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The Korean law is protective of the spouse who is left behind. Example 1: The deceased left a spouse and one child. The shares of the inheritance will be 2/3 for the spouse and 1/3 for the child, because the spouse should get 50% more share than their co-inheritor.Under Korean inheritance law, the ownership of an estate is automatically transferred to the heir(s) upon the death of the deceased. When there are multiple heirs, the heirs come into a co-ownership status. This is done by the operation of law.In South Korea, a will is a document in writing or a recorded statement which designates beneficiaries (grantees) and their portions to the deceased’s (testator’s) estate. South Korea recognises freedom of will within the limitations of the law, which is called legal reserve of inheritance.

The tax rate is structured in a five-stage, progressive tax rate ranging from a minimum of 10% to a maximum of 50%.

Korea Inheritance tax rate.
Tax base Rate Progressive deduction (KRW)
More than KRW 1 billion ~ less than KRW 3 billion 40% 160 million
21 thg 3, 2022

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For most foreigners, the Korean inheritance law will not apply, but there are a few instances where it will. This article is here to give you a brief overview of what the Korean inheritance law covers and will help you navigate the system.
0:00 Korean Inheritance Law Overview
1:03 Korean Inheritance Priority
2:19 Surviving Spouse’s Inheritance Right
2:48 Inheritance by Representation
3:18 Infringement and Recovery of Inheritance Right
4:12 The Size of Inheritance Share
5:55 Korean Will
6:37 Disinherit a Family Member
7:13 Renounce Inheritance
7:45 Korean Inheritance Lawyer
8:28 Korean Inheritance Tax
Find more info here: https://seoullawgroup.com/korean-inheritance-law/
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Introduction to the Korean Inheritance Law – Ask Korea Law

The basic rule of the Korean inheritance law is that the property of the deceased is distributed according to his or her will. So, a person who …

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Source: askkorealaw.com

Date Published: 5/8/2021

View: 2963

Inheritance Law in South Korea – Angloinfo

If a foreigner gains Korean citizenship and dies without a will, Korean inheritance law may apply. Inheritance of property occurs automatically at the time …

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Source: www.angloinfo.com

Date Published: 4/19/2022

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Korean Inheritance Law (based on 2022 Korean Civil Code)

The Korean Civil Act regulates inheritance shares as follows. Article 1009 (Statutory Share in Inheritance) (1) If there exist two or more …

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Source: pureumlawoffice.com

Date Published: 5/10/2021

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Inheritance legal mechanisms

Republic of Korea … In the absence of a will, the law prescribes the proportions inherited. First, the children and spouse inherit; they are entitled to …

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Source: www.fao.org

Date Published: 9/29/2021

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Ⅰ. Inheritance and Will

When a deceased Korean national lived in Korea at the time of death, inheritance and will shall be governed by the Korean law. Thus, inheritor shall inherit by …

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Source: down.mofa.go.kr

Date Published: 10/11/2021

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Family / Inheritance Law – Dentons Lee

Family relations and inheritance laws in Korea are subject to frequent alterations, reflecting Korean society and culture’s continuous evolvement.

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Source: www.dentonslee.com

Date Published: 9/26/2021

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Will in South Korea | South Korean Will | Inheritance Tax Laws

In Korean law, the spouse and children of the deceased are entitled to one half of the estate. In their absence, one third is reserved for …

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Source: www.globalpropertyguide.com

Date Published: 9/30/2021

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주제와 관련된 더 많은 사진을 참조하십시오 Korean Inheritance Law: Inheritance Priority \u0026 Right, Taxes and Lawyers. 댓글에서 더 많은 관련 이미지를 보거나 필요한 경우 더 많은 관련 기사를 볼 수 있습니다.

Korean Inheritance Law: Inheritance Priority \u0026 Right, Taxes and Lawyers
Korean Inheritance Law: Inheritance Priority \u0026 Right, Taxes and Lawyers

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How does inheritance work in South Korea?

Under Korean inheritance law, the ownership of an estate is automatically transferred to the heir(s) upon the death of the deceased. When there are multiple heirs, the heirs come into a co-ownership status. This is done by the operation of law.

What is the inheritance tax in Korea?

The tax rate is structured in a five-stage, progressive tax rate ranging from a minimum of 10% to a maximum of 50%.

Korea Inheritance tax rate.
Tax base Rate Progressive deduction (KRW)
More than KRW 1 billion ~ less than KRW 3 billion 40% 160 million
21 thg 3, 2022

What is a will in Korean?

In South Korea, a will is a document in writing or a recorded statement which designates beneficiaries (grantees) and their portions to the deceased’s (testator’s) estate. South Korea recognises freedom of will within the limitations of the law, which is called legal reserve of inheritance.

What happens if there is no one to inherit?

If there are children, but no spouse, each child receives an equal share. If the child has died, then their descendants (e.g., children) will receive their share of the estate instead. Next of kin order of priority is as follows: No spouse or children, the next of kin is parents.

Does Korea have an estate tax?

South Korea imposes an inheritance tax of at least 50%, one of the highest in the world.

How do you make a will in Korea?

In order to make a will by a sound recording, the testator must orally state the tenor of his will, his full name and the date, and the witness must orally state that the will made by the testator is due and correct and also state his full name.

How much is US Inheritance tax?

What Is the Federal Inheritance Tax Rate? There is no federal inheritance tax—that is, a tax on the sum of assets an individual receives from a deceased person. However, a federal estate tax applies to estates larger than $11.7 million for 2021 and $12.06 million for 2022.

Are loan sharks common in Korea?

Reuters notes that only about five percent of South Koreans borrow from private money-lenders; however, these borrowers make up 85 percent of the country’s debt defaulters (8 Sept. 2009). Other sources estimate the number of borrowers from unregistered loan sharks at 1.8 million people (The Chosun Ilbo 15 Oct.

How many countries have Inheritance tax?

The COVID-19 crisis will also place countries under greater pressure to raise additional tax revenues and address inequalities, which have been exacerbated since the start of the pandemic. Inheritance and estate taxes are levied in 24 OECD countries. Most countries levy recipient-based inheritance taxes.

Does Korea have power of attorney?

There are two types of power of attorney that can be used as an estate plan in Korea. One is as adult guardianship and the other is a private power of attorney.

How do you use I will in Korean?

I will do it for you/제가 할게요/ jae ga hal gae yo.” I will give you some example sentences how you can use them in the sentences. Please see the examples below with phonetic alphabet. I will do it for you/ 제가 할게요/ jae ga hal gae yo. I will meet him for you/ 제가 대신 만날게요/ jae ga dae sin man nal gae yo.

Who is legally my next of kin?

The term usually means your nearest blood relative. In the case of a married couple or a civil partnership it usually means their husband or wife. Next of kin is a title that can be given, by you, to anyone from your partner to blood relatives and even friends.

Do grandchildren usually get inheritance?

Grandchildren Gain Assets by Default

Although the intent of grandparents may have been to leave everything to their adult children, an inheritance may be given to grandchildren unintentionally.

Who are the heirs to an estate without will?

If the deceased doesn’t leave a will (intestate proceeding), the estate will have no free portion and will be divided equally among the surviving spouse and legitimate children. If there are illegitimate children, they are entitled to the equivalent of ½ the share of the legitimate children.

Are loan sharks common in Korea?

