[Column] Can prenatal inheritance be divided into inherited property?

Although it is rare, even in this era, there are families that have a ancestral temple, a graveyard, and a shrine and have continued the tradition of paying homage to their ancestors from generation to generation. Our family is one of them. My family is the head of the Seongsan family, and lives in a clan village in Hangae Village, Wolhang-myeon, Seongju-gun, Gyeongsangbuk-do. We have inherited ancestors, tombs, shrines, and ancestral rites from generation to generation, and have been serving our ancestors. Perhaps that is why the author has some experience representing the defendant in cases where the division of inherited property was requested.

The ownership relationship of the mountain that enshrined the tomb of our ancestors can be broadly divided into two types.

One is a method in which a clan, which is an unincorporated division, owns a mountain and entrusts the registered title to the clan representative or other trustworthy clan members. In principle, the Act on Registration of the Name of the Real Owner of Real Estate considers both the title trust agreement and the registration pursuant to this agreement invalid (Article 4, Paragraphs 1 and 2 of the same Act), but with regard to real estate held by a clan, an exception provision is made to recognize the effect of a title trust contract in which the actual rights holder and the registered name are different (Article 8, Paragraph 1 of the same Act). In this case, the registered holder of the deceased, that is, the title trustee, is determined by a contract between the clan and the title trustee, and even if the registered holder dies without settling the title, the title trustee's heir automatically succeeds to the title trustee.

In the case of a change in ownership based on a title trust agreement, no gift tax, transfer tax, or acquisition tax is imposed. In reality, disputes often arise when the heirs of the title trustee claim ownership of the deceased's property against the clan because the clan and the trustee do not clearly write a contract. In order to prevent such disputes and risks arising from them, it is important to have the title trust agreement notarized and keep it well.

The other method is for the person who presides over the ancestral rites to inherit the deceased's assets, etc. The Civil Code stipulates in Article 1008-3 that ‘the person who presides over the ancestral rites shall inherit the ownership of Geumyang forest land within 1 jeongbo of a tomb, farmland as tomb soil within 600 pyeong, genealogy, and tools.’ The meaning of this law is, first, that in the case of the death of the heir who presided over the ancestral rite, Geumyang forest land, grave soil, genealogy, and ancestral rites are excluded from the inherited property subject to division. In other words, the Geumyang forest, graveyard, genealogy, and ritual tools are inherited solely by the next person who presides over the ancestral rites, and the person who presides over the ancestral rites not only inherits the title but also has complete ownership. According to the 2008 Supreme Court unanimous decision, if there is no agreement between the co-heirs, the eldest son of the deceased becomes the ancestor, if the eldest son has already died, the eldest grandson, and if there is no son among the co-heirs, the eldest daughter of the deceased becomes the ancestor.

What is important to note is that Article 1008-3 of the Civil Act only applies in cases of inheritance and does not apply in cases where the deceased disposed of Geumyang forest land, grave soil, genealogy, and tools in advance. According to Article 8, Paragraph 3 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, tax exemption applies up to 9,900 square meters for Geumyang forest land and 1,980 square meters for farmland with seedling soil. If the total asset value of Geumyang forest land and farmland with seedling soil exceeds 200 million won, tax exemption is applied only up to 200 million won.

In reality, disputes often arise when other heirs claim that they will not recognize the mountain as Geumyang forest land and file a lawsuit to divide the inherited property, or when they question the status of the person who presided over the ancestral rite and file a lawsuit to confirm the status of the person who presided over the ancestral rite. If you want to inherit Geumyang Forest alone, you must take good care of the cemetery, the mountain that guards the cemetery, and especially the trees surrounding the cemetery. If the forest is cut down and some of the area is used for other purposes, the nature of Geumyang Forest will be lost.

It would be best to familiarize yourself with these legal principles in advance to prevent family members from fighting over property, but if a dispute has already occurred, you should immediately seek out a lawyer who specializes in inheritance and have the situation diagnosed. This is because inheritance issues are intertwined with inheritance tax reporting and payment deadlines, so the longer it is delayed, the more losses accumulate.

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[Column] Can prenatal inheritance be divided into inherited property? (Shortcut)