Estate Planning and Creating a Will in Japan (Part 1)
Written by Catherine O’Connell
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If you are living in Japan as a foreigner and have property in Japan (bank accounts, real estate etc.), it’s easy to get on with the daily grind and forget about what the situation will look like if you suddenly have an accident and become incapacitated or worse, you pass away.
Have you taken the time to think about what the people left behind will have to deal with?
What can you do to make things as smooth as possible for them while you are alive?
With a bit of effort and time devoted to this now, you can save your loved ones a bit of the heartache down the road.
This article is divided into two parts.
In Part 1, we look at the general situation regarding creating a will in Japan and the preparation you need to do before you see a lawyer in Japan to prepare your will.
Part 2 is an update on laws that surround real estate in particular and processes that can be done online. The latter change is a silver lining of the pandemic and the former, is due to “the straw breaking the camel’s back”, for authorities looking for a way to help them to track down non-registered real estate (land & buildings) and making it mandatory for registration of real estate.
Note about this article: This article is prepared by two ACCJ Members Sanae Sekiya and Catherine O’Connell who are both SME’s and members of ACCJ’s Legal Services & IP Committee. As a foreign lawyer in Japan Catherine is not able to provide legal advice on these wills/estates/real estate matters so she collaborated with Sanae, who is able to advise, and to formulate this intel for the benefit of ACCJ members.
Part 1 – Estate Planning & Creating a Will in Japan
Estate planning is a “necessary evil” and death is a fact of life, and it is particularly important when you are not living in your home country and you hold assets overseas, such as in Japan. Without a will, it can be very difficult for the heirs of foreigners in Japan to access assets, even money from bank accounts, so creating a Japanese will is said to be advisable in order to ease the process of dealing with the Japanese procedures concerning your assets when you decease.
Co-author of this article, Sanae Sekiya of Tri-Star Legal Office, has provided a a quick-reference checklist to get you thinking about what you will need to prepare when visiting a legal expert to set up a will or power of attorney in Japan.
Please note that this checklist and the content of this Article are not legal advice but presented for educational & informational purposes only. There are special cases/exceptions to the rules in this area of law, so the objective of this Article is simply to provide information for long-term non-Japanese residents in Japan, so that this can be a prompt to guide you on the next steps to take.
Who can I ask to make me a Will in Japan? In Japan the drafting and preparation of Wills and estate planning/succession falls into the purview of the Gyoseishoshi (行政書士) Administrative lawyer and Bengoshi (弁護士) Japanese lawyers, can also do this work.
What should I prepare before visiting a Gyoseishoshi lawyer to make my will? The steps to follow in order to make your will in Japan are set out below. Note that the will, will become a “Notarial Deed” which means it is a special form of a public document, drafted by and attested to by a Notary Public (“Koshonin”), and which states the content of a particular "legal action" (in this case, the "legal action" means "the contents of a will") and it generally constitutes a security measure to protect the contents of the legal action (the will in this case.)
The following steps are based on the condition that your will has been prepared by a legal expert, through individual consultation taking into account your specific situation, which will vary in each case:
- Make a list of your property (real estate, financial assets, physical assets). Have copies of these documents ready for reference when you meet with the legal expert
- Make a list of the beneficiaries for your estate. These are the people to whom you wish to give your assets to upon your demise
- Fill in the separate form called “Information to be described in your Will” You can obtain this from Sanae Sekiya, and a summary is listed below for quick reference:
“Information to be described in your Will” a. Your Name, date of birth, occupation, address and nationality b. Presumed Heirs list | Beneficiaries list | Executors list |and their dates of birth, occupation, address and nationality c. Property: real estate | financial assets | other movable property (non-exhaustive) d. Directions on how you would like your assets disposed of
- Collect the relevant certification documents issued from public offices. These include: your residence certificate, your registered seal certificate (if any), and your family register for your Japanese family (if applicable)
What happens at the Gyoseishoshi's office and Notary Public’s office?
- At the time of your appointment with the Gyoseishoshi lawyer, based on the information you provided the Gyoseishoshi lawyer prepares a draft of your will in Japanese. Then, you will confirm the description in the draft (will). The draft will then be officially prepared by a Notary Public of Japan and you will visit the office of a Notary Public along with the Gyoseishoshi where you will confirm the final version of your will. You need to make an appointment with the Notary Public Office and the Notary Public will make the Notarial Deed, of your will as referred to above.
- When you appear at the appointed time at the Notary Public’s office there must be two witnesses who have nothing to do with your will (i.e., are not beneficiaries). The Gyoseishoshi can make the appointment for you, the testator. A Gyoseishoshi who prepares the draft, such as Sanae Sekiya who co-authored this article, can and usually do, serve as translator if the testator is not so proficient in the Japanese language and also where the testator is capable in Japanese. The Gyoseishoshi, such as Sanae-san in this case, can serve as one of the witnesses. The Notary Public will read out the contents of your will to you to ensure it is correct.
- Once the Notary Public has read all of the description (content) in your will to you, you will then sign and seal the documents in front of the Notary Public as an acknowledgement. This is followed by the signatures and seals of the two witnesses.
- The Notary Public will make two originals of the Notary Deed. One original is for the executor and the testator (you) and one is to be kept at the Notary Public’s office. You may request certified copies of the Notary Deed as needed during your lifetime, and typically a testator keeps a certified copy rather than an original, because the Executor keeps an original.
- Although your will is valid in Japan and your will is executed according to the description of the Japanese language original, you may have the Will translated in English (optional) for an extra fee.
