제1장 상속이란 무엇을 의미합니까?
1. 상속인이란? ··························································································· 3
1-1. 상속의 개념 ······················································································· 3
1-2. 상속의 대상(재산상속만 가능) ······················································· 3
1-3. 상속의 개시(피상속인의 사망으로 개시) ········································ 3
■ 실종선고가 있어도 상속이 개시되는지요? ··············································· 4
■ 실종선고되었던 아버지가 살아서 돌아오셨습니다. 이 경우 상속받은 재산
은 어떻게 되나요? ·················································································· 5
1-4. 상속이 개시되는 장소 ···································································· 5
■ 저의 아버지가 뇌사상태입니다. 이를 이유로 상속을 개시할 수 있을까요?5
1-5. 상속의 비용 ····················································································· 6
■ 장례비용도 상속비용에 해당하는지요? ··························································· 6
■ 상속비용의 종류로는 무엇 무엇이 있는가요? ··············································· 7
■ 아버지가 유언을 하지 않고 돌아가셨어요. 아버지의 재산은 어떻게 분배되
나요? ·················································································································· 7
■ 태아도 재산상속을 할 수 있는지요? ······························································ 8
■ 이북 지역에 남은 가족을 재산상속인에서 제외할 수 있는지요? ················ 9
■ 남편과 아들이 동시에 사망한 경우 남편 재산의 상속인은 누가 되나요? 10
■ 양자가 사망한 경우에 양자의 상속인에는 친부모도 포함되는지요? ········ 12
■ 피상속인이 외국인인 경우에도 상속받을 수 있나요? ································ 12
■ 이혼 소송 중인 배우자도 상속이 가능한가요? ··········································· 13
■ 사실혼 배우자도 상속을 받을 수 있나요? ················································· 13
■ 공동사업을 하고 있던 중 한 분이 사망한 경우 상속인은 동업자로서의 지
위를 상속하는지요? ······················································································· 14
■ 농민이 아닌 사람도 농지를 상속받을 수 있는지요? ·································· 14
■ 주택임차인의 상속인은 임차인으로서의 지위를 상속받을 수 있는지요? · 15
■ 사실혼 배우자도 주택임차권을 상속받아서 제 명의로 바꿀 수 있을까요? 15
■ 계속적 보증채무도 상속하는지요? ································································ 16
■ 벌금형을 선고받고 사망한 경우 이 금액도 상속되는지요? ······················· 17
■ 자동차 운행 중 사고로 사망한 경우 상속인은 보험료 청구를 할 수 있는
지요? ·············································································································· 17
■ 교통사고의 가해자가 피해자를 직접 상속한 경우 보험금을 청구할 수 있는
지요? ················································································································ 18
■ 양자로 입양된 자가 생부모의 재산을 상속할 수 있는지요? ····················· 19
■ 타인의 친생자로 된 혼인 외의 자가 생모 재산을 상속받을 수 있는 방법이
있는지요? ········································································································ 20
■ 적모와 혼인 외의 출생자, 계모자간에 상속권이 있는지요? ······················ 21
■ 이주자택지공급에 관한 청약권을 자기 상속지분 비율에 따라 단독으로 위
청약권을 행사할 수 있는지요? ····································································· 22
■ 내연녀인 출산하여 친자로 밝혀져서 인지신고하였을 경우 최종상속인은 누
구인지요? ········································································································ 23
2. 상속에 관련된 법제 개관 ··································································· 25
2-1. 민법 ································································································ 25
2-2. 가사소송법 ····················································································· 25
2-3. 민사소송법 ····················································································· 25
2-4. 부동산등기법 ················································································· 25
2-5. 상속세 및 증여세법, 지방세법 및 지방세기본법 ······················ 26
3. 상속 시 체크리스트 ············································································ 26
제2장 상속인은 누가 될 수 있나요?