Reuters notes that only about five percent of South Koreans borrow from private money-lenders; however, these borrowers make up 85 percent of the country’s debt defaulters (8 Sept. 2009). Other sources estimate the number of borrowers from unregistered loan sharks at 1.8 million people (The Chosun Ilbo 15 Oct.

How much is US Inheritance tax?

What Is the Federal Inheritance Tax Rate? There is no federal inheritance tax—that is, a tax on the sum of assets an individual receives from a deceased person. However, a federal estate tax applies to estates larger than $11.7 million for 2021 and $12.06 million for 2022.

How many countries have Inheritance tax?

The COVID-19 crisis will also place countries under greater pressure to raise additional tax revenues and address inequalities, which have been exacerbated since the start of the pandemic. Inheritance and estate taxes are levied in 24 OECD countries. Most countries levy recipient-based inheritance taxes.

How much is Inheritance tax in Japan?

What is inheritance tax? Inheritance tax (sōzokuzei) in Japan is a tax paid by someone who inherits money or property from someone who has died. In Japan, it is paid as a national tax (between 10 and 55% after an exemption of ¥30 million + ¥6 million per heir is deducted from the estate).

Korean Inheritance Law: Inheritance Priority & Right, Taxes and Lawyer

Korean Inheritance Law: Inheritance Priority & Right, Taxes and Lawyers

For most foreigners, the Korean inheritance law will not apply, but there are a few instances where it will. This article is here to give you a brief overview of what the Korean inheritance law covers and will help you navigate the system.

Korean Inheritance Law Overview

Below is a brief overview of everything the Korean inheritance law entails, from inheritance shares, to Korean wills, disinheritance, how to claim an inheritance and how the Korean inheritance law applies to non-Koreans.

1. Does Korean Inheritance Law Apply To Foreigners?

In many cases, Korean inheritance law will not be applied when it comes to foreigners, as they will fall under the Act on Private International Law.

There are some instances where the Korean Inheritance Law will be applied:

when a foreigner’s parents have the Korean nationality

when a foreigner obtained the Korean nationality

when a foreigner who owns real estate in Korea specified using one of the ‘methods of will’ that the Korean inheritance law should be applied in their inheritance (based on Article 49).

Act on Private International Law

Article 49 (Inheritance) (1) Inheritance shall be governed by the law of nationality of the decedent at the time of death.

(2) When the decedent clearly designates, by the methods applicable to a will, one of the following laws as the applicable law, inheritance shall be governed by the law irrespective of the provision of paragraph (1):

The law of the country where the habitual residence of the decedent is located at the time of the designation: Provided, That such designation shall be effective only if the decedent had maintained his/her habitual residence in the country until the time of his/her death; The law of the situs of real property with respect to the inheritance regarding the real property.

Foreigners do not need to fly into Korea to deal with the inheritance, it is possible to appoint a lawyer, like Seoul Law Group, who will handle your case.

2. Korean Inheritance Priority

The Korean law reserves portions of the inheritance for each qualified heir. If no will was made up, the reserved portions will be granted to the heirs in the following order.

Civil Act

Article 1000 (Priority of Inheritance) (1) In inheritance, persons become inheritors in the following order:

Lineal descendants of the inheritee; Lineal ascendants of the inheritee; Brothers and sisters of the inheritee; Collateral blood relatives within the fourth degree of the inheritee.

“Lineal descendants” means children, grandchildren, great-grandchildren, etc. “Lineal ascendants” means parents, grandparents, great-grandparents, etc.

It should be noted that unborn foetus usually do not have legal rights because they are not “human” yet, but law makes an exception for them when it comes to inheritance. Unborn child still counts as “lineal descendant,” and they are treated as if they are already born.

In case there are multiple people in the same rank, the priority goes to the one with the closest relationship. If there are multiple people in the same rank, and the same degree of relationship, then they become co-inheritors and receive equal shares of the inheritance.

Civil Act

Article 1009 (Statutory Share in Inheritance)

(1) If there exist two or more inheritors in the same rank, their shares of the inheritance shall be equally divided.

Not only the assets will be divided among the heirs, but also the debts. All of the heirs will inherit the debts based on Article 1000 and Article 1009 as well.

Example 1: The deceased left three children. The shares of the inheritance will be 1/3 for each of the children. (It doesn’t matter if one of them are not yet born.)

Example 2: The deceased left two children, and an old parent in a nursing home. The shares of the inheritance will be 1/2 for each of the children. The old parent would get nothing, because lineal descendant (= child) is in the higher rank than lineal ascendant (= parent).

Example 3: The deceased left no children, but two parents and a sibling. The shares of the inheritance will be 1/2 for each parent. The sibling would get nothing, because parent is in the higher rank than a sibling.

Example 4: The deceased left two siblings. The shares of the inheritance will be 1/2 for each for each sibling.

3. Surviving Spouse’s Inheritance Right

Article 1003 (Order of Inheritance of Spouse)

(1) If there exist such inheritors as provided in Article 1000 (1) 1 and 2, the spouse of the inheritee becomes a co-inheritor, in the same order as the said inheritor. If there exists no inheritor, the spouse becomes the sole inheritor.

The spouse becomes co-inheritor with any inheritors in the first and second rank. If there aren’t any inheritors in the first and second rank (which means the deceased didn’t left any children or parents) then the spouse becomes the sole inheritor of the deceased.

Civil Act

Article 1009 (Statutory Share in Inheritance)

(2) The share inherited by an inheritee’s surviving spouse shall be increased by 50 percent over the inherited share of the inheritee’s lineal descendant where the spouse inherits jointly with such descendants, or 50 percent over the inherited share of the inheritee’s lineal ascendant where the spouse inherits jointly with such ascendants.

Also, when the spouse become a co-inheritor, they get 50% more share than those of the other inheritors. The Korean law is protective of the spouse who is left behind.

Example 1: The deceased left a spouse and one child. The shares of the inheritance will be 2/3 for the spouse and 1/3 for the child, because the spouse should get 50% more share than their co-inheritor.

Example 2: The deceased left a spouse, two children and one parent. Only the spouse and children will become inheritors, and the parent won’t receive anything. The shares of the inheritance will be as follows: 2/7 for each child and 3/7 for the spouse.

Example 3: The deceased left a spouse and two siblings. The spouse would become a sole inheritor and get everything. Two siblings would get nothing, because they are not in the first nor second rank according to the Article 1000. (Siblings are on the third rank.)

4. Inheritance by Representation

We looked over the basic of share of inheritance, but it becomes complicated when a child predeceases their parent, but still left a spouse or a grandchild behind.

Let’s say there is a Person A, and his only child Person B. Person B got his own spouse and had a baby. Usually, Person B would outlive Person A, and inherit the whole property of Person A. In the end Person B, their spouse, and their baby would live happily ever after with Person A’s property.

But let’s say Person B met an untimely death from a terrible accident. Now that Person B doesn’t exist anymore, Person A doesn’t have any child, which means Person A’s sibling or cousin would inherit the property. This would be very unfair for Person B’s spouse and baby. If only Person B lived, his spouse and baby wouldn’t have any financial problem because their Person B would’ve inherited Person A’s property. But since Person B died, his spouse and baby would suffer without it.

