Inheritance when an heir lives overseas or is a foreign national: required documents, signature certification and what an administrative scrivener can handle

In short: "living overseas" and "foreign nationality" are not the same problem. Overseas residence mainly raises issues of a seal certificate, signature certification, address proof, document delivery and identity confirmation; foreign nationality additionally raises proof of family relationships and, if the deceased was a foreign national, the applicable law (national law and renvoi). Determining the applicable law, interpreting foreign law and identifying the heirs and shares is the domain of an attorney; tax is a tax accountant; and inheritance registration is a judicial scrivener. An administrative scrivener collects family registers, organises foreign family relationship documents and translations, and documents the content once agreed.

What differs between living overseas and being a foreign national?

"Living overseas" and "foreign nationality" are not the same problem.

For example, the matters to confirm differ in the following cases:

• a Japanese heir lives in Taiwan, mainland China, the United States, etc.;
• a foreign national heir lives in Japan;
• a foreign national heir lives overseas;
• the deceased themselves was a foreign national.

Living overseas mainly raises issues of a seal certificate, signature certification, address proof, document delivery and identity confirmation.

Foreign nationality additionally raises such issues as how to prove family relationships, and, if the deceased was a foreign national, which country's inheritance law applies.

It cannot be said without qualification that "because there is a foreign national heir, that country's inheritance law applies". For the basics of heir identification and family register collection, see Where to start with an inheritance.

If the deceased is a foreign national, which country's inheritance law applies? "National law" and "renvoi"

Article 36 of Japan's Act on General Rules for Application of Laws provides that "inheritance is governed by the deceased's national law".

The important point is that the first thing to look at is the deceased's nationality, not the heir's nationality. For example, if a Japanese father dies and his child is Taiwanese or Chinese, the child's foreign nationality does not by itself mean that Taiwanese or Chinese law applies.

If the deceased is a foreign national, their national law is examined first. However, foreign law is not necessarily applied as is.

Under Article 41, if the private international law on the side of the deceased's national law designates Japanese law, Japanese law may be applied. This is called "renvoi".

The general flow is:

Japan (Article 36) → look at the deceased's national law → that foreign country's private international law designates Japanese law → return to Japanese law (renvoi under Article 41)

In other words, neither "foreign nationality means foreign law" nor "assets in Japan mean Japanese law" is always correct.

If the deceased has multiple nationalities or is stateless, there are separate rules for how to determine the "national law" itself (Article 38). For multiple nationalities, the law of the country of habitual residence or of the most closely connected country is used; for a stateless person, the law of the place of habitual residence.

Determining the applicable law, the range of heirs and the shares is a legal judgement of international private law, and an administrative scrivener does not judge it individually. It is reserved to an attorney.

How does "renvoi" differ between mainland China and Taiwan?

This is a key point of this article. Mainland China and Taiwan differ in how the applicable law of inheritance is determined.

Mainland China

Article 31 of China's "涉外民事关系法律适用法" (Law on the Application of Law to Foreign-related Civil Relations) provides, for statutory inheritance, that movable property is governed by the law of the deceased's habitual residence at death, and immovable property by the law of the place where the immovable is located.

Therefore, for example, for movable property of a Chinese national who had habitual residence in Japan at death, or for immovable property in Japan owned by a Chinese national, Japanese law may be applied by renvoi under Japan's Article 41 after China's private international law designates Japanese law (following Japan's Article 36 first referring to Chinese law).

However, it cannot be said that "a Chinese national always leads back to Japanese law". For example, if a Chinese national had habitual residence in China at death and the movable property in China is at issue, Chinese law may be applied as it is.

Article 9 of China's "涉外民事关系法律适用法" has a rule excluding renvoi: when China applies foreign law, it does not include that country's rules on the application of law. This exclusion of renvoi on the Chinese side is different from the renvoi on the Japanese side under Japan's Article 41. This article explains the structure in general terms, and the individual application of Chinese law is the domain of an attorney.

Taiwan

Article 58 of Taiwan's "涉外民事法律適用法" provides that inheritance is, in principle, governed by "the deceased's national law at death".

Therefore, for a Taiwanese national, Taiwan's own law designates Taiwan law as a basic rule. In a typical case where a Taiwanese father lived in Tokyo for many years and left a Tokyo apartment and Japanese bank deposits, Japan's Article 36 refers to Taiwan law as the deceased's national law, and Taiwan's Article 58 also designates the deceased's national law at death = Taiwan law. Thus, the mere facts of "having lived in Japan for a long time" or "all the assets being in Japan" do not by themselves lead back to Japanese law.

Taiwan's renvoi provision is Article 6 of the "涉外民事法律適用法". Article 6 is a general renvoi provision for the case where, when Taiwan applies a foreign national law, that foreign law designates another law. The second part of Article 58 is a special exception for estate located in Taiwan, and is not itself a renvoi provision.

In other words, for a Taiwanese national, the basic structure of Article 58 differs from mainland China's structure, in which Japanese law is reached through the habitual residence or the location of the immovable. The individual determination of the applicable law is reserved to an attorney.