1. 상속인이란? ························································································· 31
1-1. 상속인의 개념 ················································································· 31
1-2. 상속순위 ·························································································· 32
■ 다음의 경우에 누가 상속인이 될까요? ······················································ 35
■ 아버지를 여읜 아들은 할아버지의 재산을 상속받을 수 있나요? ············ 35
■ 남편의 사망 후에 태아를 낙태한 부인은 남편의 재산을 상속받을 수 있을
까요? ············································································································· 36
■ 민법 제1000조 제1항 제3호 소정의 \"피상속인의 형제자매\"의 범위는 어떻
게 정의하나요? ······························································································· 36
■ 상속에 유리하게 하기 위해 아버지를 속여 유언장을 작성하게 한 아들이
상속을 받을 수 있나요? ·············································································· 37
■ 채무도 상속이 되나요? ·················································································· 37
■ 교통사고로 사망한 사람의 상속인은 교통사고의 가해자에 대해 손해배상을
청구할 수 있을까요? ···················································································· 37
■ 유족연금이 상속재산인가요? ······································································· 38
■ 부의금(賻儀金)이 상속재산인가요? ····························································· 38
■ 어느 시점에 상속이 개시되었다고 보아야 하는지요? ································ 39
■ 생사불명인 직계비속이 재산상속인에서 제외되는지요? ····························· 39
■ 제1순위 상속인이 상속을 포기한 경우 상속순위는 어떻게 되나요? ······ 40
■ 유언없이 죽은 경우 직계비속과 직계존속의 상속순위는 어떻게 되나요? 41
■ 자녀가 있는 경우 직계존속의 상속순위는 어떻게 되나요? ······················· 42
■ 재산상속에 있어서 법정상속인의 상속순위는 어떻게 되나요? ·················· 42
■ 재산상속에 있어서 법정상속인의 상속순위는 어떻게 되는지요? ·············· 43
■ 직계비속과 직계존속의 상속순위는 어떻게 되나요? ·································· 43
1-3. 배우자상속인 ················································································· 44
■ 전 배우자가 사망하여 재혼한 경우 전 배우자의 자녀도 재산상속을 받을
수 있는지요? ································································································· 44
■ 혼인이 취소된 경우 배우자의 상속권은 유효한지요? ································ 45
1-4. 배우자의 공동상속 ·········································································· 46
1-5. 대습상속인 ····················································································· 46
■ 대습상속인의 상속분은 어떻게 계산하나요? ············································· 46
■ 상속인이 될 직계비속이 피상속인과 동시에 사망한 경우에도 대습상속이
이루어지나요? ································································································ 47
■ 시부모님과 남편이 동시사망한 경우 뱃속의 아기가 시부모님의 재산을 상
속받을 수 있나요? ····················································································· 48
■ 대습상속인의 상속분은 얼마나 되나요? ······················································ 50
■ 장인과 처가 동시에 사망한 경우 사위가 장인의 재산을 상속받을 수 있는
지요? ··············································································································· 50
■ 조부의 재산을 사망한 부를 대신하여 상속할 수 있는지요? ····················· 52
■ 대습상속인이 될 배우자가 대습상속의 개시 전에 사망한 경우 상속권은 누
구에게 있는지요? ··························································································· 54
■ 상속인이 될 직계비속이 피상속인과 동시에 사망한 경우에도 대습상속이
