Blog, Inheritance

Life is fleeting, yet property endures, and Someone must take possession of what remains. It is essential that ownership is promptly established to prevent instability in other legal relationships that may depend on the resolution of the estate. For example, if you are a tenant and your landlord passes away, to whom should you pay next month’s rent?

These issues prompt the Civil Act in Korea to define clear guidelines regarding the distribution of estate property – who it should pass to and how it should be divided.

Division of Estate Property under Korean Civil Act

a. Division by Will (유언에 의한 분할)

Article 1012 (Determination of Method Division or Forbidding Division by Will)

An inheritee may by will determine the method of division of the inherited property, entrust a third person with such determination, or forbid division for a period not exceeding five years from the time of the commencement of the inheritance.

This provision reflects the principle that the wishes of the deceased regarding their estate should ultimately be respected, even though the deceased cannot speak for themselves. 

Typically, the deceased may have specified the division method for major assets like real estate in their will. In such cases, the will’s directives apply exclusively to the properties listed therein. Assets not specified must be divided by other means.

b. Division by Agreement (협의에 의한 분할)

Article 1013 (Division by Agreement)

(1) Except as mentioned in Article 1012, co-inheritors may, at any time, affect the division of the inherited property by their agreement.

This method, often utilized due to its respect for the heirs’ wishes, allows for flexible arrangements such as one heir acquiring a piece of property while others may agree to share different assets. 

Such agreements can be revisited and altered if all heirs consent. However, for the division to be legally valid, all heirs must agree; if even one does not participate, the entire agreement becomes invalid. Therefore, active participation from all heirs is necessary, and any changes also require unanimous consent.

Moreover, once an agreement is reached, it is generally considered final unless exceptional circumstances arise. Should an heir later change their mind and initiate legal proceedings for a different division, the court typically dismisses such cases based on the prior agreement.

c. Division by Court Order (법원에 의한 분할)

Article 1013 (Division by Agreement)

(2) The provisions of Article 269 shall apply mutatis mutandis to the division of the inherited property mentioned in paragraph (1).

Article 269 (Methods of Partition)

(1) If, with regard to the methods of partition, no agreement can be reached among the co-owners, any co-owner may file an application for partition with a court.

(2) If partition of the property itself cannot be effected, or if there is an apprehension that the property may considerably depreciate in value as a result of partition, the court may order a sale thereof by official auction.

When co-heirs cannot reach an agreement, or if contact with some heirs has been lost, claiming the division of the inherited property to the court (상속재산분할심판청구) may proceed through a court order as a last resort. In such cases, all heirs must be involved in the legal process. If an heir initiates division proceedings without including all others, any resulting decision is considered invalid.

Conclusion

The deceased cannot express their wishes beyond the grave. It is unlikely that their intention was for their departure to lead to a bitter legal battle driven by greed and anger among their survivors. Perhaps, remembering the deceased with compromise rather than greed, and mourning instead of anger, may serve to honor their memory more fittingly, making us more humane, even more than any monetary value.