Comparison of mainland China and Taiwan

Deceased	Basic applicable-law rule on the other side	Renvoi to Japanese law
Mainland China	Movable property: law of habitual residence at death; immovable property: law of location	Japanese law may be reached where the person lived in Japan or the immovable is in Japan
Taiwan	In principle, the deceased's national law at death	Taiwan law is designated in principle; mainland-China-type renvoi usually does not arise

The above is general only; "always" and "in every case" are not asserted.

How do overseas or foreign national heirs prove family relationships?

Do not lump everything into "foreign family registers and removed family registers"; some countries have no family register system like Japan's.

In general, documents such as the person's own family register, birth certificate, marriage certificate, death certificate, family relationship certificate, and other official documents proving family relationships are used.

For obtaining Taiwan family registers and removed family registers, see Where to obtain a Taiwanese removed family register.

Are a Japanese translation, notarisation and apostille required?

For documents prepared in a foreign language, a Japanese translation may be required by the Japanese addressee.

On the other hand, whether notarisation, consular authentication or an apostille is required differs depending on the country, type of document, addressee and type of procedure. It cannot be said without qualification that "an apostille is always required" or "consular authentication is always required". Confirm with the addressee in advance.

Can the certified list of statutory heirs be used?

If, because the deceased or an heir does not hold Japanese nationality, the required family register or removed family register certificates cannot be submitted, the statutory inheritance information certification system cannot be used (Legal Affairs Bureau).

However, this is not the simple rule that "the system cannot be used if even one person is a foreign national". For the availability and details, see What is the certified list of statutory heirs?.

What does a Japanese heir living overseas use instead of a seal certificate?

For a Japanese person without a residence record or seal registration in Japan, a signature certification by a Japanese diplomatic mission is sometimes used in place of a seal certificate. A signature certification by a diplomatic mission is, in principle, a system for Japanese nationals living overseas.

However, the required form differs by addressee and procedure, so confirm in advance with the user. It cannot be said without qualification that "anyone living overseas can get a signature certification at a Japanese embassy".

How does a foreign national heir prove a signature?

It cannot be said that a foreign national heir can use a signature certification by a Japanese diplomatic mission as a matter of course. Documents such as a signature certification or affidavit by the person's own government authorities, their own consulate, a local notary, or another local public body are used in some cases. Confirm according to nationality, place of residence and addressee.

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For inheritance registration, confirm the specific required documents and the agency application with a judicial scrivener or the registry office having jurisdiction.

Taiwan has a seal registration system, which is not the same as the signature certification by a Japanese diplomatic mission for a Japanese person living overseas. For Taiwan, see An estate division agreement when an heir lives in Taiwan.

How is an estate division agreement prepared?

For an inheritance involving overseas or foreign national elements, confirm who the heirs are, which country's law applies, and how the signature and seal are certified, and then record the agreed content in an estate division agreement.

An administrative scrivener documents the content once it has been agreed. The scrivener does not negotiate among the heirs, judge the legal validity of the division, or determine the heirs and shares based on foreign law. For the basics, see Can you prepare an estate division agreement yourself?.

Which law applies to a will involving overseas elements?

For a will, "the formation and effect of the will" and "the formalities of the will" are considered separately.

Article 37 of the Act on General Rules for Application of Laws provides that the formation and effect of a will are governed by the testator's national law at the time the will was made. On the other hand, the "formalities" of a will are governed by the Act on the Law Governing the Formalities of Wills.

For formalities, there are multiple connecting factors: the law of the place of the act, the national law at the time of making or at death, the law of the domicile at the time of making or at death, the law of habitual residence at the time of making or at death, and the law of the place of the immovable for immovable property.

In other words, "the law governing the content and effect of a will" and "the law governing the formalities of a will" are considered separately. The individual determination of the applicable law and validity is reserved to an attorney. For the basics of wills in Japan, see Holograph wills vs notarised wills.

Who to consult about inheritance registration, inheritance tax and a tax agent

Whether Japanese inheritance tax applies is not determined by overseas residence or foreign nationality alone. Depending on the address, nationality, past residence and location of assets of the deceased and the heirs, sometimes only domestic assets are taxed and sometimes overseas assets are also taxed.

If an heir without an address in Japan must file a Japanese inheritance tax return, a tax agent (nozei kanrinin) must be appointed. The individual determination of the tax obligation, the scope of taxation, the filing and the need for a tax agent is the domain of a tax accountant. Inheritance registration is the domain of a judicial scrivener.

What an administrative scrivener can and cannot do

An administrative scrivener does roughly the following:

• collecting family registers and the like;
• organising foreign family relationship documents;
• organising translations;
• handling the certified list of statutory heirs where the system is available;
• preparing an estate division agreement based on agreed content;
• organising documents required for domestic procedures;
• organising materials to pass to each professional.

