence, share, calculation, infringed amount, method, period or tax treatment of any individual legally reserved portion. Individual legal judgement, claim, negotiation and dispute handling over the legally reserved portion are handled by an attorney; preparation of documents to be filed with the Family Court by a judicial scrivener or attorney; inheritance registration by the person concerned or a judicial scrivener or attorney; tax by the person concerned or a tax accountant; and real estate appraisal and brokerage by Yotsuba Real Estate Co., Ltd., each as an independent business under a separate contract. Our office receives no referral fee. Individual judgements are made by a qualified professional after a meeting. Written by Joji Uramatsu, administrative scrivener and licensed real estate broker.