[Chatting] The building my 男 left me... "Isn't monthly rent also subject to division?"

□ Broadcast date and time: November 7, 2024 (Thursday)
□ Host: Attorney Cho In-seop
□ Cast: Attorney Yoo Hye-jin

* The text below may differ from the actual broadcast content, so please check the broadcast for more accurate information.

□ The writer: My mother was an iron man. I woke up early in the morning and worked as a housekeeper, sold insurance, and later worked in a restaurant. I think you did whatever you wanted to do if it made money. When my brother and I were young, we had to take care of our family's raw crab alone after my father died in a car accident. When my brother and I told me we'd work part-time in the evening, my mother insisted that studying was the way to make money. In the end, my mother opened a restaurant and even ordered my brother and sister to study at university. And by the time we graduated from college, we could even buy a decent building on the side of the neighborhood boulevard. But maybe it's because I only worked non-stop, my mother died too early from cancer before I even enjoyed life. During his lifetime, he left a will through a lawyer, and he decided on a deposit for me and a building for his younger brother. My brother and sister decided to respect my mother's wishes. But somehow, five years after my mother's death, I was able to divide the inherited property. My younger brother received a considerable amount of monthly rent from the tenants of the building for five years. The younger brother claims that since he inherited the building, the monthly rent from the building is of course his responsibility. I'm just confused because I don't know how to do it, but is my brother right?

◇ Lawyer Cho In-seop (hereinafter referred to as Cho In-seop): It was a story about the inheritance of property left by his mother. My mother passed away after suffering so much.

◆ Lawyer Yoo Hye-jin (hereinafter referred to as Yoo Hye-jin):

◇ Jo In-seop: I think you're wondering if your brother should follow his mother's decision because he will receive a lot more than the inheritance if he pays for his monthly rent for five years. Please briefly explain when the inheritance begins under our civil law and how the share of the heirs is determined.

◆ Yoo Hye-jin: Our Civil Code considers the death of a person who leaves after giving property in Article 997, that is, the heir, as the cause of the initiation of inheritance. Since the mother of the deceased, who is the heir, has passed away, it should be considered that the inheritance began. The mother of the deceased has a child and a younger brother, and these siblings are direct descendants of the heir and become the first and joint heirs pursuant to Article 1000 (1) 1 of the Civil Code. In Article 1009 (1) of the Civil Code, if there are several heirs of the same rank, the inheritance shall be equal. Accordingly, if the legal inheritance is calculated, the sender and younger brother each inherit half of their mother's property. Inheritance stipulated in the civil law is called legal inheritance, and there is also a concept of specific inheritance. Specific inheritance refers to the inheritance calculated by deducting the value of the special income from the legal inheritance if there is an heir who received special income such as a gift or bequest before life.

◇ Cho In-seop: I think your mother has set the exact share of siblings with her will, but let's find out what the will is and move on.

◆ Yoo Hye-jin: Yes, a will is the final expression of intention that a person decides the legal relationship after his death in his lifetime. A will is an act that must be carried out according to the independent will of the testator himself and corresponds to a single act that does not require the other party's acceptance. In addition, the testator may freely make a will according to his or her will, and may change or withdraw it at any time. However, you can only make a will on matters concerning the disposition of family relations, property, inheritance, and execution of wills prescribed by the Civil Act. It is easy to recognize that the last word or request a testator usually leaves to his or her family or relatives just before he or she dies is a will. So of course, I think it has a legal effect just by leaving a word, but it's not. Our civil law requires a strict method for wills.

◇ Cho In-seop: What would be the strict way?

◆ Yoo Hye-jin: The civil law strictly sets the will in five ways. And Article 1060 of the Civil Code stipulates that only wills made in this manner are recognized as effective. The five methods prescribed by the Civil Act refer to the will of handwritten certificates, the will of recording, the will of fair certificates, the will of secret certificates, and the will of old certificates. A will by handwritten certificate refers to a will written by the testator himself or herself (Article 1066 (1) of the Civil Act). Recorded will refers to a will prepared by a testator directly telling the matters prescribed by the law, and a witness confirming the accuracy (Article 1067 of the Civil Code). A notarial deed will refers to a will that is left as a notarial deed. The contents of the will explained by the testator are received by the notary, and confirmed by the witness and the testator, and left (Article 1068 of the Civil Act). The will of a secret deed is used when you want to leave a will, but you want to keep it strictly secret until you die. After the testator is not allowed to see the contents of the will, it is sealed and submitted to two or more witnesses for confirmation (Article 1069 (1) of the Civil Code). The will of the old will is a will that conveys the contents of the will in words to a witness for urgent reasons such as a disease (Article 1070 (1) of the Civil Code).

◇ [Jo In-seop] I see, is there a reason why we ask for such a strict method in our will? Also, is a will that fails to follow a strict method unconditionally invalid?

◆ Yoo Hye-jin: Yes, in order to clarify the true intention of the testator and prevent legal disputes and confusion, the Civil Code sets strict methods and requirements for the will. Therefore, even if the will agrees with the true will of the testator, it is invalid if it violates the requirements and methods set by the Civil Act (see the Supreme Court's sentence 2005Da57899 on March 9, 2006). However, Article 1071 of the Civil Code considers the will of a handwritten certificate if it is suitable for the method of a handwritten certificate, even if the secret certificate will discussed earlier is defective. Therefore, a will that fails to comply with a strict method does not unconditionally invalidate it, and if it can be considered to be a will in a different way, its validity can be recognized.

