Under the Korean inheritance law, the inheritance comes to fruition immediately when a person is deceased. The Korean inheritance law, the part V of Civil Act, provides who shall become the inheritor and beneficiary of the property of a deceased person, i.e. estate.
The inheritor and beneficiary, however, shall not always take everything from the estate. There are separate rules and restrictions on the distribution of the estate in South Korea.
In this article, we will explain to you the basic rules and practices of inheritance in Korea.
Globalization has brought a unique situation to our assets management. Your asset portfolio is diversified. Now you live in New York, but you own a condominium in Seoul at the same time. Having a bank account and stocks in Korea is very common for expats and people who have family in Korea. You should manage them while you live each and every day. And you should also have an estate plan in place regarding how your foreign assets shall be managed and distributed to your loved ones when you pass away.
Every jurisdiction has its own laws and procedures to govern the decedent’s assets located within its territory. Thus, having an estate plan pursuant to the New York Law does not guarantee that your wishes and priorities in the estate plan shall be honored in a foreign country. That’s why you need to set up a foreign estate plan according to the relevant foreign law.
In this article, our Korean estate planning lawyer explains the basics of estate planning in Korea. We will discuss typical instruments under Korean law that you can make use of: a will, a living trust, and a power of attorney.
“I am an adoptee from South Korea to the U.S. Currently I live in the U.S. Recently I found my biological parents died in South Korea. He is survived by his wife and 2 sons. He had businesses in Korea. Can an adopted child inherit from biological parents in Korea? I have never met or spoken to his wife and sons and so I don’t know if he had a will written. What are my inheritance rights under Korean law?”
Everything Boils Down to Whether it is Full Adoption or Simple Adoption
A legal child is entitled to inheritance from his/her deceased parent. When the child is adopted, some jurisdictions treat the adoption as disconnecting the legal relationship with the biological parent, and some jurisdictions don’t. We call the former as a full adoption and the latter as a simple adoption.
As you can understand from the general idea of inheritance, an adopted child can inherit from biological parents in Korea only when the adoption is regarded as (more…)
I am a U.S. citizen. I currently have a very complicated inheritance case in South Korea. My father passed away 10 years ago in the U.S. and his two Korean half brothers in Korea are currently suing my family for my father’s portion as well as my father’s sister’s portion as she passed away many years ago. They are claiming they want 60% of my father’s portion and all of my aunt. There is no will left by my grandfather. They are claiming that they took care of the grandfather who was a Korean citizen. However, when my father was alive he also sent money regularly to his father and his half brothers but as it was more than 10 years ago I am uncertain how to proceed.
Governing Law Issue
Inheritance gets more complicated when it has some sort of multinational issues. Here the Korean heirs sued the U.S. heirs at the Korean court. The deceased was a Korean national and it is probable that the majority of the estate is located in Korea. That might be one of the reasons why this case should be litigated in Korea, not the U.S.
In an international inheritance case, we first need to find out which country’s law shall apply. As this case was filed with the Korean court, the Korean court decides this issue pursuant to their own choice of law doctrines. According to the Korean choice of law, the law of the deceased’s country shall become the governing law. That means, in our case, the Korean Inheritance law shall apply. (Please refer to this article regarding the basic of Korean Inheritance law)
Q) I was born in Korea but married a US citizen, moved to the US and am now a US citizen.I learned that my father has passed away in Korea and am looking for some assistance on accepting or renouncing the inheritance. I was the forth child. After I was born, my parents divorced and the first two children went with my father and the third child and I went with my mother. My father remarried and had three other children. My mother and the second wife are still alive. I was told that the estate includes property (house) and some savings. The second wife wants to live in the house until she dies and it sounds like my other siblings agreed. My half brother with whom I’ve had no previous contact called and said they need my cooperation to proceed. He asked me to sign some Korean document which I don’t understand. I’m trying to decide whether to accept or renounce the inheritance and how to accomplish either of those in the easiest way possible.
A) Under Korean inheritance law, currently you are the co-owner of the total estate without any registration or report. Other heirs cannot distribute, dispose of the estate without your consent.
The heirs in Korea might be in a hurry to pay the inheritance tax which might be one of the reasons why he contacted you. But, you should not give them the power of attorney or any authorization/consent until you have the information you need which includes your deceased parent’s name, Korean residence registration number and the detail of the estate. If he refuses to provide that, I think that is a red flag. At least he should let you know the Korean resident registration number, which is (more…)
When receiving gifts of money or other property, the party should check any tax issues involved. When the gifts cross the national borders or involve foreign parties, it becomes more complicated. It could entail an additional filing with a government of a foreign country where the foreign party resides. Today, we are going to introduce what report and tax liability the parties should take care of and under what condition, when a U.S. resident receives a U.S located house as a gift from his Korean resident parent.
Report to the Bank of Korea
According to Article 7-46 and 7-44 of Foreign Exchange Transaction Regulation(FETR), when a resident of Korea gifts a real property, which is even located abroad, to any non-resident, the Korean resident(devisor) should report the transaction in advance to the Bank of Korea.
The nationality of the parties doesn’t matter here. Only the place of residence does matter. The Korean Tax authority (National Tax Service) has an internal rule to apply to decide who is a resident and who is not.
Recently our office has represented US clients whose German father had passed away in South Korea without any will. At the time of passing, the deceased was domiciled in Korea and remarried to a Korean wife. The Korean wife contacted the US family out of blue to discuss how to distribute the estate in Korea. The US clients were the children from the deceased’s previous marriage in the US. They contacted our office for the legal advice and representation.
One of the issues was which country’s inheritance law shall be applicable, i.e. the Korean inheritance law or the German inheritance law. This was because the deceased had a foreign nationality, while his estate and residence at the time of passing were all in Korea. Practically, when the Korean law is applied, the US children shall be entitled to the larger shares than those granted under the German law.
In Korea, Article 49 of the Korean Act on Private International Law(“APIL”) is the starting point to determine which country’s law shall be the governing law in case of an international inheritance case. It provides that (more…)
Q) I have a question about whether to renounce inheritance in Korea. My mother passed away a few months ago. There was no will. She was a Korean citizen and her husband too. All two children live in the U.S. and they are U.S. citizens. As we understand I have inherited a 2/7 share of my mother’s condominium and some cash in Korea. My stepfather and his Korean lawyer seem to up to no good. They both have sent conflicting and in my opinion false information to me. Especially his lawyer is threatening me that I would not able to sell my share so I had no choice but to give up or transfer my share. The stepfather asked me to sign POA and a Renunciation of Inheritance but I refused. They even said as I am not a Korean citizen, it would be much better renouncing inheritance for the sake of estate distribution. He said he will compensate me for my renounced share. Can you give me any advice?