• I want to consult a lawyer about end-of-life planning and inheritance issues in the Yaizu・Makinohara・Yoshida-cho・Omaezaki area
• I want to make a will leaving assets to my common-law wife, but what happens if she dies before I do?
• I want to have a lawyer prepare my will so that no problems will arise in the future.

Are you facing any of these issues in Yaizu, Makinohara, Omaezaki, Fujieda, Shimada, Yoshida Town, or other nearby areas?
At Yaizu Sogo Law Office, we offer a free first-time legal consultation on inheritance and estate matters. Consulting us once does not obligate you to retain us. We are also available on weekday evenings and on Saturdays. Please feel free to contact us by phone or email.

What Is a Bequest?

Giving property, after one's death, to a person who is not a statutory heir is called a "bequest." A common-law wife (husband), cousins, their children, and so on are not statutory heirs; therefore, if you wish to leave your property to any of these persons, you need to prepare a will that makes a bequest to them.

In legal terminology, the person who makes a bequest (the person who gives the property) is called the "legator," while, in contrast, the person who receives the bequest (the person who gets the property) is called the "legatee."

Points to Note

It is very often misunderstood that "a common-law wife (husband) naturally has a right to inherit," but unless an adoption or the like has taken place, the partner can never become a statutory heir.

Therefore, if you wish to leave property to a common-law spouse, a bequest by will is the only way to do so.

What happens if the legatee dies first?

Now, suppose that you have made a will bequeathing your property to your common-law wife (husband), but that she (he) dies before you — what happens to the validity of the will you made?

To state the conclusion first: the bequest you left, "bequeathing to my common-law wife (husband)," never becomes effective, and the property that was to be bequeathed is acquired by "your statutory heirs." This is a rule clearly provided for in the Civil Code (Article 994(1) and Article 995, main clause).

To repeat: it is not the statutory heirs "of the common-law wife (husband)" who acquire the property; it is "your" statutory heirs who acquire it. For example, even if the common-law wife (husband) has a child (whom you have not formally adopted), note that the child has no right whatsoever to acquire the property.

Practical Points

• Many people mistakenly believe that "if the common-law wife dies, her child receives the property in her place"
• In practice, there are also many cases where the property goes to your brothers and sisters, nieces and nephews, and so on
• This can also cause serious disputes between the relatives on the common-law spouse's side and the statutory heirs

(Lapse of a Bequest Due to the Death of the Legatee)
Article 994 A bequest shall not become effective if the legatee dies before the testator.
(Devolution of Property Where a Bequest Is Void or Lapses)
Article 995 Where a bequest does not become effective, or loses its effect by renunciation, the property that the legatee was to receive shall devolve upon the heirs; provided, however, that if the testator has expressed any other intent in the will, such intent shall prevail.

A "substitute bequest" makes it possible to prepare for the case where the legatee dies first

If you have a second-choice person to whom you would like to leave your property in case the legatee dies before you, you can prepare for the case where your first choice cannot be fulfilled by including the second-choice bequest in your will. This is called a "substitute bequest."

For example, in the case above, if you wish to leave property to the child of your common-law wife (husband), you can include bequest language such as: "If my common-law wife (husband) ●● dies before me or at the same time as me, I bequeath all of my property to her child ■■." Then the property will be acquired not by your statutory heirs but by the child of your common-law wife (husband) (Article 995, proviso, of the Civil Code).

A will that does not contain a "substitute bequest" has the fatal flaw that "the moment the legatee dies first, that part of the will becomes completely meaningless." Therefore, if you have a second-choice bequest in mind, you must always include a "substitute bequest."

Concrete Examples of Substitute Bequests

• "If my wife dies first, all of my property shall go to our eldest son."
• "If my child dies first, to my grandchild."
• "If my common-law spouse dies first, to a welfare organization."

and so on — flexible planning is possible according to your life plan.

Summary

As shown above, depending on the contents of the will you make, there is a real possibility that a person you never expected will acquire your property. When preparing a will, therefore, you need to think through the various possible cases and problems before drafting it.

In particular, if

• you are in a common-law relationship
• you have remarried and there is a child from the previous marriage
• you have no children
• your family relationships are complicated

then a will without a substitute bequest will almost certainly become a source of trouble.

Although a will can be prepared without a lawyer's involvement, a lawyer's advice is useful in order to prevent trouble after your death. Consulting a lawyer often clears up vague worries and anxieties. If you are looking for a lawyer in Yaizu, Makinohara, Yoshida-cho, or Omaezaki, please feel free to consult the Yaizu Sogo Law Office.

Frequently Asked Questions

For Your Inheritance Concerns, Consult Yaizu Sogo Law Office

Yaizu Sogo Law Office handles a wide range of inheritance-related matters, including the drafting and execution of wills, renunciation of inheritance, division of estate, and claims for reduction of the statutory reserved share (iryubun).

Inheritance disputes are so notorious for the intense emotional conflict they stir up among heirs — hence their nickname, the "inheritance war" — that disputes can drag on for a long time. This is why consulting a lawyer offers significant benefits.

If you are facing an inheritance issue, please feel free to consult us. The first consultation on inheritance matters is free of charge.

At Yaizu Sogo Law Office, consultations are available not only during weekday daytime hours but also on weekday evenings and on Saturdays. Please call or email us first to make an appointment for a legal consultation.

Are You Troubled by an Inheritance Issue?

• Creating a Will for End-of-Life Planning
• Disputes over How to Divide an Estate (Estate Division)
• Claiming Your Reserved Share of an Estate (Claim for Infringement of Legally Reserved Portion)
• A Family Member Passed Away Leaving Debts Behind (Renunciation of Inheritance)
• Dissatisfied with the Contents of a Will
• Dividing an Inheritance
• What You Need to Know About Filing for Custody of a Holographic Will
• Wills That Bequeath Property Exceeding the Statutory Share of Inheritance to a Specific Heir
• Finding Out Which Court Handles Inheritance Division Mediation
• About the Process of Creating a Notarized Will
• I found a will, but is it all right to open it? (Inspection of a will)
• The Validity of a Will When the Intended Recipient (Legatee) Dies First
• I want to know about the cost of preparing a notarized will
• Can an Estate Division Different from the Will Be Made?
• I want to know what can be specified in a will
• Requirements for a Self-Written Will (Holographic Will)
• I want to correct an error in a handwritten will I made previously
• About the Executor of a Will
• How Life Insurance Proceeds Are Treated in an Inheritance Division Agreement Where the Beneficiary Is Designated as an Heir
• If I renounce my inheritance, who will manage the family grave?
• Want the State to take over inherited land (the Inherited Land National Attribution System)
• Do You Inherit Debts Even After Years of No Contact with Your Parents?

See all articles on inheritance