Making a will

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Although a number of special cases exist, there are three basic types of will in Japan:

  1. The notarized will (kousei shousho igon 公正証書遺言)
  2. The holograph will (jihitsu shousho igon 自筆証書遺言)
  3. The sealed-content notarized will (himitsu shousho igon 秘密証書遺言).[1]

The notarized will

The notarized will[2] is a will submitted to a notary office (koushou yakuba 公証役場) for official validation. It is the most cumbersome and expensive of the three types described here, but also the one least likely to give rise to legal problems. First, a draft is typically prepared by a legal scrivener (shihou shoshi 司法書士), an administrative scrivener (gyousei shoshi 行政書士), or a lawyer (bengoshi 弁護士). This draft is reviewed by a notary at the notary office to ensure compliance with proper wording and format, which may require more than one meeting but which a scrivener or lawyer can handle without involving the testator. An appointment is made for the execution of the will, and on the appointed day the notary has the testator confirm the contents orally before reading the entire document aloud in the presence of the testator and two third-party witnesses (silent reading sometimes takes place instead). Any last-minute corrections can still be incorporated at this point. The document is then signed and stamped by the testator and the witnesses. The notary affixes his or her own signature and seal, completing the validation process: the will has been executed.[3] The original document is kept on file at the notary office, and the testator receives a primary certified copy (seihon 正本) and a secondary certified copy (touhon 謄本) for his or her personal records. In practice, the primary certified copy is often kept by the executor of the will, and the testator keeps the secondary certified copy, notifying beneficiaries of the will's existence. (Only secondary certified copies can subsequently be obtained from the notary office, but otherwise it appears that no particular legal distinction is observed.)

The testator's estate can now be administered without probate, as there should be no legal issues regarding content, format, or possible tampering (bearing in mind that challenges can still be raised under certain circumstances). The notarization fee depends on the value of the assets involved, ranging from ¥5,000 for assets under ¥1 million to a minimum of ¥249,000 for assets above the ¥1 billion mark. A basic notarization charge of ¥11,000 also applies if the value of the estate is below ¥100 million. Scriveners charge a minimum of about ¥70,000 for their services, which may or may not include arranging for witnesses (the notary office can also often arrange for witnesses, and testators can provide their own witnesses as long as the witnesses are not immediate family members or minors). A lawyer's fees are likely to be higher. Most testators who rely on a scrivener to prepare this sort of will can probably expect to pay an inclusive total of between ¥120,000 to ¥150,000 (see this Japanese site for a detailed description of the relevant fees).

The holograph will

A holograph will involves writing a will by hand. No legal specifications exist for the correct form of this type of will. The testator can, in fact, simply write out the text at home in ink on paper and make sure that beneficiaries know where to find it. The will must be signed, and the testator's personal seal must be affixed. The will should be dated for the sake of clarity, but attaching a date is not a legal requirement. Since 2019, it has become possible to print out a list of assets to be bequeathed rather than write out everything by hand, as long as one's signature and personal seal are affixed to each page. Upon death, the will must submitted to a family court (katei saibansho 家庭裁判所) for probate (kennin 検認), a process that usually takes about a month but can go on for much longer. The law stipulates that the finder(s) of the will may not read it before it is submitted to the family court, so online sites typically advise sealing the will in an envelope, but an unsealed will is still considered valid. Minor issues of form and orthography also do not necessarily invalidate the will, and pencil is also acceptable, although more subject to challenge due to possible tampering. The will can be amended or corrected as long as the proper procedure is followed, and a superseding will can be composed at any time (in the case of multiple wills, the most recently dated one will be considered valid). The cost of preparing such a will is negligible.

Recognizing that preparing a notarized will is time-consuming and expensive (especially if a superseding will is written) and that holograph wills involve uncertainty over validity and possible misplacement, the Japanese government in 2020 made it possible for individuals to compose a handwritten will that, for a modest fee (¥3,900 in 2022), can be filed with the legal-affairs bureau with jurisdiction over the testator's domicile. This system goes by the name Jihitsu Shousho Igonsho Hokan Seido (自筆証書遺言書保管制度), and is described at a Japanese website maintained by the Ministry of Justice. The will must follow a prescribed format (margins, for instance, must be set so that the text is not obscured by binding), but printed lists of assets can be attached and no witnesses are required. The testator can, of course, hire a scrivener or lawyer to help prepare the text of the will. Since the will is kept on file at a government office, the estate can be settled without the need for probate, another key advantage. The government has even produced a detailed guide to writing such wills (Japanese, PDF), so it is surprising that more people do not seem to be taking advantage of the system, the relative convenience of which is undeniable. Various fees are imposed for viewing and obtaining copies of the will, and for deregistering it if a superseding will is made. A reservation with the legal-affairs bureau must be made to file this type of will.

