Execution and Probate of Wills in Japan: How are a Deceased Person's Wishes Carried Out?

Japanese Attorney at Law - Bengoshi L.L.

• 7 min read

Creating a legally valid will (igon - 遺言) is a critical step in estate planning in Japan, allowing individuals to direct how their assets should be distributed after their death. However, the will itself is merely a document until its provisions are put into effect. This process involves two key stages: first, for certain types of wills, a court verification procedure known as ken'in (検認), akin to a limited form of probate; and second, the substantive execution (shikkō - 執行) of the will's terms, often carried out by a designated executor (igon shikkōsha - 遺言執行者). This article explores these essential post-mortem procedures that ensure a deceased person's testamentary wishes are realized under Japanese law.

I. Initial Steps After Death: Verification (Ken'in - 検認) and Opening of the Will (Article 1004, Civil Code)

Not all wills in Japan require the same initial procedures after the testator's death. The requirement for ken'in depends on the form of the will.

A. Which Wills Require Ken'in?

  1. Holographic Wills (自筆証書遺言 - Jihitsu Shōsho Igon): Wills entirely handwritten, dated, and sealed by the testator generally require ken'in.
    • Exception (Post-PDF Reform): A significant recent development (effective July 2020) is the establishment of a system for the custody of holographic wills by Legal Affairs Bureaus (法務局 - Hōmukyoku). If a holographic will has been formally deposited under this system, it does not require subsequent Family Court ken'in. This reform aims to reduce the burden on heirs, enhance the security of holographic wills, and streamline post-death procedures.
  2. Secret Wills (秘密証書遺言 - Himitsu Shōsho Igon): This less common form of will, where the content is kept secret until death but its existence is formalized before a notary, also requires ken'in.
  3. Wills in Special Forms: Wills made under exigent circumstances (e.g., imminent danger of death) that require court confirmation to be effective also undergo a process similar to or combined with ken'in.

Note: Notarized Wills (公正証書遺言 - Kōsei Shōsho Igon), which are prepared by a notary public with witnesses, do not require ken'in. The involvement of a notary in their creation is considered sufficient to ensure their authenticity and formal validity, obviating the need for this post-mortem court check.

B. The Purpose of Ken'in

It is crucial to understand what ken'in does and does not achieve:

  • Primary Purposes:
    • To preserve the physical condition of the will document as it was found after the testator's death, preventing subsequent alteration, forgery, or concealment.
    • To formally notify the heirs and other interested parties of the will's existence and its contents.
  • What Ken'in is NOT:
    • Ken'in is not a judgment on the substantive legal validity of the will. It does not confirm that the will meets all formal requirements (e.g., proper handwriting, date, seal for a holographic will), that the testator had the requisite testamentary capacity, or that its provisions are legally enforceable. These issues can still be challenged in separate court proceedings (e.g., a lawsuit to confirm the nullity of the will - 遺言無効確認訴訟, igon mukō kakunin soshō).

C. The Ken'in Procedure at the Family Court

  1. Submission: The custodian of the will (the person who has possession of it) or an heir who discovers it must, without delay, submit the will to the Family Court that has jurisdiction over the decedent's last domicile (Article 1004(1)).
  2. Summoning of Parties: The Family Court will set a date for ken'in and summon the heirs and any other known interested parties (e.g., legatees, designated executor) to attend. However, the procedure can proceed even if not all parties attend.
  3. Examination and Record: On the ken'in date, the court examines the will's physical state (e.g., type of paper, writing instrument, any alterations or damage) in the presence of those attending. The court then creates an official record (ken'in chōsho) detailing its findings about the will's condition.
  4. Opening of a Sealed Will (Article 1004(3)): If the will is sealed, it must be opened in the Family Court in the presence of the heirs or their representatives. Opening a sealed will outside of this formal court procedure can result in a non-penal administrative fine for the person who improperly opened it (Article 1005), although the will itself is not thereby invalidated.

Failure to submit a will for ken'in when required, or executing its terms without undergoing ken'in (for wills that need it), can also result in a non-penal fine (Article 1005). However, such omissions do not, in themselves, render the will legally void.

II. The Executor of the Will (Igon Shikkōsha - 遺言執行者): The Testator's Appointed Agent

Once any necessary ken'in process is complete, the substantive task of carrying out the will's provisions begins. This is the "execution" of the will. While heirs can sometimes manage this themselves for very simple estates, the appointment of an executor is often crucial for a smooth and legally sound process.

A. When is an Executor Necessary?

  • Legally Indispensable: An executor is legally required for certain testamentary acts that cannot be performed by heirs alone. These include:
    • The acknowledgment (ninchi) of a non-marital child by will.
    • The disinheritance (haijo) of an heir by will (the executor must petition the Family Court for confirmation).
  • Highly Advisable/Practically Necessary: Even when not strictly legally required, appointing an executor is highly advisable in many situations:
    • Complex estates with numerous assets or liabilities.
    • Multiple beneficiaries with potentially conflicting interests.
    • When the will contains specific or complicated instructions.
    • To ensure impartiality and efficiency in the administration of the estate.
    • If the testator anticipates disputes among heirs.

