Inheritance with family members of foreign nationality: which country's law applies?

As more siblings have emigrated, it has become common for some heirs to be foreign citizens. The first question in such cases is, “My younger brother is a U.S. citizen. Can he still inherit?” He can. This is because the standard for deciding the law applicable to inheritance lies with the deceased, not the heir.

The deceased's nationality is the standard

Article 77(1) of the Act on Private International Law (국제사법) provides that inheritance is governed by the law of the deceased's nationality at the time of death. If your parents died as Korean nationals, the heirs and their shares are decided under the Korean Civil Act whether an heir is a U.S. citizen or lives in Japan, and an heir's nationality does not change their share.

Conversely, if a father who acquired foreign nationality died leaving land in Korea, the law of that country is the standard in principle. However, if that country's law in turn provides for Korean law to apply, Korean law may govern (Article 22 of the Act on Private International Law), and if the deceased expressly designated in a will the law of their habitual residence or the law of the place where the real estate is located, that law applies (Article 77(2)). This is why the conclusion can differ from case to case even for the same land.

Wills written abroad

The rules on the form of a will are generous. It is enough for the will to comply with any one of the following: the law of a country of which the testator was a national at the time of making the will or at death, the law of the testator's habitual residence at the time of making the will or at death, the law of the place where the will was made, or, for a will concerning real estate, the law of the place where it is located (Article 78(3)). This means a will made in the United States in the local form can also be valid in Korea. However, registering property in Korea on the basis of that will may separately require procedures such as probate (검인) or translation and authentication.

Deadlines run the same way abroad

The three-month period for renunciation of inheritance (상속포기) and qualified acceptance (한정승인) runs just the same even if you are abroad. Korean nationals residing abroad can obtain signature authentication at a Korean diplomatic mission in place of a certificate of seal impression, while foreign nationals need local notarization, an apostille or consular confirmation, and a translation. Authentication can take several weeks, so we also consider appointing a domestic agent by power of attorney or requesting an extension of the period.

• If an heir has an address abroad, the filing deadline for acquisition tax and inheritance tax is extended to nine months (Article 20 of the Local Tax Act and Article 67 of the Inheritance Tax and Gift Tax Act).
• A foreign national who acquires real estate in Korea through inheritance must report it to the competent authority within six months of acquisition (Article 8(2) of the Act on Report on Real Estate Transactions).
• Preparing in advance documents linking your Korean name with the name in your foreign passport as the same person can reduce requests for corrections.

For assets located abroad, even if the shares are determined under Korean law, separate procedures with the courts or authorities of that country are often required. Saving time and cost starts with making a table of which assets are in which country and how much, and deciding which country's procedures to go through first. So that domestic deadlines do not pass while heirs living abroad are slow to respond to discussions, set the order of tasks starting with those that have deadlines.