• I want to consult a lawyer about end-of-life planning and inheritance in the areas around Yaizu, Makinohara, Yoshida-cho, and Omaezaki.
• I want to know whether an estate division different from the will can be made.
• The heirs have settled on an estate division, but a will whose terms differ from it has been found.

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.

It Is Possible to Make an Estate Division Different from the Will

Where the deceased (the decedent) has specified the proportions or method of the estate division in a will, the usual practice is to respect the decedent's wishes and carry out the division accordingly.

That said, dividing the estate exactly as provided in the will the decedent left behind may in some cases go against the heirs' wishes or work to their disadvantage.

For example, suppose Mr. A has died, leaving real properties (Property X and Property Y) as his estate. There are two heirs, Mr. B and Mr. C. Mr. B hoped to acquire Property X and Mr. C hoped to acquire Property Y, but just as they were about to divide the estate that way, a will of Mr. A was discovered providing that "Property Y shall devolve to Mr. B, and Property X to Mr. C." Mr. A's will is not the way Mr. B and Mr. C hoped to divide the estate, but is there no alternative but to divide the estate in accordance with the will?

In conclusion, an estate division different from the will can be made where certain conditions are satisfied. What conditions must be satisfied is explained in detail below.

Practical Points

• Many people are unaware that a will is not "absolute"
• In practice, even where a will exists, a different way of dividing the estate is adopted in many cases
• However, if even one condition is lacking, a different estate division cannot be made

Cases Where an Estate Division Different from the Will Is Possible

To make an estate division different from the will, the following conditions must be satisfied.

• ①The estate division is not prohibited by the will
• ②All of the heirs have agreed on the estate division
• ③The consent of the executor has been obtained (where there is an executor)
• ④The consent of the legatee has been obtained (where there is a legatee)

The following explains items ① through ④ above.

①The estate division is not prohibited by the will

The decedent (testator) may provide in a will for a period not exceeding five years from death and prohibit division of the estate during that period (Article 908(1) of the Civil Code).

Accordingly, as a precondition to making an estate division different from the will, it is necessary to check whether the will contains a provision prohibiting division of the estate.

Practical Points

• If the will states "division is prohibited for 〇 years," no different division can be made during that period
• If you proceed without noticing this provision, the division agreement itself may subsequently become invalid

②All of the heirs have agreed on the estate division

As with an ordinary estate division, "all" of the heirs must agree to an estate division whose contents differ from the will. If the consent of all cannot be obtained, unfortunately there is no alternative but to proceed exactly in accordance with the will.

Those who wish to learn more about estate division agreements should see the articles "Disputes over How to Divide the Estate (Estate Division)" and "I Want to Divide the Estate."

Practical Points

• If even one person objects, a division different from the will cannot be made
• "Vague consent" and "oral promises" are not enough; a written agreement is essential

③The consent of the executor has been obtained (where there is an executor)

Where the will appoints an executor and the executor is a person other than an heir, the executor's consent must be obtained.

An executor, put simply, is a person who performs the procedures necessary to realize the contents of the will (transfer registration, termination of bank accounts and changes of name, and the like). Where there is an executor, heirs are deemed prohibited from disposing of property or performing any other act that would obstruct the execution of the will (Article 1013(1) of the Civil Code), and for this reason the executor's consent must be obtained.

Many people assume that "the consent of all the heirs is enough," but in practice, if the executor objects, an estate division with contents different from the will cannot be made.

④The consent of the legatee has been obtained (where there is a legatee)

Where the will includes a provision gifting estate assets to a person other than an heir (a legatee), the legatee's consent must be obtained.

The procedures after obtaining the legatee's consent differ between the case of a general bequest and the case of a specific bequest (for details, please consult a lawyer).

Practical Points

• Where the legatee is elderly, has dementia, or cannot be located, there are cases in which a different division becomes impossible in practice
• If the legatee does not consent, in principle there is no alternative but to proceed in accordance with the will

Points to Note When Making an Estate Division Different from the Will

• Financial institutions and the Legal Affairs Bureau scrutinize "divisions different from the will" very strictly
• If the formats of the consent form or the estate division agreement are defective, registration or the closing of bank accounts may be stopped
• Note that the tax treatment (the acquirer and the method of filing) also differs from the case where the division follows the will (for details on tax matters, please consult a tax accountant)

Summary

The foregoing are the conditions under which an estate division different from the will can be made; please use them as a reference.

An estate division different from the will is also a very high-risk procedure: "it becomes invalid if even one requirement is missed" and "it cannot be redone later."

In proceeding with an estate division, coordination and consultation among the heirs and specialized knowledge are indispensable. Those who are unsure how to proceed with an estate division agreement should first feel free to consult the Yaizu General 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