◇ Cho In-seop: It is said that your mother set the inheritance of her brother and sister through her lawyer's will when she was alive. The contents of the will and the legal inheritance are different, what happens in this case?

◆ Yoo Hye-jin: As I said earlier, wills must follow a strict method, and wills that do not follow the method set by civil law are considered invalid. In the case of the mother of the letter, I don't know exactly how she made her will, but there is no problem with the way she made her will through a lawyer while she was alive, and it can be considered legitimate. The mother's will has a strong effect on changing the legal inheritance of siblings, who are joint heirs. Therefore, if the mother's will is legal and has no problem with the method, it takes effect, and in principle, it is inherited according to the content of the will, and the property that the brother and sister will inherit is determined according to the will.

◇ Cho In-seop: But he delayed the division of the inherited property for five years, but he later divided the inherited property according to his will, and in the meantime, he incurred a considerable amount of monthly rent in his younger brother's building. How can we legally define the monthly rent incurred in buildings and buildings that are inherited property?

◆ Yoo Hye-jin: As I said at the beginning, the inheritance begins when the mother of the sender dies, and due to circumstances, the sender and younger brother had to split the inherited property five years after their death. At this time, it is said that the monthly rent incurred from the time when the building of the younger brother's share was divided into the original of the inherited property, and five years after the mother's death is said to be the fault of the inherited property. Raw material refers to an object that is a source of any profit, and a building corresponds to this because you can receive monthly rent from the building that your brother inherited. The negligence of inherited property is the profit generated from the original property, which is the inherited property, and refers to the monthly rent received by the younger brother of the sender.

◇ Cho In-seop: I see. Then, who is responsible for the monthly rent, which is the fault of the building? Should it be seen as part of the inherited property building, as my brother claims?

◆ Yoo Hye-jin: The monthly rent that the younger brother of the letter will receive did not exist at the time of the commencement of inheritance, but occurred in the building of the younger brother's inherited property until the division of the inherited property was completed after the commencement of inheritance. However, there is a considerable time interval of five years from the mother's death to the actual division of inherited property, which is a problem. There are views that such negligence is also subject to division of inherited property, and that in principle, it is not subject to division, but can be subject to division if there is an agreement between all joint heirs, and that it is subject to division if there is an agreement between joint heirs or if it is necessary to promote fairness between heirs. Some lower courts judged that negligence is also subject to the division of inherited property in principle, but there are more cases of judgment that are not subject to division in principle, but are subject to division when there is an agreement between joint heirs or when it is necessary to promote fairness between heirs.

◇ Cho In-seop: According to most cases of judgment, if the monthly rent is not subject to the division of inherited property in principle, the monthly rent should be divided separately, to whom and how should it be considered?

◆ Yoo Hye-jin: The division of inherited property has a retroactive effect. Therefore, it is considered that the deposit attributable to the sender, who is a co-inheritor, and the building attributable to the sender's younger brother were directly transferred from the sender's mother at the beginning of inheritance, that is, at the time of the death of the sender's mother. For this reason, there is a view that the monthly rent from the building is acquired by the younger brother alone, but it is a common view in Korea that the negligence of inherited property is a public property that heirs acquire according to the inheritance. However, at this time, there has been no discussion for a while whether the inheritance means a legal inheritance or a specific inheritance. However, the Supreme Court recently decided that unless there are special circumstances, the negligence of the inherited property will be acquired according to the specific proportion of inheritance calculated based on the time of commencement of inheritance. If the negligence is uniformly attributed according to the legal inheritance, it seems to be a judgment considering the fact that there may be cases that go against the equity between joint heirs.

◇ Cho In-seop: So in your case, I think you can claim the right to rent?

◆ [Yoo Hye-jin] That's right. As previously discussed, monthly rent is a separate property from the building, so in principle, it cannot be subject to the division of inherited property. However, if your younger brother acquires all the monthly rent alone, there is a concern that it will harm the equity with the sender. Therefore, in exceptional cases where it is necessary to promote fairness between heirs, the sender can claim the right to monthly rent according to the specific inheritance. Since there is no circumstance that the sender or her younger brother received property during her mother's lifetime or contributed to her property in particular, the specific inheritance is no different from the legal inheritance, so the sender will be able to receive half of the monthly rent incurred.

◇ Cho In-seop: Now, to summarize what we've been talking about so far... The inheritance begins when the heir dies, and you and your brother will inherit half of your mother's property. Wills are recognized for legal effect only in accordance with the method prescribed by the Civil Act, and wills include a handwritten certificate, a recording, a notarial certificate, a secret certificate, and a old certificate that conveys the contents of the will to the other party in words. If your mother left her will through her lawyer in a legitimate manner, the siblings will inherit according to the will. The building inherited by the younger brother is said to be the original property of the inherited property, and the monthly rent generated from the building is said to be the fault of the inherited property. In principle, the monthly rent, which is the fault of the building, is not subject to division, but if it is necessary to promote fairness between heirs, it may be subject to division. The Supreme Court determined that the negligence of inherited property is acquired according to the specific inheritance rate at the time of commencement of inheritance. Therefore, it seems that you can claim the right to rent, and you will be able to receive half of the monthly rent. You've been with lawyer Yoo Hye-jin.

◆ Thank you.

◇ Cho In-seop: You can listen to <Attorney Cho In-seop's Counseling Office> again on YouTube. If you have any questions or suggestions, please comment.