So, the Korean law “passes on” the inheritance if a child dies before their parents. In this case, Person B’s right to the inheritance will be passed down to his spouse and baby. This is called “Inheritance by Representation.”

It should be noted that when the spouse remarries, inheritance passed down from the deceased spouse can’t be claimed. In this case, if Person B’s spouse got remarried after they got widowed, they can’t claim the inheritance of Person A’s property. So the baby would be the sole inheritor of Person A.

Let’s see another example. Person A has three children: Person B, Person C, and Person D. If these three children all outlive Person A, the share of inheritance will be 1/3 for each of them. But what if Person B died earlier than Person A? If Person B didn’t have any spouse or children of their own, then Person A’s property would be divided into 1/2 for Person C and Person D. But if Person B had two children, then the share of the inheritance would be like this: 1/3 for Person C, 1/3 for Person D, and 1/6 for each of Person B’s children.

5. Infringement and Recovery of Inheritance Right

Upon the death of the deceased, the ownership of the estate is automatically transferred to the heirs. Therefore this does not require any further legal actions. If there are multiple heirs, they would share the ownership of the estate.

But still, it is possible that inheritance rights be infringed when an heir takes a bigger portion than what they are entitled to or if a person who doesn’t have inheritance right takes ownership over the estate.

In case of inheritance right infringement, the lawful heirs can file a lawsuit, but this needs to be filed within 3 years from when the infringement was found out or within 10 years of the infringement happening.

Civil Act

Article 999 (Claim for Recovery of Inheritance)

(1) If the right of inheritance is infringed by a person who pretends to have the right of inheritance, the person who has the right of inheritance or his/her legal representative may bring an action for recovery of inheritance.

(2) The claim for recovery of inheritance under paragraph (1) shall lapse at the expiration of three years from the date he comes to know the infringement, or ten years from the date the right of inheritance is infringed.

The court will analyse the claim and when this is accepted, they will order the infringer to return the property to the lawful heirs.

6. The Size of Inheritance Share

Even though each heir will receive a share of the inheritance, the calculations of the share size is not a straightforward process. Especially in the case when one of the heirs has received a big gift from the deceased or when one family member has supported the deceased financially or physically during their lifetime.

There are two types of mechanisms to prevent unfairness towards the heirs.

Contributory Portion

Contributory portion is granted when any of the heirs had provided the deceased with any special care (financially or physically) during their lifetime. Let’s say the deceased has three children. But only one child financially supported their parent in their old age, visited them often with gifts, or paid for parent’s medical fee so that the parent didn’t have to pay for it, that child have a right to receive more inheritance than other two children.

The Korean law leaves it up to the heirs to agree on who shall have a contributory share and how much this would be. If the heirs are unable to come to an agreement, the Korean court will be making the decision.

Special benefit

In case one of the heirs has received a significant gift from the deceased before their death, the Korean law will consider this as being a prepayment of the inheritance, which means their inheritance would become smaller than other heirs. Let’s say the deceased has three children again. But the deceased only sent one child to the expensive university, or gave that child a large amount of money to get married or start a business, that child should get a less inheritance than other two children.

Again, all the heirs have to come to an agreement and if this agreement can’t be reached, the Korean court will be making the decision.

6. Korean Will

All of the above occurs only when the deceased didn’t leave any will. So, to avoid complicated legal dispute after your death, it is recommended to make a will. According to the Korean Law, there are five ways to make a will: holograph document, sound recording, notarial and secret documents, and instrument of dictation.

Will by Holograph Document: The testator must write with their own handwriting the whole text, the date, the domicile and their full name, and must affix their seal thereto.

Will by Sound Recording: The testator must orally state the tenor of their will, their full name and the date, and the witness must orally state that the will made by the testator is due and correct and also state their full name.

Will by Notarial Document: The testator must orally state the tenor of their will before a notary, in the presence of two witnesses and the notary must write down and read it, and then the testator and each of the witness must affix their signature or names, and seals to the writing after acknowledging it to be due and correct.

Will by Secret Document: The testator must close up the document on which the writer’s full name was written and affix their seal thereto, and after the testator has produced the sealed document before at least two witnesses and declares that it is their testamentary document, the date of the production of the document must be written on the sealed cover, and then the testator and the witnesses must affix their signatures or names and seals thereto.

Will by Instrument of Dictation: This method is only used when a will is not able to be made in compliance with the forms mentioned in the preceding four Articles due to disease or any other cause imminent. The testator must orally declare the tenor of their will to one of the witnesses in the presence of at least two witnesses, and the person to whom the oral declaration is made must write it down and read it, and the testator and each witness, after their having acknowledged the writing to be due and correct, must affix their signature and seal thereto.

If no will has been prepared, the rule of intestate succession will be used to divide the inheritance. When a will is present, a person who normally wouldn’t be categorized as an inheritor by law can also become a beneficiary. Even though a will is present, this doesn’t mean that certain lawful heirs can be excluded from receiving their lawful share.

7. Disinherit a Family Member

Currently, the Korean inheritance law does not allow a will to completely overrule the Korean law. Lawful inheritors will always be able to receive the minimum statutory share, this law was created to protect inheritors from being disinherited or left with a very small portion of the inheritance. The elective share is equal to 50% of the intestate succession share.

Civil Act

Article 1112 (Persons with Right to Legal Reserve of Inheritance and Legal Reserve of Inheritance)

Legal reserve of inheritance for an inheritor shall be calculated according to the following subparagraphs:

1. For lineal descendants of an inheritee, one half of the inheritance stipulated by law;

2. For the spouse of an inheritee, one half of the inheritance stipulated by law;

3. For lineal ascendants of an inheritee, one third of the inheritance stipulated by law;

4. For brothers and sisters of an inheritee, one third of the inheritance stipulated by law.

However, there are five situations when the legal heir gets actually disinherited by the law. In these situations, the heir loses their inheritance right, and the right passes on to the next heir.

A person who has intentionally killed or attempted to kill their lineal ascendant, the inheritee, their spouse, or any person who has priority or is in the same order of inheritance.

A person who has intentionally assaulted their lineal ascendant, the inheritee, or their spouse, and caused their death.

A person who interferes by fraud or duress with a will or withdrawal of a will on inheritance of the inheritee.

A person who, by fraud or duress, has the inheritee make a will on their inheritance.

A person who forges, alters, destroys, or conceals a will on inheritance of the inheritee.

8. Renounce Inheritance

In case you don’t want to receive the inheritance that if left for you, a renunciation of inheritance must be filed with the Korean court within 3 months from the date the heir found out about the passing of the deceased.

In case the debts of the inheritance are bigger than the assets, a reserved renunciation can be filed within 3 months of when the heir found out about this fact. A reserved renunciation means that the heir only inherits the debts to the extent that the inherited assets can pay off.

Korean Inheritance Lawyer

All of the information mentioned in this article are the basics of the Korean inheritance law. It is highly recommended to hire a Korean inheritance lawyer to help deal with the inheritance, and especially as a foreigner. Get in contact with Seoul Law Group, as we are experienced in handling Korean inheritance cases between Koreans, Korean families living abroad and when foreigners are involved.

A common mistake made by foreigners who are involved in an inheritance dispute is that they contact a Korean law firm too late into the process. This can have a negative effect on the outcome of the law case. When it comes to legal cases, it is highly recommended to involve a lawyer as soon as possible.