It may be useful for readers to know that as a matter of immigration procedure in Japan, Japan acknowledges only married couples as legal spouses of each other. Therefore, Sanae Sekiya suggests that making a will works well for those unmarried couple/same-sex couples who wish to deal with their estates. This is so, even if the testator's home country or jurisdiction acknowledges unmarried couples/same-sex couples, because the surviving partner needs to show evidence or provide a legal explanation and proof of the testator's country. This process usually requires the assistance of a legal professional of that country to dispose of the deceased's property located in Japan (bank accounts, shares, real estate under the name of the deceased), and so having a will can help with this process.
What are the costs involved to prepare a notarial deed (will) in Japan? Costs will differ per person depending on the particuar person's situation, their assets and the value & contents of the will. You can obtain an estimate of lawyer’s fees and other administrative charges, before asking a Gyoseishoshi to do this work. In general, here are some average costs which are a guide only:
- Draft of will in Japanese: the cost depends on the length of the will and contents and also very much depending on the extent to which Japanese language support is required by the testator (you). Costs may also vary if you are seeking out help from a specialist in a large firm or a someone in a smaller boutique firm. Therefore, as it is difficult to provide accurate estimates of costs for the purposes of this Article, we recommend you contact a Bengoshi or Gyoseishoshi to establish what the fee would be in your particular situation.
- Witness remuneration: Generally starting from around JPY 11,000 per witness but this depends on the location of the witness. The Gyoseishoshi who does the drafting, more often than not is also a translator and charges for that fee. The drafting Gyoseishoshi can normally arrange two other Gyoseishoshi lawyers to serve as witnesses where needed. Note that Gyoseishoshi are subject to confidentiality obligations for any information they draft or witness, etc.
- Translator: this depends on the case but a specialist translator can be arranged by the Gyoseishoshi (or bengoshi) who did the drafting if requested, and an estimate can be provided.
- Other expenses: these may apply so you need to confirm these. For example, if you choose a Notary Public that is some distance from the Gyoseishoshi’s office then the Gyoseishoshi may charge a daily allowance and charge their travel expenses, which are allowable expenses
- Notary fee: the fees are set out on the Japan National Notaries Association’s website. In summary, the fees will differ depending on the total value of the assets you have. For example, for assets under JPY 1 million, the Notary Fee may be as little as JPY 5,000 yen but for assets of JPY 1 billion, the fee may range up to JPY 250,000 with an additional fee of JPY 8,000 per 50 million value of assets.
What else do I need to know? There are other services that the Gyoseishoshi can arrange at additional fees, for example the matters that are to be performed after decease of the testator (you). Without wishing to get too technical, for the purposes of information in this Article, for estate succession (“Soozoku” or ”相続”) the Gyoseishoshi lawyer prepares the documentation for transfer of ownership or bank accounts closure, but the actual work in registration of real estate and company (registered under the name of the deceased) is handled by another type of lawyer called “Shihoshoshi” (Judicial Scriveners) on an as-needed basis. Note that there may be some other processes in estate planning and succession that may also involve Shihoshoshi, and this is due to the division of work amongst lawyers in Japan in accordance with the regulations.
Work processes after decease of the testator include:
- Reporting the death to the public office Applying for a cremation/burial plot
- Changing the name of the householder or name on leased apartment/house and change of name on motor vehicle registration/disposal of vehicle and mobile phone
- Returning the deceased’s documents to the public office such as driver’s license, national health insurance card (after claiming the burial fee from insurance)
- Payment of outstanding amounts to the hospital/nursing care institution and payment of utility bills etc.
- Closing of bank account and transfer of shares/bonds; cancellation of passport and credit cards, and memberships
- Filing of final tax return and payment of outstanding tax (including inheritance tax)
- Arrangement of funeral service and family memorial service/gathering and performance of the service (“Eitaikuyo”)
- Arrangement of gravestone/tree burial/scattering of ashes/keeping of ashes at home
Shihoshoshi, Gyoseishoshi and Bengoshi – what are the basic differences between these kinds of lawyers in general and in this Estates law area? Shihoshoshi can prepare wills under a condition that the testator's property includes real estate, because registration of real estate is the main duty/role of the Shihoshoshi’s work as a professional. You need to verify the best person to draft your will at the outset and asking a Gyoseishoshi or Bengoshi at the first stage is a wise approach. Gyoseishoshi are basically referred to as “document specialists”. They create and prepare documents that are to be submitted to public offices and government offices or relate to certain rights and obligations or that need factual certification. According to the Bar Association, Bengoshi can provide consultation on wills, as Gyoseishoshi may lack the (required full) legal judgement as they are a document specialist. Further, the Bar website says “Shihoshoshi cannot provide consultation on wills.” If there is the possibility of a dispute or conflict among any of the stakeholders (beneficiaries under the will) then the rules say that bengoshi should handle the work. Therefore, the three Japanese lawyer professions work in unison dividing up the work according to what they are permitted to do under the regulations.
Pulling It All Together
As you can see from this information there is a lot involved in preparing an estate plan but the important thing is to take the first step and make a start on the estate planning journey. Getting over the finish line takes some time and effort but will bring peace of mind to you knowing things are as settled as they can be in the event of your death. The explanation in this Article by no means covers the details and rules that govern estate proceedures or the rules that govern the various lawyers in the ecosystem in Japan, but this Article is intended to provide the reader with general information on the legal landscape in this complicated area of estate planning and estate succession, to bring you to a starting point for commencing your estate planning procedures and to empower you with more information and confidence to consult with a legal expert in this area of the law.