이루어지나요? ································································································ 55
■ 상속인이 될 자녀 전원이 피상속인의 사망 이전에 사망한 경우 손자들의
상속분은 어찌 됩니까? ·················································································· 57
■ 본위상속과 대습상속은 재산상속관계는 어떻게 되는지요? ······················· 57
■ 유언서를 은닉한 경우 상속결결사유에 해당하는지요? ······························ 59
■ 피상속인이 사망한지 6개월이 경과한 시점에서 비로소 그 존재를 주장하였
는데 상속결격사유에 해당하나요? ································································ 60
■ 혼인 외의 출생자는 상속자격이 없나요? ····················································· 61
■ 불효자식은 상속을 받을 자격이 없나요? ····················································· 61
■ 시부모에게 연락을 하지 않았다거나 방문을 하지 않았다는 사실은 상속결
격사유에 해당되나요? ··················································································· 62
제3장 상속은 이런 경우 효과가 있습니다
1. 상속재산의 이전 ················································································· 65
1-1. 상속의 효력 - 상속재산의 포괄승계(包括承繼) ·························· 65
1-2. 상속재산 ························································································ 65
1-3. 상속재산이 아닌 것 ······································································ 66
■ 보험금지급청구권은 상속재산인가요? ·························································· 67
■ 공무원의 지위 또는 영업자의 지위과 같은 행정법상 지위도 상속되나요? 68
■ 회사원이 갑자기 사망한 경우 유족연금은 상속재산에 포함되나요? ···· 69
■ 아들부부의 싸움 도중 며느리의 방화로 아들만 사망한 경우 상속권자는
누가 되나요? ·································································································· 69
■ 이혼으로 인한 위자료청구권도 상속이 가능한지요? ·································· 71
■ 제사용 재산을 승계하는 제사주재자를 어떻게 결정해야 하는지요? ········ 73
■ 이성동복(異姓同腹)의 형제자매도 상속인의 범위에 포함되어 토지를 상속
받을 수 있는지요? ························································································· 73
2. 상속인의 상속분 ················································································· 74
2-1. 상속분이란? ··················································································· 74
■ 미혼 동생이 사망한 경우 형제의 상속분은 어떻게 계산하나요? ·············· 74
2-2. 배우자의 상속분 ············································································· 75
2-3. 대습상속인의 상속분 ······································································ 75
2-4. 공동상속인의 상속분 ······································································ 75
■ 다음의 경우에 상속인과 상속분은 각각 어떻게 되나요? ························· 76
■ 아버지가 돌아가시면서 7억을 남겼을 경우 어머니와 저와 동생은 각각 얼
마를 상속받게 되나요? ·················································································· 76
■ 만일 제가 유언 없이 10억 원을 남기고 죽는다면 아들과 아버지에게는
얼마가 상속되나요? ······················································································ 77
■ 부 사망시 모와 자식간의 상속비율이 어떻게 변경되었나요? ················· 77
■ 딸, 며느리와 손녀는 각각 얼마나 상속받을 수 있나요? ··························· 78
■ 할아버지가 막내 아들에게 재산을 전부 주겠다고 하시는데 그렇게 되면
저희 가족은 상속을 받을 수 없게 되는 건가요? ···································· 79
■ 아내와 이혼하지 못한 상태에서 유언없이 사망한다면 저의 재산은 누가
얼마나 상속받게 되는 건가요? ·································································· 80
■ 대습상속인의 상속분은 어떻게 되나요? ······················································ 80
■ 사망에 따른 재산상속분 계산은 어떻게 되는지요? ···································· 81