Korean Inheritance Tax

Anyone receiving any kind of inheritance within 10 years of the benefactor’s death is required to pay inheritance taxes. The tax rate is based on the market value of the estate, minus deductions like debts left by the deceased and public imposts. Any property gifted shortly before death, will also be included in taxable inheritance.

The rates for taxes are based on progressive rates between 10 and 50%:

TAX BASE, KRW TAX RATE Up to 100 million 10% 100 million – 500 million 20% on band over 100 million 500 million – 1 billion 30% on band over 500 million 1 billion – 3 billion 40% on band over 1 billion Over 3 billion 50% on band over 3 billion

Frequently Asked Question

Introduction to the Korean Inheritance Law

Under the Korean inheritance law, the inheritance comes to fruition immediately when a person is deceased. The Korean inheritance law, the Part V of the Civil Act, provides who shall become the inheritor and beneficiary of the property of a deceased person, i.e. estate.

The inheritor and beneficiary, however, shall not always take everything from the estate. There are separate rules and restrictions on the distribution of the estate in South Korea.

In this article, we will explain to you the basic rules and practices of inheritance in Korea.

When Does the Korean Inheritance Law Apply

Before we dive into the Korean inheritance law, let’s find out in what situation the Korean inheritance law becomes the governing law in an international inheritance case.

Every jurisdiction has its own choice of law rules. Korea has it on the Act on Private International Law. According to the act, unless the deceased duly designated another country’s law by her valid will, the law of the deceased’s country becomes the governing law.

Also, it should be noted that the act recognizes renvoi. Renvoi is a subset of choice of law rules and its concept is prescribed in the Article 9 of the act as follows:

Article 9 (Renvoi in Case of Designation of Applicable Law) In case a foreign law is designated as an applicable law under this Act, when the law of South Korea shall be applied under the law of that foreign country, the law of South Korea (except the provisions of the law to designate the applicable law) shall govern.

In short, in intestate succession, when the deceased is not a Korean citizen, we should look to the choice of law rules of that foreign country. And if that country’s choice of law rules refers back to the law of Korea, the Korean inheritance law eventually becomes the governing law.

This is particularly relevant with regard to some countries whose choice or law rules deal with the estate differently according to whether it is an immovable property or movable property.

For example, in the United States, except as may be provided by law, the law of the deceased’s domicile applies to the inheritance of a movable (e.g. personal property). And the law of where the property is situated applies to the inheritance of an immovable (e.g. real estate).

Thus, when an American whose home state is New York dies in Korea without a will, the Korean court shall apply the Korean inheritance law with respect to his Korean bank accounts. And for the succession of a building in New York, the Korean court shall apply the New York intestate succession law.

Read more: Choice of Laws Is Critical When It Comes to an International Inheritance

Who Shall Become the Heirs and How to Distribute the Estate under the Korean Inheritance Law

The basic rule of the Korean inheritance law is that the property of the deceased is distributed according to his or her will. So, a person who is not categorized as an inheritor by law can become a beneficiary of the estate by the decedent’s will.

What if there is no valid will? The Korean inheritance law sets forth the rule of intestate succession. This rule of intestate succession names the beneficiary and the shares of each beneficiary for a distribution purpose.

According to the intestate succession rule, persons become beneficiaries in the following order.

Direct descendants (children or grandchildren) Direct ascendants (parents or grandparents) Siblings Relative within the 4th degree of collateral consanguinity

If there are multiple persons standing in the same rank, the closest in the degree of relationship shall have the priority. There could be multiple persons of the same rank and the same degree of relationship. In such a case, they become co-inheritors and co-beneficiaries. The shares of the co-beneficiaries are all equal.

If the child is adopted, it establishes a parental relationship and the child can inherit the adoptive parent. Can the adopted child inherit the birth parent? Please refer to our previous article on the inheritance right of the adopted child.

Surviving Spouse’s Inheritance Right and Share

The spouse has a unique position. If there are no relatives in the first and second rank, the spouse shall become the sole inheritor. If there is any inheritor(s) in the first or second rank, the spouse shall become the co-inheritor with that inheritor(s).

As to the share, Korean law provides more protection to the spouse. According to the Korean intestate succession rule, the spouse shall have 50% more share than those of other co-heirs.

For example, let’s assume a deceased was survive by a spouse, 2 children, and the parents. The 2 children and the spouse shall become the co-heirs. The parents can’t be an heir. The inheritance shares are 2/7 for each child and 3/7 for the spouse.

When a Parent or a Spouse Dies Before the Deceased

Korean Inheritance law acknowledges the succession per stirpes and lapse. This means, for example, that when a son dies before his parent, the son’s right to his parent’s estate as an intestate heir passes down to his son and wife.

What happens if the wife remarries after the death of the husband and before the death of the husband’s parent? As the remarriage disconnects the wife from the inheritance from his ex-husband, she cannot claim for a succession per stripes, either.

Calculation of Actual Share

Although it is clear that the Korean inheritance law prescribes each heir’s statutory share, the actual calculation of how much each heir shall take eventually is not a simple process.

That is because there could be some situations where one heir had received a gift with a significant value from the deceased during his lifetime. Also, one family member could have supported the deceased financially and/or physically.

In such a situation, distributing the estate only by the statutory share could be unfair. Here, the Korean inheritance law provides 2 legal mechanisms to mitigate the unfairness.

Special Contributory Share

If any heir had provided a deceased with a special contribution in taking care of the deceased or in maintaining/increasing the value of the estate, she can take some portion out of the estate over other heirs. We call it a special contribution share.

Basically, the Korean inheritance law leaves it to the heirs’ agreement to decide who shall have a special contributory share and how much. If such an agreement is unable to reach, the court will make a decision per the heir’s request.

Previously we wrote an article on this special contribution share. If you’re interested, please check on this article.

Special Benefit

If an heir had received any assets/money from the deceased as a gift when the deceased was alive, we call it a “special benefit”. The Korean inheritance law treats the special benefit as a prepayment of inheritance share. Thus, the court deducts the value of the special benefit from the heir’s inheritance share when calculating how much the heir can get from the estate.

It is very common in Korea that an heir receives a wide range of support from their old parents. Sometimes it could be cash, sometimes lands. It is the job of you and your lawyer to find out how much the Korean heir received the benefits.

Deceased Cannot Disinherit an Heir Entirely – Elective Share

As mentioned earlier, the rule of intestate succession only applies when there is no valid will. Does this mean the deceased can dispose of the estate freely by his own will?

The answer is not always. The Korean inheritance law recognizes an elective share, i.e. a statutory minimum share to the estate which is obliged to go to an inheritor. This is intended to protect the inheritor from being disinherited or left only a small portion of the estate.

Thanks to this rule, an inheritor may elect to receive the minimum statutory share despite what the deceased had written on the will. The decedent’s freedom to make a will is restricted by this elective share.

Currently, the elective share under Korean inheritance law is 50% of the intestate succession share that an inheritor would have received under the intestacy law.

So, in the above example, let’s further assume that the deceased had left a will that named his spouse as the sole beneficiary. Even in such a situation, the 2 children can still claim the elective share. The elective shares are 1/7 for each child.

