Division of Inherited Property

When inheritance commences upon the death of the decedent, the decedent's property becomes jointly owned by all the co-heirs (Articles 1006 and 1007 of the Civil Act).

At this point, because it is difficult for each heir to exercise their rights while the property remains jointly owned, division is necessary to resolve this state.

Through division of inherited property, each heir's share is determined.

Accordingly, each heir may dispose of, use, or take profits from the property as their own right.

To reduce disputes that may arise over division after death, it is advisable to make matters clear through division of inherited property.

In principle, all inherited property is subject to division.

Here, inherited property refers to all objects and rights of monetary value that the decedent held during their lifetime, and it includes all tangible and intangible assets of economic value.

The co-heirs' jointly owned property may be divided into each person's share, and it is valued on the basis of its value at the time of division or at the time of adjudication.

At this point, specific items such as real estate, securities, vehicles, and antiques may be divided in various ways, including division in kind, division by proceeds, and division by value.

Property of a divisible nature, such as money (divisible claims and divisible obligations), is automatically divided and succeeded to according to the statutory inheritance shares at the same time as the commencement of inheritance.

Accordingly, it does not separately become subject to division of inherited property (see Supreme Court Decision 97Da8809, June 24, 1997).

Statutory Order of Inheritance

※ Here, the decedent's legal spouse becomes a co-heir together with the decedent's lineal descendants or lineal ascendants where such heirs exist, and becomes the sole heir where there are no heirs who are lineal descendants or lineal ascendants of the decedent.

Here, a divisible claim refers to a claim that retains its effect even when divided, and a divisible obligation means one that may be divided among several heirs and performed.

Where the decedent has determined the method of dividing the inherited property by a will made during their lifetime, the property is divided in accordance with the contents of that will (Article 1012 of the Civil Act).

Methods of Division by Designation

Division by designation is possible only where there is a will or where the method of division has been entrusted to a third party by will, and it must be followed unless the designated method of division is legally void or violates a mandatory provision.

This is a method of dividing the inherited property by the free agreement of all co-heirs (Article 1013(1) of the Civil Act).

It is possible only where the decedent's will contains no provision prohibiting division.

At this point, if the co-heirs include a minor, a special representative must be appointed for the agreement to be valid.

In addition, a declaration of intent to enter into the agreement made by fraud, duress, or mistake may be revoked (Articles 109 and 110 of the Civil Act).

Where no agreement is reached, a claim for division of inherited property may be filed with the family court (Article 1013(2) of the Civil Act; Article 2(1)2(b)10 of the Family Litigation Act).

At this point, an adjudication of division may be filed by one or more of the heirs against all the other heirs.

If there is a concern that the value of the property may be substantially impaired, the court may order an auction instead of division in kind (Article 269(2) of the Civil Act).

Contents of the Petition for Adjudication of Division of Inherited Property

New inherited property may emerge even after division, in which case the existing agreement may be rescinded and a new agreement reached.

However, the consent of all heirs is required, and the rights of a third party acquired before the rescission may not be prejudiced (Supreme Court Decision 2002Da73203, July 8, 2004).

Once division of the inherited property is completed, each heir's ownership is recognized retroactively as of the time inheritance commenced (Article 1015 of the Civil Act).

In other words, each heir is deemed to have owned the property acquired by them from the date of commencement of inheritance.

As an exception, the rights of a third party may not be prejudiced, and if a third party acquired a right before the division of inherited property, that right is protected.

Where there is a defect in the divided inherited property, the other co-heirs also bear a certain degree of liability (Article 1016 of the Civil Act).

Where the property acquired by another co-heir includes a claim, the other co-heirs must warrant the debtor's ability to pay (solvency) (Article 1017 of the Civil Act).

In addition, for a claim whose due date has not yet arrived, they must warrant that solvency will be maintained when that date arrives.

Where some of the co-heirs are unable to fulfill their warranty liability, the other solvent heirs must share the burden (Article 1018 of the Civil Act).

However, a person at fault may not make a claim for apportionment.

If, after division of inherited property, there is a child who is also recognized as an heir (through affiliation and the like), that person cannot directly claim the existing inherited property, but may demand the amount corresponding to their inheritance share (Article 1014 of the Civil Act).

However, this right must be exercised within 3 years from the date on which the person learned of having been excluded from the inheritance (Article 999(2) of the Civil Act).

This law firm includes specialist attorneys with an average of more than 10 years of experience, as well as a number of inheritance specialist attorneys registered with the Korean Bar Association.

As a result, comprehensive support is available, from preparing the list of inherited property to assistance with the procedures according to the method of division, the subsequent registration procedures, and the payment of inheritance tax.

If you need legal assistance regarding the division of an inheritance, you may request assistance from an inheritance attorney at any time.