Notarized will: the pros and cons
It’s no secret that we at the Legacy Tomodachi team highly recommend creating a will.
If you’re an expat in Japan, you’ve likely already had your fair share of experiences with Japanese bureaucracy. Making a will is going to help out your heirs if they’re scattered all across the world, and especially if they don’t speak Japanese.
It’s common sense that making a will is a good idea, but in Japan there are multiple options, which tends to cause confusion.
If you ask us, we will tell you that you should specifically make a notarized will.
In Japan there are three main different types of valid wills: holographic will, will by notarized document and a secret certificate will.
- Holographic will: must be handwritten by the decedent and cannot be typed out. There are strict requirements for this type of will which may be overlooked by the testator (the person writing the will).
- Notarized will: a will that has been witnessed and certified by a notary public.
- Secret certificate will: a will that made known to a notary public and witnesses, but they don’t know its contents or keep it safe.
- It will be valid
Because a notary public, confirms the contents of a notarized will and certifies it, there is no doubt that it’s valid. In the case of the other types of wills, those who aren’t professionals won’t know for sure if it’s valid. Your heirs could have gone through the whole court process and finally taken the will to the bank to release your funds and then the bank could at that point say “sorry but we need additional documents”.
In other words, without a notarized will, there is a risk of your last will and testament being deemed invalid after your death. This will lead to your estate being distributed based on legal succession, and in doing so complicate the process for your loved ones.
- It won’t be lost
When you create a will by notarized document, the notary public actually stores an original copy in their office. Since it is kept safe and accounted for, there is no need for heirs to search for the will and no worry of it being lost or damaged.
- It can’t be forged
Again, the original is kept by a third party, a notary public, who stamps it with their own individual stamp. This means that it’s guaranteed that no forgery will pass as the real thing. This is a concern for holographic wills where witnesses aren’t required and only a stamp is needed.
- You can leave it to the experts
If you choose to write a holographic will, you have to write the whole thing by hand. As I mentioned above, you also have to follow a number of rules. If you aren’t careful, all your effort could go to waste in the end if the will is invalid as per the Civil Code. On the other hand, if you opt for a notarized will all you need to do is tell the professionals what you want and be there for the signing.
- The heirs won’t have to go to court
Perhaps the main reason why to consider making a notarized will: since the notarized will is already validated by the notary public, there is no need to go to the family court.
This means the heirs or executor can move straight away to release funds and transfer the ownership of properties. Your family will be able to avoid the tricky business of preparing documentation for inheriting your estate.
This makes life a lot easier for any heirs who would already be going a difficult time upon your death, especially if they’re living outside of Japan.
- It avoids arguments amongst heirs
If you don’t leave behind a will, your statutory heirs may inherit a legally determined portion of your estate. Those legally determined heirs can discuss and agree to who gets what through a process of estate division.
However, reaching an agreement may be harder than it sounds, often with arguments breaking out amongst the legal heirs. There are cases where the inheritance can’t be settled because the heirs won’t come to an agreement and that means it must be taken to court or the inheritance will never be processed. Leaving a will that you are sure is valid will prevent your loved ones from facing this situation.
- You have to pay
Creating a notarized will is a legal service and costs money. Notary publics charge a fee based on the value of the assets included in the will. Interpretation and executor services are also available but come with an additional cost to consider.
- The contents of your will will be revealed
Notarized wills require two witnesses. Our firm provides witnesses, and if interpretation is required then an interpreter will also be present. These participants, as well as the notary public, will all be privy to the content of the will. However, both notary publics and judicial scriveners have a duty of confidentiality.
Making a notarized will
Our team is experienced in making notarized wills for both foreign and Japanese clients so let me give you a simple rundown of the process. For a foreigner it goes like this:
- Initial consultation where we discuss your assets and how you would like to distribute amongst your heirs to determine what should be included in the will.
- Create a draft will in English for your approval.
- Translate the will into Japanese for submission to the notary public. *The operating language of the document has to be Japanese.
- Notarize the will before a licensed Japanese notary public. We will make an appointment with a notary public to notarize the will. Our team can take care of the discussions with the notary public on your behalf and will provide two witnesses, and an interpreter in the case that you need assistance with Japanese.
As you can see, the process is actually quite simple and usually doesn’t take much time.
We strongly recommend making a notarized will if you are looking at an international inheritance situation upon your death, especially if you own real estate in Japan.
Although there is the cost to consider, it may be worth it to guarantee that the period after your death won’t be made even more difficult for your loved ones.
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