How to Secure and Collect Your Inheritance Claim in Korea

Dividing the Estate among the Heirs

Under Korean inheritance law, the ownership of an estate is automatically transferred to the heir(s) upon the death of the deceased. When there are multiple heirs, the heirs come into a co-ownership status. This is done by the operation of law. Therefore, it does not require any further legal steps such as title registration.

Each heir can get out of a co-ownership and take a particular portion of the estate by his or her own property by making an agreement with other heirs or applying for a court order.

Filing a Suit When the Inheritance Right Was Infringed

If a non-heir holds an ownership of the estate or an heir took more portion of the estate than what is granted according to this legitimate share, it constitutes an infringement of inheritance right.

Common cases of inheritance infringement are as follows:

the deceased left a wife and child, but his brother took ownership of the estate. (The estate should be awarded to the wife and child)

the deceased left two children, but the elder brother took everything. (the elder brother is entitled to only 50% of the estate)

In this situation, the heir whose inheritance right is infringed can correct the infringement by filing a lawsuit. One this to note is that this kind of legal action must be filed within either (i) 3 years from the date when he found out the infringement or (ii) 10 years from the date when the infringement took place, whichever comes first.

When the claim is accepted, the court orders the infringer to return the property to the legitimate heir.

When the defendant refuses to perform his judgment liability, the general process of debt collection can be applicable.

Read More: Korean Lawyer Explains Debt Collections In South Korea – Overview

Transparency and Knowledge Are Essential in Dealing with Korean Heirs

Most of the inheritance disputes in Korea center on contesting the will and enforcing the elective share. (There are other issues such as a contributory share and a deductible special benefit. We will explain these important issues later with other posts)

We have seen many cases where the Korean heirs urge a non-Korean heir to hand over a certain legal document. They say that they need the document urgently in order to take care of the distribution and tax report. The problem is that they often do not fully disclose the situation of the estate and the foreign heir’s rights. They even provide false information about Korean law and practice. This could harm the transparency of the whole process of distribution. This also could cause a considerable financial loss to the foreign heir who is lack sufficient and reliable information on the Korean inheritance law.

Inheritance law is a complicated area of law in South Korea. Thus, It is a good idea to seek legal advice from a Korean inheritance lawyer before handing over any legal document.

FAQ

Korea Inheritance Tax Advice in 2022 (How To Save Your Tax)

Korea Inheritance Tax Advice in 2022

Korea’s inheritance tax in 2022. Many of our foreign clients here at Pureum Law Office (PLO) have asked about Korea inheritance tax when we were assisting them with related legal issues . This blog post explains the rules and laws associated within 2022.

What is Inheritance tax?

Inheritance tax refers to a tax levied on inherited property when the property is transferred free of charge (or bequeathed) to a family member or relative upon one’s demise.

Who is an inheritance tax payer?

Taxpayers who are obligated to report and pay inheritance tax include “heirs” who inherit property and “beneficiaries” who acquire property upon the demise of a donor as prescribed in a will or gift contract.

Heirs refer to the legal heirs who are blood relatives(parents and children), successors in stirps, and spouses of the deceased (decedent).

Samsung Inheritance Tax

After Samsung Group Chairman Lee Kun-hee passed away in 2021, South Korea’s inheritance tax made headlines as Lee’s family was saddled with a world-record breaking inheritance tax estimated at KRW 12 trillion (over USD 10 billion). Please refer to this news article.

Who is subject to inheritance tax?

The scope of taxation varies depending on whether the deceased (decedent) is a resident or non-resident as of the date of commencement of inheritance.

(In the case of a resident) All inherited property in Korea and abroad

(For non-residents) All inherited property in Korea

Tip: Judgment of Residents and Non-Residents (Korea Inheritance Tax and Gift Tax Act Article 2)

(Resident) A person who has an address* in South Korea or has resided in the country for more than 183 days

* Whether it is applicable to the case of having an address in Korea is subject to Articles 2, 4, 1, 2, and 4 of the Enforcement Decree of the Income Tax Act.

(Non-Resident) A person who is not a resident

Korea Inheritance Tax Deductions and Limits

Classification of Deduction Amount (KRW) Limit General deduction (when resident is deceased) 500 million Basic deduction (whether a resident or nonresident is deceased) 200 million Minor deduction 10 million X (number of years until age 19) Senior (65+) deduction 50 million per senior Disabled deduction 10 million X (Life remaining to life expectancy) Children deduction 50 million per child Spouse deduction In case of 500 million or more: the actual amount inherited 3 billion In case of less than 500 million: 500 million Financial property deduction 20 million or less: the full amount More than 20 million but less than 100 million: 20 million More than 100 million but, less than 1 billion: Net financial asset value X 20% More than 1 billion: 200 million

Tip: In the case of the death of a resident, the larger amount is deducted by comparing the sum of the basic deduction and other personal deductions with the general deduction.

Korea Inheritance tax rate

The amount of inheritance tax is calculated by multiplying the tax base by the tax rate. The tax base is the amount excluding the above deductions from the inheritance amount. The tax rate is structured in a five-stage, progressive tax rate ranging from a minimum of 10% to a maximum of 50%.

You can check out other countries’ inheritance rates here.

Tax base Rate Progressive deduction (KRW) Less than KRW 100 million 10% More than KRW 100 million to less than KRW 500 million 20% 10 million More than KRW 500 million to less than KRW 1 billion 30% 60 million More than KRW 1 billion ~ less than KRW 3 billion 40% 160 million More than KRW 3 billion 50% 460 million

Is it Still hard to understand? Here is an exercise for you:

Background

A’s inherited property: Savings of KRW 1.4 billion

A’s family members: B(Spouse), C(22), D(18)

A passed away without having written a will.

1. Inherited property to each family member

B: KRW 600 million, C: KRW 400 million, D: KRW 400 million

(If you don’t understand how it divided as above, please check out one of our related posts)

2. Calculation of Tax Base

General deductions: KRW 500 million

The lum sum of basic deductions and other personal deductions:

KRW 200 million(basic) + KRW 10 million(minor) + KRW 100 million(children) + KRW 200 million(financial property) = KRW 510 million

When a and b are compared, b is larger, so KRW 510 million is deducted.

Tax base: KRW 1.4 bil – KRW 510 million = KRW 890 million

3. The total amount of inheritance tax

KRW 890 million X 0.3(30%) – KRW 60 million (progressive deduction) = KRW 207,000,000

Today, we have reviewed the general rules and laws of Korea’s inheritance tax but in order for you to calculate the exact amount of Korea inheritance tax, PLO highly advises to contact to professionals such as Certified Public Accountant or Tax Accountant in Korea. if you have questions about Korean inheritance tax, please contact us

What Does Next of Kin Mean? What Happens When There isn’t One?

Daniela Fortino

What is “next of kin” and what happens when there is none?

“Next of kin” is a term that comes up often when discussing post-death legal matters such as wills and funeral arrangements. Because it is frequently used, it is important to understand what it means and what happens when there is no next of kin. Here is further insight into the term and how it is used in the funeral industry.

What is next of kin?

“Next of kin” typically refers to a person’s closest living relative. The relative can be blood-related, such as children, parents or siblings, or can be someone who has a legal relationship with an individual, such as a spouse or adopted children.

How is “next of kin” used?

Next of kin is a term most used when someone dies, particularly without a will, which is a legal document that outlines how estate, assets, and custody of children, if applicable, will be handled after death. If someone dies with a will, an appointed administrator, called an executor, is responsible for their estate. The executor does not need to be the next of kin.

