A married B and gave birth to the eldest son C, second son D, and youngest daughter E. A had 3,000 pyeong of forest land and 400 pyeong of farmland inherited from his father. This forest and farmland were property passed down from A’s ancestors to his eldest son. There were a total of six graves belonging to A’s great-grandparents, grandparents, and parents in the forest.
Before his death, A made a notarized will to the effect that he bequeathed these properties to his eldest son, C. When A died, his heirs negotiated a division of the inheritance. Wife B and eldest son C were in the position that C should inherit all of the inherited real estate according to A’s will. However, the younger brothers, D and E, maintained the opposing position that they should be divided equally into legal inheritance divisions.
At the time of A’s death, the market value of the relevant properties was approximately 2.7 billion won, including 1.8 billion won for forest land and 900 million won for farmland. Will C, the eldest son, be able to keep the property as A has?
C can first register the transfer of ownership of the relevant real estate to himself based on the notarized will. This is because, unlike a handwritten will, there is no need to apply for probate to the family court in the case of a notarized will.
However, since other heirs have the right to reserve shares, in principle, D and E have the right to demand a share equal to their share. Since their legal inheritance is 2/9 each, the reserved portion is 1/9 each. Therefore, one-ninth of the equity in the properties in question or the value of 300 million won can be claimed as reserve.
However, our civil law stipulates that, unlike general inherited property, the person who presides over the ancestral rites can inherit ceremonial properties such as Geumyang forest land and graveyard soil alone (Article 1008-3). Geumyang Forest is a forest for the purpose of protecting the graves of ancestors, and is also called Myosan or Jongsan. Grave soil is agricultural land used to cover the costs of ancestral rites and grave guarding with the income generated from it, and is also called wito.
The Civil Code limits the permitted area for Geumyang forest land to 3,000 pyeong and the permitted area for nursery soil to 600 pyeong . As a result, it regulates the exclusive acquisition of real estate indefinitely by the person who presides over ancestral rites. In the past, because the value of forests and farmland was small, disputes over these properties did not occur very often, but recently, many disputes have occurred due to the increase in land prices due to land development.
The graves of C’s ancestors exist in the forest area in this case. Therefore, C will be able to claim Geumyang Forest for the forest land in question and claim land for the farmland surrounding it. The area is also굿모닝토토 도메인 within the range recognized by civil law. Therefore, there is room for thinking that the entire real estate in question is property used for ancestral rites and is inherited solely by the person who presides over ancestral rites.
In this regard, two things should be noted. First, whether the real estate is a property for ceremonial use. If the surrounding forest or rice field has already been fully developed and it is highly likely that the forest or rice field will be developed in the near future, making it difficult to use it for the purpose of protecting the ancestral rites, it will be difficult to regard the real estate as property for ceremonial use.
Second, whether D is a person in the position of presiding over a ancestral rite. Previously, the Supreme Court ruled that if there was no agreement between the heirs, the eldest son would be the one to preside over the ancestral rites. However, the precedent was recently changed to allow the eldest child to preside over the ancestral rites regardless of gender (Supreme Court ruling 2018Da248626 en banc, decided on May 11, 2023). In this case, since D is the eldest child, she may be able to claim that she is in the position of presiding over the ancestral rites.
Meanwhile, the Commercial Tax Act stipulates that ceremonial use property is exempt from taxation (Article 12, Paragraph 3). Therefore, if the real estate in this case is recognized as Geumyang forest land and graveyard, inheritance tax will be exempted for inheritance of the relevant property.
Compared to the past, awareness of the importance of ancestral rites is gradually weakening. There is a growing tendency not to believe that the eldest child, such as the eldest son, must perform the ancestral rites. Accordingly, it is expected that fundamental changes will occur in these systems someday. < The Moneyist
on Hankyung.com > Kim Sang-hoon, representative attorney at Trinity Law Firm, said,
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