Wills and Inheritance Law in South Korea
Information on different types of wills in South Korea, the application of wills made in a foreign country, and inheritance law of South Korea in the absence of a will...
The main purpose of a will is to allow a person to plan for the transfer of their personal assets in the case of their death. In South Korea, a will is a document in writing or a recorded statement which designates beneficiaries (grantees) and their portions to the deceased's (testator's) estate. South Korea recognises freedom of will within the limitations of the law, which is called legal reserve of inheritance. If a Korean dies without a valid will, Korean inheritance law operates to divide the property among any heirs, which is called statutory inheritance. A will operates on persons and property existing at the time of the testator's death, so it is possible for the testator to change the will before his death if the proper rules are followed.
A person must be at least 18 years of age and of sound mind to make a will.
Foreigners and Wills in South Korea
If a testator makes a will in accordance with their home country's law, the will is considered valid in South Korea as well. According to Korean law, a will is governed by the law of the testator's home country at the time the will was made. The amendment or withdrawal of a will is also governed by the law of the testator's home country at the time the amendment or withdrawal was made.
With regard to a will's validity, Korean law considers the will valid as long as it was created according to one of the following:
- The law of the testator's home country at the time of the testator's will or death
- The law of the country of the testator's habitual residence at the time of the testator's will or death
- The law of the place where the will was made
- The law of the location with respect to real property
When it comes to inheritance of property through a will, inheritance is governed by the law of the testator's home country at the time of death. However, the testator can designate an alternative choice of law in his will as long as it is:
- The law of the country of the testator's habitual residence, provided that the testator has maintained habitual residence in the country until their death
- The law of the location of real property with respect to the inheritance of the real property
Types of Wills in South Korea
There are five types of legally accepted wills in South Korea:
- Holographic wills.
- Recording wills
- Authentic wills.
- Secret wills.
- Dictation wills
Each type has requirements which must be met in order to make the will valid. All wills can be altered by means of an amendment attached to the will or by making a new will. The newer will applies. If the type of will requires a witness, the witness must satisfy the eligibility requirements set by the law.
Holographic wills must be entirely hand-written by the testator, including the date of writing, address, and signature. The testator must put their fingerprint or seal on the document.
A will can be made by audio recording. The testator must record their testament, name, and the date. At least one witness, present during the testament, must record the exactness of the will and their name.
An authentic will must involve two witnesses and the main points must be spoken in the presence of a notary public. The testator dictates the will, and the notary public writes it out. After the testator and witnesses accept the exactness of the will, they sign it respectively. The will is kept by the notary public. An authentic will is generally considered the most legally secure type of will.
If the testator wants the content of the will to be kept secret, a secret will can be made. After the testator writes a will with their name, it is sealed in order to keep it secret. The testator declares the sealed document to be their will in the presence of two witnesses and the testator and witnesses sign on the sealed envelope with the date. The secret will must be submitted to either a notary public or a clerk of a family court, in order to get an officially stamped date on the document, within five days from the date written on the envelope.
A dictation will is allowed only in emergency circumstances. In order to make a dictation will, it must be impossible for the testator to make an alternative type of will because of illness or imminent death. The testator must orally declare his will to one of two witnesses present, and the person to whom the oral declaration is made must write it down and read it. Then the testator and each witness, after having acknowledged the writing to be due and correct, must sign and seal the will. The will must be submitted by the witness to the family court for inspection and approval within seven days of the end of these emergency circumstances.