The estate and assets are distributed by the executor according to the wishes in the will, if it and in accordance with local and federal laws. The executor is also often in charge of funeral arrangements or administering funeral responsibilities to someone else.

Next of kin comes into play primarily when there is no will. If someone dies without a will, the law states that they have died “intestate.” This means that they have left no instructions on who will handle the responsibilities that would fall to an executor. In this case, inheritance rights, funeral arrangements, and other responsibilities will typically fall to the next of kin.

Dying without a will

There are many consequences to dying without a will. A person’s spouse is not guaranteed automatic inheritance of their property as sole beneficiary, particularly if a couple has children.

Depending on the province, children will inherit when they turn 18 or 19 years old. But no one, including a spouse, can decide how an estate will be divided if there is no will.

Instead a court-appointed representative is appointed to administer an estate and manage final affairs of the deceased without their family’s involvement. The administrator also divides and distributes the deceased person’s possessions, including any valuable items they may have owned, like property, investments and cash.

The distribution process is done according to a well-established legal formula, meaning there are no guarantees as to who will receive what. This can lead to court battles between family members as well as substantial stress and acrimony.

Case study: Catto v. Catto

A well-known court case in Canada called Catto v Catto illustrates what can happen when a person dies without a will.

Mark Catto died less than a year after he married his wife Donna. He had no will. The couple, who lived in Kingston, Ontario, had no children. Mark’s mother Nan and his brother Chuck also survived him.

Mark’s widow Donna made funeral arrangements in his hometown of Lacolle, Quebec. She also planned for Mark’s ashes to be buried in the family plot in Lacolle. However, before his ashes were buried, Donna seemingly changed her mind and advised the funeral director that she wished to take his remains back to Peterborough, Ontario.

Six months following Mark’s death, Donna interred the urn containing Mark’s ashes in Peterborough rather than in the family’s plot in Lacolle.

Mark’s mother Nan brought an legal challenge alleging that Mark had wished to be buried in the family plot in Lacolle. She sought orders to have the ashes exhumed and that half be returned to the family plot.

And this is where the court stepped in. Within section 29 of the Estates Act, it is the court’s discretion to appoint either a spouse or common-law partner, next-of-kin or both, as Estate Trustee, in the event a person dies without a will.

Justice R. Smith identified that the deceased’s mother lived outside of Ontario and determined that Donna was the sole beneficiary of Mark’s entire estate.

As the married spouse with no children, Donna was entitled to receive all of the assets from the estate. Justice Smith’s decision held that Donna should be given priority over the deceased’s mother and named Estate Trustee. Therefore only Donna had the right to make the burial arrangements for her late husband.

Determining next of kin in Canada

Determining the next of kin varies depending on the area or country that you live in. However, in many cases, responsibilities will fall to the spouse or children of the deceased. This is the case in Canada.

Canadian law dictates that the order of priority for inheritance and custody matters begins with the spouse. Therefore, if there is a spouse and no children, everything will be handled by the spouse. However, it is important to note that this does not apply to common-law partners. A common-law spouse must prove dependency on their deceased partner regardless of how long they have been together. If this can be satisfied, they can take charge of the deceased person’s estate.

If a spouse and children survive the deceased person, the spouse will get a “preferential share,” meaning that they will control up to $200,000 worth of assets. The leftover assets (called the “residue”) are divided between the spouse and children. How the residue is divided varies depending on the number of children.

If there are children, but no spouse, each child receives an equal share. If the child has died, then their descendants (e.g., children) will receive their share of the estate instead.

Next of kin order of priority is as follows:

No spouse or children, the next of kin is parents

No parents, the next of kin is brothers and sisters

No siblings, the next of kin is nieces and nephews

No niece/nephew, the next of kin is the next closest living relative

No next of kin and unclaimed bodies

When someone dies without a will, the government determines the next of kin or finds a claimant for the body. A claimant is a person (e.g., neighbour) or organization (e.g., church) that will take on the responsibility and cover the cost for funeral arrangements and final disposition. That person does not need to be blood-related.

If no next of kin or claimant comes forward, then a search will begin to find one. If a death is determined to be an accident or a suicide, then the local coroner’s office has jurisdiction and they are responsible for the claimant’s search. However, if the death is expected, it is outside the coroner’s jurisdiction. As such the facility where the death occurred is responsible for the search. For example, if a person dies in hospital with no next of kin, the hospital is responsible for the search. This is also the case with long term care facilities.

The timeframe for when this process starts and how long it takes varies. However, the search will typically begin 24 hours to 10 days after the death and be completed within a four to six-week window. If no claimant is found after this process, the body is considered unclaimed.

How a claimant search is conducted

The claimant search process begins with a review of records and known information about the death. This includes health chart reviews, a search of belongings, calls to emergency contacts and landlords, as well as contact with police, and more. This typically happens within the first week.

Between week two to five, the case can be referred to the Office of Public Guardian & Trustee Estates in Ontario and similar government organizations in other provinces and countries. The OPGT can act for Ontario residents if they died without a next of kin. The OPGT will initiate an investigation to search for a next of kin and can administer a person’s estate if it is determined by a court to have authority in a case.

The final week involves submitting documentation to the Regional Supervising Coroner’s office if no claimant was found. More information on this process can be found here.

Funeral and disposition arrangements for unclaimed bodies are made by the Office of the Chief Coroner. This will also happen when one or more eligible claimants are found, but they do not want to claim the body. These arrangements typically occur within the municipality where the individual died.

During the search, bodies are often stored in morgues or crematoriums. Afterwards, they are buried in cemeteries.

Funerals and burials are typically conducted as affordably as possible. For example, cemeteries on the outskirts of populated areas may be used because fees to bury people in these locations are lower than at cemeteries within towns and cities.

Bodies are typically buried without embalming, out of respect for the deceased, as this is an invasive process. In some cases, the deceased can be placed in unmarked graves with no formal ceremony. However, many funeral homes and cemeteries will try to provide a small service or marker out of respect.

In Toronto, the Employment and Social Service department is in charge of arrangements for unclaimed bodies. Services are funded by the Ontario Works program; graves are marked with numbered markers and recorded by the cemetery.

In terms of an unclaimed person’s estate, it is transferred to the Ontario government if no next of kin is found. Typically a portion of the estate will be used for funeral arrangements.

Introduction to the Korean Inheritance Law

Under the Korean inheritance law, the inheritance comes to fruition immediately when a person is deceased. The Korean inheritance law, the Part V of the Civil Act, provides who shall become the inheritor and beneficiary of the property of a deceased person, i.e. estate.

The inheritor and beneficiary, however, shall not always take everything from the estate. There are separate rules and restrictions on the distribution of the estate in South Korea.

In this article, we will explain to you the basic rules and practices of inheritance in Korea.

When Does the Korean Inheritance Law Apply

Before we dive into the Korean inheritance law, let’s find out in what situation the Korean inheritance law becomes the governing law in an international inheritance case.

Every jurisdiction has its own choice of law rules. Korea has it on the Act on Private International Law. According to the act, unless the deceased duly designated another country’s law by her valid will, the law of the deceased’s country becomes the governing law.