An administrative scrivener does not interpret foreign law, determine the applicable law, judge renvoi in an individual case, legally determine the range or shares of heirs, negotiate or handle disputes among heirs, judge tax or file returns, or act as an agent for inheritance registration.

The division of work is:

• applicable law, foreign law and disputes → an attorney;
• inheritance tax and the tax agent → a tax accountant;
• inheritance registration → a judicial scrivener;
• sale and management of real estate → a licensed real estate brokerage (Yotsuba Real Estate Co., Ltd., a separate business from Yotsuba Administrative Scrivener Office under a separate contract).

Each is an independent contract, and our office receives no referral fee.

Where to confirm individual cases such as Taiwan and mainland China

For details of individual countries and regions, see:

• Taiwan family registers and removed family registers: Where to obtain a Taiwanese removed family register
• Seal certificates and an estate division agreement for a Taiwan-resident heir: An estate division agreement when an heir lives in Taiwan
• Electronic signature and alternatives for overseas residents: How far can electronic contracts be used?

It is not the case that "living overseas means electronic signature solves everything". Whether it can be used depends on the type of document, the addressee and the procedure such as registration.

How overseas inheritance proceeds in Bunkyo

Yotsuba Administrative Scrivener Office (Kohinata, Bunkyo, about five minutes' walk from Myogadani Station) guides you in stages through confirming the scope of required documents, collecting and organising domestic and overseas documents, organising translations and documenting the agreed content. We consult in Chinese (traditional and simplified) and English.

For the flow of engagement, see Engagement Flow; for fees, see Fee Schedule; and for the whole picture, see Inheritance, Wills and Trusts. For the sale and management of inherited real estate, see Complete Guide to Inherited Real Estate (Yotsuba Real Estate). Yotsuba Real Estate Co., Ltd. handles this as a separate business under a separate contract from Yotsuba Administrative Scrivener Office.

FAQ

Q. If an heir is Chinese, does Chinese law govern the inheritance?
A. The heir's nationality alone does not decide. Under Japan's Article 36, the deceased's national law is examined first. If the deceased was foreign, the applicable law, including renvoi, must be confirmed. This is the domain of an attorney.

Q. Is there a difference between a Chinese and a Taiwanese deceased?
A. There can be. Mainland China's private international law designates, for statutory inheritance, the law of habitual residence for movable property and the law of location for immovable property, so Japanese law may be reached by renvoi. Taiwan in principle designates the deceased's national law at death, so the structure differs. Consult an attorney.

Q. What does a Japanese person living overseas use instead of a seal certificate?
A. A signature certification by a diplomatic mission is sometimes used. Confirm in advance, because the required form differs by addressee.

Q. Can a foreign national heir also get a signature certification at a Japanese embassy?
A. A signature certification by a Japanese diplomatic mission is, in principle, for Japanese nationals living overseas. A foreign national should consider a signature certification by their own government authorities, consulate or a local notary, and confirm with the addressee.

Q. If an heir lives overseas, what happens to Japanese inheritance tax?
A. Overseas residence or foreign nationality alone does not decide. The scope of taxation changes with the address and nationality of the deceased and the heirs. If an heir without an address in Japan must file in Japan, a tax agent is required. Consult a tax accountant.

Sources (Primary Information)

• Act on General Rules for Application of Laws, Article 36 (inheritance governed by the deceased's national law)
• Act on General Rules for Application of Laws, Article 37 (formation and effect of a will governed by the testator's national law)
• Act on General Rules for Application of Laws, Article 38 (determination of national law in cases of multiple nationalities or statelessness)
• Act on General Rules for Application of Laws, Article 41 (renvoi)
• Act on the Law Governing the Formalities of Wills
• Legal Affairs Bureau, "Specific procedure of the statutory inheritance information certification system" (availability for foreign nationals)
• Ministry of Foreign Affairs, "Signature certification at overseas diplomatic missions"
• Ministry of Justice / Legal Affairs Bureau materials on real estate registration for persons resident abroad and foreign nationals
• National Tax Agency, "Persons liable for inheritance tax" and "Tax agent"
• People's Republic of China, "涉外民事关系法律适用法" (Law on the Application of Law to Foreign-related Civil Relations), Article 9 (exclusion of renvoi) and Article 31 (applicable law of statutory inheritance)
• Taiwan, "涉外民事法律適用法" (Act Governing the Choice of Law in Civil Matters Involving Foreign Elements), Article 6 (renvoi) and Article 58 (inheritance governed by the deceased's national law at death)

This article provides general information and does not guarantee the applicable law of any individual inheritance or will, the range of heirs, the shares, the scope of taxation, or the permissibility or effect of any procedure. Applicable law, foreign law, renvoi and disputes are handled by an attorney; tax by a tax accountant; inheritance registration by a judicial scrivener; and real estate by a licensed real estate brokerage, each as an independent business under a separate contract. Our office receives no referral fee. Individual judgements are made by a qualified professional after an interview. Written by Joji Uramatsu (Administrative Scrivener and Real Estate Transaction Specialist).