■ 직계비속의 상속분은 어떻게 되나요? ·························································· 82
2-5. 특별수익자의 상속분 ······································································ 83
■ 특별수익자가 있는 경우 그 상속분은 어떻게 계산하나요? ····················· 84
■ 특별수익의 가액이 상속분을 초과하는 경우에 특별수익자는 이를 반환해야
하나요? ·········································································································· 85
■ 특별수익자는 상속분에서 어떤 주장을 할 수 있나요? ······························ 85
■ 특별수익자가 있는 경우의 상속은 어떻게 분배하나요? ····························· 87
■ 아버지가 돌아가시기 전에 형에게 주택구입자금을 주었을 경우 형은 저는
어떤 비율로 상속해야 하나요? ···································································· 87
2-6. 기여자의 상속분 ··········································································· 89
■ 공동상속인 중 기여자가 있는 경우 상속재산의 산정은 어떻게 하나요? 91
■ 피상속인 재산의 증가에 기여한 상속인의 기여분은 어떻게 판단합니까? 92
■ 기여분과 상속분은 상속이익에 포함되는 범위는? ······································ 93
■ 장남이 재산형성에 기여한 몫이 300만원이 인정되었을 경우 장남의 상속
분은 어떻게 됩니까? ····················································································· 94
3. 상속재산분할 ······················································································· 95
3-1. 공동상속 ·························································································· 95
3-2. 공동상속인의 상속재산분할 ··························································· 96
■ 공동상속인 중 한 사람이 법정상속분을 초과하여 채무를 부담하기로 하는
재산분할의 협의가 가능한가요? ··································································· 98
■ 상속받은 금전채무에 대해서 협의로 분할할 수 있는지요? ······················· 99
■ 공동상속인들은 상속받은 건물을 철거할 의무가 있나요? ······················· 100
3-3. 상속재산 분할의 방법 ································································ 101
[서식] 특별대리인선임 심판청구서(상속재산 협의분할) ······························· 102
■ 상속재산은 어떻게 분할하나요? ································································· 104
■ 상속재산분할협의에 의하여 소유권이전등기가 이루어졌다면, 이 분할협의
는 보호받을 수 있는지요? ·········································································· 105
■ 피상속인의 상속재산으로부터 저의 채권을 우선변제 받을 수 없는지요? 106
■ 상속재산분할의 대상이던 상속재산이 처분되거나 멸실·훼손된 경우 상속
분할의 대상이 되나요? ············································································· 108
■ 금전채권과 같은 예금채권도 상속분할의 대상이 되나요? ····················· 109
■ 상속재산분할협의가 불성립된 경우 상속재산은 어떤 분할방법이 있나요? 110
■ 법정대리인으로서 한 상속재산분할협의가 유효한지요? ·························· 111
■ 상속재산분할협의 행위에 대하여 사해행위 취소를 할 수 있는지요? ···· 112
■ 상속재산분할 후 공동상속인은 담보책임을 지나요? ································ 113
■ 상속재산에 대해 협의가 이루어지지 않는 경우, 공유물분할청구의 소를
제기할 수 있는지요? ·················································································· 114
■ 아들이 대리하여 상속재산 분할협의를 하였을 경우 이 분할협의가 효력이
있나요? ········································································································· 114
■ 상속재산분할협의가 한자리에서 상속인 전부가 모여서 이루어져야 유효한
가요? ············································································································· 115
■ 아버지가 사망하시고 상속재산 중 금전채권이 있는 경우 이 부분에 대하여도
상속인들간에 분할협의를 해야 하나요? ······················································ 115
■ 상속인이 행방불명 또는 생사불명인 경우 분할심판을 청구할 수 있나요? 116
■ 부동산의 가격이 상속개시시와 분할시 사이에 급등을 하였을 경우 상속
재산의 평가시점을 어디로 해야 할까요? ················································ 116