Also, it should be noted that the act recognizes renvoi. Renvoi is a subset of choice of law rules and its concept is prescribed in the Article 9 of the act as follows:

Article 9 (Renvoi in Case of Designation of Applicable Law) In case a foreign law is designated as an applicable law under this Act, when the law of South Korea shall be applied under the law of that foreign country, the law of South Korea (except the provisions of the law to designate the applicable law) shall govern.

In short, in intestate succession, when the deceased is not a Korean citizen, we should look to the choice of law rules of that foreign country. And if that country’s choice of law rules refers back to the law of Korea, the Korean inheritance law eventually becomes the governing law.

This is particularly relevant with regard to some countries whose choice or law rules deal with the estate differently according to whether it is an immovable property or movable property.

For example, in the United States, except as may be provided by law, the law of the deceased’s domicile applies to the inheritance of a movable (e.g. personal property). And the law of where the property is situated applies to the inheritance of an immovable (e.g. real estate).

Thus, when an American whose home state is New York dies in Korea without a will, the Korean court shall apply the Korean inheritance law with respect to his Korean bank accounts. And for the succession of a building in New York, the Korean court shall apply the New York intestate succession law.

Read more: Choice of Laws Is Critical When It Comes to an International Inheritance

Who Shall Become the Heirs and How to Distribute the Estate under the Korean Inheritance Law

The basic rule of the Korean inheritance law is that the property of the deceased is distributed according to his or her will. So, a person who is not categorized as an inheritor by law can become a beneficiary of the estate by the decedent’s will.

What if there is no valid will? The Korean inheritance law sets forth the rule of intestate succession. This rule of intestate succession names the beneficiary and the shares of each beneficiary for a distribution purpose.

According to the intestate succession rule, persons become beneficiaries in the following order.

Direct descendants (children or grandchildren) Direct ascendants (parents or grandparents) Siblings Relative within the 4th degree of collateral consanguinity

If there are multiple persons standing in the same rank, the closest in the degree of relationship shall have the priority. There could be multiple persons of the same rank and the same degree of relationship. In such a case, they become co-inheritors and co-beneficiaries. The shares of the co-beneficiaries are all equal.

If the child is adopted, it establishes a parental relationship and the child can inherit the adoptive parent. Can the adopted child inherit the birth parent? Please refer to our previous article on the inheritance right of the adopted child.

Surviving Spouse’s Inheritance Right and Share

The spouse has a unique position. If there are no relatives in the first and second rank, the spouse shall become the sole inheritor. If there is any inheritor(s) in the first or second rank, the spouse shall become the co-inheritor with that inheritor(s).

As to the share, Korean law provides more protection to the spouse. According to the Korean intestate succession rule, the spouse shall have 50% more share than those of other co-heirs.

For example, let’s assume a deceased was survive by a spouse, 2 children, and the parents. The 2 children and the spouse shall become the co-heirs. The parents can’t be an heir. The inheritance shares are 2/7 for each child and 3/7 for the spouse.

When a Parent or a Spouse Dies Before the Deceased

Korean Inheritance law acknowledges the succession per stirpes and lapse. This means, for example, that when a son dies before his parent, the son’s right to his parent’s estate as an intestate heir passes down to his son and wife.

What happens if the wife remarries after the death of the husband and before the death of the husband’s parent? As the remarriage disconnects the wife from the inheritance from his ex-husband, she cannot claim for a succession per stripes, either.

Calculation of Actual Share

Although it is clear that the Korean inheritance law prescribes each heir’s statutory share, the actual calculation of how much each heir shall take eventually is not a simple process.

That is because there could be some situations where one heir had received a gift with a significant value from the deceased during his lifetime. Also, one family member could have supported the deceased financially and/or physically.

In such a situation, distributing the estate only by the statutory share could be unfair. Here, the Korean inheritance law provides 2 legal mechanisms to mitigate the unfairness.

Special Contributory Share

If any heir had provided a deceased with a special contribution in taking care of the deceased or in maintaining/increasing the value of the estate, she can take some portion out of the estate over other heirs. We call it a special contribution share.

Basically, the Korean inheritance law leaves it to the heirs’ agreement to decide who shall have a special contributory share and how much. If such an agreement is unable to reach, the court will make a decision per the heir’s request.

Previously we wrote an article on this special contribution share. If you’re interested, please check on this article.

Special Benefit

If an heir had received any assets/money from the deceased as a gift when the deceased was alive, we call it a “special benefit”. The Korean inheritance law treats the special benefit as a prepayment of inheritance share. Thus, the court deducts the value of the special benefit from the heir’s inheritance share when calculating how much the heir can get from the estate.

It is very common in Korea that an heir receives a wide range of support from their old parents. Sometimes it could be cash, sometimes lands. It is the job of you and your lawyer to find out how much the Korean heir received the benefits.

Deceased Cannot Disinherit an Heir Entirely – Elective Share

As mentioned earlier, the rule of intestate succession only applies when there is no valid will. Does this mean the deceased can dispose of the estate freely by his own will?

The answer is not always. The Korean inheritance law recognizes an elective share, i.e. a statutory minimum share to the estate which is obliged to go to an inheritor. This is intended to protect the inheritor from being disinherited or left only a small portion of the estate.

Thanks to this rule, an inheritor may elect to receive the minimum statutory share despite what the deceased had written on the will. The decedent’s freedom to make a will is restricted by this elective share.

Currently, the elective share under Korean inheritance law is 50% of the intestate succession share that an inheritor would have received under the intestacy law.

So, in the above example, let’s further assume that the deceased had left a will that named his spouse as the sole beneficiary. Even in such a situation, the 2 children can still claim the elective share. The elective shares are 1/7 for each child.

How to Secure and Collect Your Inheritance Claim in Korea

Dividing the Estate among the Heirs

Under Korean inheritance law, the ownership of an estate is automatically transferred to the heir(s) upon the death of the deceased. When there are multiple heirs, the heirs come into a co-ownership status. This is done by the operation of law. Therefore, it does not require any further legal steps such as title registration.

Each heir can get out of a co-ownership and take a particular portion of the estate by his or her own property by making an agreement with other heirs or applying for a court order.

Filing a Suit When the Inheritance Right Was Infringed

If a non-heir holds an ownership of the estate or an heir took more portion of the estate than what is granted according to this legitimate share, it constitutes an infringement of inheritance right.

Common cases of inheritance infringement are as follows:

the deceased left a wife and child, but his brother took ownership of the estate. (The estate should be awarded to the wife and child)

the deceased left two children, but the elder brother took everything. (the elder brother is entitled to only 50% of the estate)

In this situation, the heir whose inheritance right is infringed can correct the infringement by filing a lawsuit. One this to note is that this kind of legal action must be filed within either (i) 3 years from the date when he found out the infringement or (ii) 10 years from the date when the infringement took place, whichever comes first.

When the claim is accepted, the court orders the infringer to return the property to the legitimate heir.

When the defendant refuses to perform his judgment liability, the general process of debt collection can be applicable.