If a will contains provisions requiring an executor but none is designated or able to act, the Family Court can appoint one.

B. Appointment of an Executor (Articles 1006, 1010, Civil Code)

  1. Designation by the Testator (Article 1006(1)): The most common method is for the testator to name one or more executors in their will. The testator can also entrust the designation of an executor to a third party in the will.
  2. Appointment by the Family Court (Article 1010): If no executor is designated in the will, or if the designated executor declines the appointment, is deceased, or is otherwise unable or unsuitable to act, any interested party (such as an heir, legatee, or creditor of the estate) can petition the Family Court to appoint an executor.

Eligibility to Serve as Executor (Article 1009): Minors and individuals who have been adjudicated bankrupt and whose rights have not been restored are disqualified from acting as executors. Otherwise, an executor can be an heir, a legatee, a trusted friend or relative, a professional (such as a lawyer or judicial scrivener), or even a corporate entity (like a trust bank).

III. Powers, Duties, and Responsibilities of the Executor

Once appointed and having accepted the role, the executor assumes significant legal responsibilities.

A. Commencement and Core Duty

  • The executor's duties commence upon their acceptance of the appointment (Article 1007). They must promptly notify the heirs of their appointment and begin their tasks without delay.
  • The core duty of the executor is to manage the inherited property and to perform all acts necessary for the execution of the will (Article 1012(1)).

B. Specific Tasks of the Executor

The executor's specific tasks will vary depending on the will's contents and the nature of the estate, but typically include:

  1. Preparing an Estate Inventory (財産目録 - Zaisan Mokuroku): The executor must, without delay after assuming office, prepare a detailed inventory of all estate assets and liabilities and provide it to the heirs (Article 1011). Heirs have the right to be present during the inventory preparation.
  2. Taking Possession and Managing Estate Assets: The executor has the right to take possession of and manage the estate property necessary for executing the will.
  3. Paying Debts and Expenses: Identifying and paying the decedent's legitimate debts, funeral expenses (if considered payable from the estate), and the expenses of will execution.
  4. Fulfilling Testamentary Gifts (Izō): Transferring bequeathed assets (whether specific items or monetary amounts) to the designated legatees.
  5. Implementing Status-Related Provisions: Taking necessary legal steps for testamentary acknowledgment of a child or disinheritance of an heir.
  6. Distributing Residual Estate: After fulfilling all bequests and obligations, distributing any remaining estate assets to the heirs according to the terms of the will or, if the will only partially disposes of the estate, according to the rules of statutory succession for the remainder.

C. Executor as Representative of Heirs (Article 1015)

A crucial legal principle is that the executor is deemed to be the representative of the heirs concerning all matters related to the execution of the will. This has several implications:

  • Exclusive Authority: The executor generally has the exclusive right and duty to carry out the will's provisions related to the estate property.
  • Restriction on Heirs' Powers: Heirs cannot, by their own actions, dispose of estate property in a manner that would obstruct the executor's duties (Article 1013). Any act by an heir that contravenes the executor's powers of execution is void, though this invalidity cannot typically be asserted against a bona fide third party who was unaware of the restriction.

D. Standard of Care and Other Duties

  • An executor has the duties of a mandatary (jun'inin - 準委任), which implies a duty to act with the care of a good manager (zenryō na kanrisha no chūi gimu - 善良な管理者の注意義務) (Article 1012(2) applying Article 644 by analogy).
  • If multiple executors are appointed, they generally must act jointly, unless the will specifies otherwise or allows for decision by majority or individual action for certain tasks (Article 1017).
  • Remuneration (Hōshū) and Expenses (Articles 1018, 1021):
    • Remuneration for the executor can be specified in the will. If not, the Family Court can determine a reasonable amount based on the complexity of the estate, the executor's efforts, and other circumstances.
    • Expenses necessarily incurred in the execution of the will are payable from the estate assets and generally take precedence over payments to legatees.
  • Resignation and Dismissal (Article 1019):
    • An executor can resign with the permission of the Family Court if there are justifiable grounds.
    • Heirs or other interested parties can petition the Family Court to dismiss an executor if they neglect their duties or if there is any other just cause for dismissal.

IV. Conclusion: Realizing the Testator's Final Wishes

The execution of a will in Japan is a structured process designed to ensure that a testator's intentions, as expressed in their formally valid will, are carried out effectively and legally. The preliminary step of ken'in (court verification) for holographic and secret wills serves to preserve the document and notify interested parties, though the new custody system for holographic wills at Legal Affairs Bureaus offers a streamlined alternative. The substantive work of execution falls primarily to the executor—whether designated by the testator or appointed by the Family Court—who acts as a fiduciary with significant powers and responsibilities to manage the estate, settle obligations, and distribute assets according to the will's directives. While Japan does not have a comprehensive, court-supervised "probate administration" for all estates in the manner of some Anglo-American jurisdictions, the executor system, with the Family Court providing oversight and intervention when necessary, provides the essential mechanism for transforming a testator's written wishes into tangible reality.