[서식] 상속재산분할협의서 ·············································································· 117
[서식] 상속재산의 분할 심판청구서 ································································· 119
■ 상속재산에 대해 협의분할을 마쳤는데 새로운 상속재산이 나타난 경우
새롭게 상속재산을 협의할 수 있나요? ··················································· 121
■ 상속재산분할협의의 합의해제가 허용되는지요? ···································· 121
■ 아버지가 분할방법의 지정을 유언이 아닌, 생전행위로 하였을 경우 효력
이 있을까요? ······························································································· 122
■ 아버지가 사망하시고 고려기간 중 일부 상속인들이 분합협의를 요구하는
데 이에 응할 의무가 있나요? ··································································· 122
■ 상속재산에 대해 협의분할을 마쳤는데 새로운 상속재산이 나타난 경우
새롭게 상속재산을 협의할 수 있나요? ················································· 123
■ 상속인이 미성년자인 경우 상속재산분할시 주의해야 할 점은 무엇인가요? 123
■ 아버지가 사망하시고 생전에 금전채무가 있는 경우 이 부분에 대하여도
상속인들간에 분할협의를 해야 하나요? ················································· 124
■ 상속인이 미성년자인 경우 상속재산분할시 주의해야 할 점은 무엇인가요? 124
3-4. 분할의 효과 ················································································· 125
■ 상속재산분할의 소급효는 제한되나요? ······················································ 125
■ 상속재산의 분할이 완료된 후에 새롭게 상속인이 된 사람은 상속재산을 분
할청구할 수 있을까요? ·············································································· 127
■ 상속재산의 분할이 채권자에게 사해행위가 되나요? ······························ 128
■ 남편의 아들이라고 주장하는 사람이 나타나서 상가건물 한 채는 자신의 상
속재산이라고 주장하는 경우 어떻게 해야 하나요? ································ 128
■ 상속재산 협의분할을 상속등기 전에 하면 절세가 되는지요? ··············· 129
4. 상속인의 상속회복청구 ···································································· 130
4-1. 상속회복청구권 ··········································································· 130
4-2. 상속회복청구권의 행사방법 ······················································· 130
4-3. 상속회복청구권자 및 상대방 ····················································· 131
4-4. 상속회복청구권의 행사기간 ······················································· 132
4-5. 상속회복청구의 효과 ·································································· 132
■ 상속회복청구권을 침해받은 경우 언제까지 침해의 회복을 청구할 수 있을
까요? ··········································································································· 133
■ 제사용 재산의 승계와 상속회복청구권에 관한 제척기간이 적용되는지요? 134
■ 상속회복청구의 소를 제기하고자 하는데 승소할 수 있는지요? ············· 135
■ ‘상속권의 침해를 안 날’의 의미와 판단기준은 어떻게 되는지요? ········· 136
■ 혼인외의 출생자의 인지에 의한 가액지급청구를 한 경우에도 상속회복
청구권의 제척기간이 적용되는지요? ····················································· 137
■ 상속회복청구권의 상대방이 수인인 경우, 제척기간을 준수해야 하는지요? 138
■ 상속재산 일부에 관하여만 제척기간을 준수한 경우 상속회복청구권을 행사
할 수는 없는지요? ······················································································· 139
■ 상속회복청구의 소는 민사법원과 가정법원 중 어느 법원에 소를 제기해야
하는지요? ······································································································ 140
■ 제3자에 대한 상속회복청구권의 제척기간 기산일은 언제부터 인가요? 140
■ 상속회복청구권이 포괄적 유증의 경우에도 적용되는지요? ····················· 142
■ 상속개시 10년 후 상속권을 침해당한 경우 상속회복청구권을 행사할 수 있
나요? ············································································································· 143
■ 북한주민의 상속회복청구권의 제척기간은 어떻게 계산하나요? ············· 144
■ 중혼이 취소된 경우 상속회복청구권이 인정되는지요? ···························· 145
제4장 상속의 승인·포기는 어떤방법으로 하나요?