The sealed-content notarized will

This type of will[4] is something of a hybrid in that its existence is registered with a notary office, but the document itself remains in the possession of the testator (or executor), with the contents not subject to review by anyone else. The chief advantages, besides privacy, are that the the cost of notarization is low (¥11,000) and the existence of the will is officially recorded, reducing the possibility of accidental loss, especially if the executor rather than the testator keeps the will on file. A further advantage is that the body of the will can be printed out rather than written by hand. The usefulness of this type of will is limited, however, because witnesses to notarization and family-court probate are both mandatory and because misplacement is still a possibility, issues that have been resolved with the introduction of the Jihitsu Shousho Igonsho Hokan Seido. As a result, this type of will is not very common (one online Japanese site estimates that only about 100 are filed annually, as opposed to 110,000 notarized wills).

Wills in languages other than Japanese

All three types of will described above can be composed in languages other than Japanese. However, the following considerations apply:

  • For notarized wills, a Japanese translation must be provided. The Japanese version, also signed by the translator, becomes the valid document. The translator should be present at the time of notarization to sign the will (and, unlike relatives, can be present during the actual notarization process to serve as interpreter).
  • Holograph wills written in languages other than Japanese are considered valid in Japan, although they may be more readily subject to challenge than Japanese-language wills. Care must be taken to affix one's personal seal and signature to each page, and dating the will is advisable. A holograph will that is filed with the legal-affairs bureau must be accompanied by a Japanese translation.
  • For sealed-content notarized wills, the testator and witnesses must be judged competent by the notary, which means that Japanese-language ability is necessary (being accompanied by an interpreter at the time of notarization can satisfy this requirement).

Settling the estate

Actually settling the estate according to the terms of the will, including dealing with inheritance tax, can be an expensive and time-consuming process, the cost of which varies according to the value of the estate. It is quite common for a named executor to rely upon specialists (most often scriveners and/or tax accountants) to carry out the terms of the will and handle inheritance-tax issues. One online Japanese site advertises a minimum basic fee of ¥250,000 to administer an estate valued at up to ¥50 million, not including property transfers, securities-account transfers, or multiple beneficiaries, which could easily add another ¥300,000 to the total. For those with an estate subject to inheritance tax, fees can be in excess of ¥1 million. Having a will in place, however, is the best assurance that the necessary procedures can be carried out with a minimum of trouble.

Considerations for foreign nationals

According to the Japanese government, non-Japanese citizens in Japan have their estate dealt with under the law of their 'home country'. Other countries may have similar regulations. The safest approach would seem to be to make as simple a provision in both countries as possible.

See also

Footnotes

  1. Technically speaking, the word "igon" (遺言) refers to the expression of one's last wishes in accordance with procedures established by law. The physical document recording those wishes is called an "igonsho" (遺言書). It is a subtle distinction, often blurred, but one that should be kept in mind. The reading "yuigon" is also frequently used for the compound 遺言 -- and in a similar sense -- but "igon" is the preferred term when referring to expressions of last wishes that are legally binding.
  2. The term "notarial deed will" is sometimes found on English-language websites to refer to kousei shousho igon, but this attempt at literalness has nothing to recommend it over the more idiomatic "notarized will" (it is, in fact, rather confusing and leads to inconsistency in treatment).
  3. Note that the phrase "execute a will" is often used colloquially in English to refer to settling an estate (no doubt because the term "executor" is used to refer to the person charged with that duty), but technically speaking, "execute a will" simply means signing the will in accordance with law. Once a will has been executed, it is legally valid. After the testator's death, the executor "administers the estate" or "settles the estate" or "winds up the estate."
  4. The more literal translation "secret will" for "himitsu shousho igon" will often be found on relevant English-language sites, but that rendering invites misunderstanding because making the existence of the will a matter of public record is precisely the purpose: the contents remain secret while the existence of the will is officially acknowledged through notarization.