Read More: Korean Lawyer Explains Debt Collections In South Korea – Overview

Transparency and Knowledge Are Essential in Dealing with Korean Heirs

Most of the inheritance disputes in Korea center on contesting the will and enforcing the elective share. (There are other issues such as a contributory share and a deductible special benefit. We will explain these important issues later with other posts)

We have seen many cases where the Korean heirs urge a non-Korean heir to hand over a certain legal document. They say that they need the document urgently in order to take care of the distribution and tax report. The problem is that they often do not fully disclose the situation of the estate and the foreign heir’s rights. They even provide false information about Korean law and practice. This could harm the transparency of the whole process of distribution. This also could cause a considerable financial loss to the foreign heir who is lack sufficient and reliable information on the Korean inheritance law.

Inheritance law is a complicated area of law in South Korea. Thus, It is a good idea to seek legal advice from a Korean inheritance lawyer before handing over any legal document.

FAQ

Korean Inheritance Law (based on 2022 Korean Civil Code)

Korean Inheritance Law – Wills in Korea

In a previous article, we talked about the legal effect of a will created in Korea by a foreigner and methods of creation recognized by Korean inheritance lawyers and the law.

This article examines the system from the perspective of a South Korean inheritance lawyer.

I. Cases when Korean law applies

Typical cases of when inheritance law will be applicable include cases when a foreigner’s parents still have Korean nationality, or when a foreigner obtained Korean nationality after having lived here for some time.

However, the Act on Private International Law has an interesting way of regulating this.

Article 49 (Inheritance) (1) Inheritance shall be governed by the law of nationality of the decedent at the time of death.

(2) When the decedent clearly designates, by the methods applicable to a will, one of the following laws as the applicable law, the inheritance shall be governed by the law irrespective of the provision of paragraph (1):

The law of the country where the habitual residence of the decedent is located at the time of the designation: Provided, that such designation shall be effective only if the decedent had maintained his/her habitual residence in the country until the time of his/her death; The law of the situs of real property with respect to the inheritance regarding the real property.

According to the article quoted above, South Korea’s inheritance law will apply if a foreigner complied with the rules regarding the 5 ‘methods of will’ and 1) resided in Korea at the moment of choosing the Korean law as the applicable one and was still residing in this country until the time of his or her death; or 2) did not reside in Korea, but had real estate on the territory of Korea.

There are almost no foreigners who are aware of this rule. If you reside in Korea or have real estate property here and wish the Korean inheritance law to apply to your legacy, you will have to specify, through one of the 5 ‘methods of will’ that the Korean law should apply to your inheritance.

II. How inherited property is distributed under South Korean law

If the Korean inheritance law does apply, the inheritance process will be regulated as follows, provided, that there is no will in place that could dictate otherwise. In the case there is a will, the inheritance process will, of course, follow the contents of the will.

1. Korean Inheritance Priority

The Korean Civil Act regulates the inheritance order as follows.

Article 1000 (Priority of Inheritance) (1) In inheritance, persons become inheritors in the following order:

Lineal descendants of the inheritee; Lineal ascendants of the inheritee; Brothers and sisters of the inheritee; Collateral blood relatives within the fourth degree of the inheritee.

Article 1003 (Order of Inheritance of Spouse) (1) If there exist such inheritors as provided in Article 1000 (1) 1 and 2, the spouse of the inheritee becomes a co-inheritor, in the same order as the said inheritor. If there exists no inheritor, the spouse becomes the sole inheritor.

For example, if Mike who has Jessie as the mother, Rose as the spouse, Hope and Wish as his children and who obtained Korean nationality and passed away without leaving a will, all his property will be inherited by Hope, Wish and Rose, and Jessie will not receive anything.

2. Korean Inheritance Shares

The Korean Civil Act regulates inheritance shares as follows.

Article 1009 (Statutory Share in Inheritance) (1) If there exist two or more inheritors in the same rank, their shares of the inheritance shall be equally divided.

(2) The share inherited by an inheritee’s surviving spouse shall be increased by 50 percent over the inherited share of the inheritee’s lineal descendant where the spouse inherits jointly with such descendants or 50 percent over the inherited share of the inheritee’s lineal ascendant where the spouse inherits jointly with such ascendants.

Based on the example in the previous paragraph, if Mike’s inheritance is $700,000, Rose will get $300,000 (=3/7 x 700,000), Hope and Wish will each get $200,000 (=2/7 x 700,000).

Get More Help from a Korean Inheritance Lawyer

The information above is the basics of the Korean inheritance law, however, when dealing with a real situation, it is recommended to seek a Korean inheritance lawyer. If you have any questions, you may leave your comments below or contact our office.

Also check out our article on the distribution of inheritance property and inheritance tax for more information.

Food and Agriculture Organization of the United Nations

The Civil Act, 1948 as amended in 2007:

In the absence of a will, the law prescribes the proportions inherited. First, the children and spouse inherit; they are entitled to one half of the estate. Children inherit an equal amount among themselves regardless of gender. In their absence, the spouse inherits, while one third is reserved for parents or siblings. If two or more co-heirs exist of the same rank, their shares are equally divided, but the portion inherited by the spouse is fifty percent greater than the portion inherited by the co-heirs. In the absence of brothers or sisters, the collateral blood relatives within the fourth degree of the deceased inherit (22).

Any person who is entitled to a reserved portion can demand to receive their inheritance by law (22).

Any person over the age of 16 can make a will using the methods prescribed by law. A will is invalid unless written in ways prescribed by law (22).

There are no restrictions on the age of heirs. A child who is not of legal age can inherit real property; however, if such property is registered in the name of the child, or sold, then a person with parental authority or a guardian must represent the child. Parental authority in respect of the child is vested in his/her parent. In the absence of a parent, or if the parent is not qualified to exercise his/her authority, the child must be represented by a guardian. A guardian may be appointed in a will, or by a parent exercising his/her authority among people who have a kinship with the child, or else a guardian may be appointed by the court (22).

In 2005, the Constitutional Court abolished the family headship system, whereby inheritance moved from male head of the household to his son, on the account of unconformity to the Constitution. This amendment to the Civil Law has gone into effect in January 2008 (13).

Family / Inheritance Law

Family relations and inheritance laws in Korea are the subject of frequent changes, mirroring the continuous changes that have been occurring in Korean society and culture. These changes include new legal principles applied to divorce disputes in accordance with the abolition of the crime of adultery, gender equality, new reduced sizes of families, lowered reliance on fault principles in judicial divorces, more equal property divisions between men and women in divorce, expansion of property rights, expansion of types of property subject to division in divorces, and changes in the way that inherited property may be divided.

These frequent changes and increased complexity in the law present challenges that require a high level of knowledge, experience and skill when addressing legal issues involving family and inheritance matters. Our legal professionals have the knowledge, skill and experience to guide our clients through these difficult issues and help them achieve their goals when dealing with these very stressful domestic relations and inheritance matters. We provide our clients with a full range of professional services covering the entire spectrum of family and inheritance law matters, including prevention and management of disputes involving family and inheritance affairs (including company succession planning), advising and negotiating at the early stages of disputes, and handling litigation matters where disputes cannot otherwise be resolved.

Services

Advise on divorce planning including division of property, child custody and support issues, tax ramifications, and other ancillary issues.

Negotiate divorce agreement terms and draft divorce agreements.

Represent clients in divorce litigation.

Advise and represent clients in adoption matters.

Advise and represent clients in competency matters and guardianships.

Advise on business succession planning.

Advise on estate planning and inheritance matters.

Advise and represent clients in family disputes.

Advise and represent clients in inheritance tax matters.

More information… Experience

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