1. 상속의 승인ㆍ포기 결정 ·································································· 149
1-1. 상속재산의 조사 ··········································································· 149
1-2. 상속의 승인·포기의 결정 ··························································· 149
■ 상속은 언제까지 포기해야 하나요? ··························································· 150
■ 상속의 한정승인과 상속의 포기의 차이는 무엇인가요? ························ 151
■ 상속재산보다 부채가 다 많은 경우 상속포기를 하면 된다고 하더군요. 상
속포기는 어떤 절차가 필요한가요? ··························································· 152
■ 상속재산보다 부채가 많은 경우에도 상속을 받아야 하나요? ··············· 153
■ 상속재산보다 채무가 많은 경우 어떻게 해야 하나요? ·························· 154
■ 사망자의 생명보험금이 상속포기의 대상이 되는지요? ···························· 155
■ 상속포기서 목록에 상속재산이 누락된 경우 상속포기의 효력이 미치지 않
는지요? ········································································································· 156
[서식] 상속재산포기 심판청구서 ······································································ 158
[서식] 상속포기신고의 취소 심판청구서 ························································· 160
2. 상속의 단순승인 ··············································································· 162
2-1. 상속의 단순승인의 개념 ······························································ 162
2-2. 법정단순승인 ················································································· 162
2-3. 상속의 단순승인 기간 ································································ 162
[서식] 상속승인기간 연장허가청구서 ······························································· 164
■ 상속포기신고를 수리하는 심판이 고지되기 전 상속재산을 처분한 경우 단순
승인이 되는지요? ························································································· 166
■ 상속포기신고를 한 공동상속인이 다른 상속인에게 지분이전등기를 한 경우
단순승인으로 간주되는지요? ······································································ 167
■ 상속재산의 처분이 법정단순승인에 해당하나요? ······································· 168
■ 상속재산 은닉 및 부정소비가 법정단순승인에 해당하는지요? ················· 169
■ 상속재산의 부정소비가 법정단순승인이 되는지요? ··································· 169
2-4. 특별한정승인 기간 ········································································ 170
2-5. 제한능력자의 상속승인 기간 ······················································· 170
2-6. 승인기간의 계산에 관한 특칙 ····················································· 171
2-7. 상속승인의 취소 ········································································· 171
■ 상속승인도 신고기간 내에 신고해야 하나요? ··········································· 172
■ 상속승인의 효과를 되돌릴 수 있나요? ······················································· 172
■ 부모님의 재산을 상속하려고 하는데, 상속승인신고를 따로 해야 하나요? ···· 173
3. 상속의 한정승인 ··············································································· 175
3-1. 상속의 한정승인 ········································································· 175
3-2. 한정승인신고 ··············································································· 175
3-3. 한정승인기간 ··············································································· 177
[서식] 상속한정승인 심판청구서 ······································································ 178
■ 특별한정승인 기간 내에 신고를 하지 못하였을 경우 기간을 놓쳤음을 주장
하여 다툴 수 있는지요? ·············································································· 181
■ 상속재산을 처분한 이후에도 특별한정승인이 가능한지요? ······················· 181
■ 어머니의 빚이 얼마인지 모를 경우 한정승인을 받아야 될까요? ·············· 182
■ 한정승인과 포기를 하여야 할 기간은 언제까지 입니까? ·························· 183
3-4. 한정승인의 효과 ········································································· 184
3-5. 한정승인 후 상속재산의 청산 ··················································· 185
■ 한정승인자의 상속재산청산은 어떻게 이루어지나요? ································ 188
■ 한정승인으로 인하여 물상보증인의 책임에 영향이 있는지요? ················· 189
■ 공동상속인 혼자 한정승인을 한 경우의 법률관계는 어떻게 되는지요? ··· 189
■ 소송에서 한정승인의 항변을 전혀 하지 않았을 경우 강제경매신청의 집행을
저지할 수 있는지요? ···················································································· 190
■ 한정승인을 할 경우 상속채권자가 상속재산에 관해 우선변제권이 있는지
요? ················································································································· 191
■ 남편 빚이 많은데 보험금을 수령해도 될까요? ··········································· 193
■ 한정승인을 하였음에도 고유재산에 대하여 강제집행을 하였을 경우 구제방
안이 있을까요? ····························································································· 193
■ 가정법원에서 경미하여 보정이 가능한 한정승인 신고서를 각하하였을 경우
구제방안이 있나요? ······················································································ 194
3-6. 한정승인의 취소 ········································································· 194
■ 상속승인기간이 지난 후에도 한정승인을 할 수 있나요? ························ 195
■ 한정승인자도 상속세와 취득세를 내야 하나요? ······································· 195
■ 모두 상속포기 신고를 했는데, 며칠 전에 사망자의 손자 앞으로 아버지의 빚
을 갚으라고 소장이 왔을 경우 제 아들이 거액의 빚을 떠안아야만 하는 건
가요? ············································································································ 196
■ 상속하면 빚까지 떠안는다는데 정확한 금액도 모르는 상태에서 상속받아야
하는 건지요? ································································································ 197
4. 상속의 포기 ······················································································· 198
4-1. 상속의 포기의 개념 ······································································ 198
4-2. 포기신고 ······················································································ 198
4-3. 상속포기의 기간 ········································································· 199
4-4. 상속포기의 효과 ········································································· 200
4-5. 상속포기의 취소 ········································································· 201
■ 피상속인이 사망하기 전에 한 상속포기약정은 효력이 있나요? ··············· 202
■ 공동상속인 중 한 사람 만 상속포기를 할 수 있나요? ···························· 203
■ 상속채무만 포기할 수 있나요? ···································································· 203
■ 상속인이 상속을 포기하면 어떻게 되나요? ················································ 203
■ 공동상속인 모두가 상속을 포기하면 상속재산은 누가 상속받게 되나요? ··· 204
■ 사망한 부모의 빚을 물려받지 않을 수 있는지요? ····································· 204
■ 미성년자의 상속포기 또는 한정승인권 행사기간은 언제까지 인정되나요? 206
■ 상속개시 전 상속을 포기할 수 있나요? ····················································· 207
■ 검사를 당사자로 하여 상속포기신고 무효확인청구의 소를 제기할 수 있을
까요? ············································································································· 208
■ 상속포기가 사해행위취소의 대상인지요? ···················································· 209
■ 상속을 포기를 한 경우에도 양도소득세의 납부의무가 승계되는지요? ····· 210
■ 포기신고가 법정의 기간을 경과한 후에 이루어진 경우에, 상속재산을 둘러싼
법률관계는 어떻게 되는지요? ······································································ 210
■ 상속 승인·포기의 철회가 가능한지요? ························································ 211
■ 남편이 사망하여 미성년자인 아들을 대신하여 상속포기를 하려고 합니다. 위
상속포기가 유효한가요? ··············································································· 212
■ 상속포기권을 상속하여 행사할 수 있나요? ················································ 212
■ 상속포기의 이를 주장하지 않은 경우, 승소판결 확정 후 청구이의의 소를 제
기할 수 있는가요? ························································································ 213
[서식] 상속포기(한정승인)기간 연장허가 심판청구서 ···································· 214
제5장
채권자와 특별연고자가 취해야 할 조치는 무엇인지요?
1. 상속재산 분리청구 ············································································ 219
1-1. 상속재산의 분리 ········································································· 219
1-2. 상속재산분리절차 ········································································ 220
1-3. 상속재산분리의 효과 ·································································· 222
■ 8년 간 결혼생활을 하며 취득한 남편명의의 부동산과 교통사고 배상금에
대하여 제가 상속받을 수 있는지요? ························································· 225
■ 사망한 사람의 상속재산을 확인하는 방법으로 무엇이 있나요? ·············· 226
2. 상속인이 없는 경우 ·········································································· 227
2-1. 상속인이 없는 경우에 재산분여절차 개관 ····························· 227
2-2. 상속재산관리인의 선임청구 및 공고 ········································ 227
[서식] 상속재산관리인선임 심판청구서 ··························································· 230
■ 상속재산관리인 선임청구인에게 보수의 예납을 명할 수 있는지요? ······· 232
2-3. 상속인이 나타난 경우 ································································ 235
2-4. 상속인이 나타나지 않는 경우 ··················································· 235
2-5. 최종적인 상속인 수색(搜索) 공고 ············································· 237
[서식] 상속인수색의 공고청구서 ······································································ 239
2-6. 특별연고자가 있는 경우 ···························································· 241
2-7. 특별연고자가 없는 경우 ···························································· 242
■ 사실혼 관계에 있는 배우자는 상속재산에 대해 어떠한 권리도 없나요? 243
제6장 유류분반환청구는 어떻게 해야 하나요?
1. 유류분제도 ······················································································· 247
1-1. 유류분제도의 의의 ········································································ 247
■ 유류분제도란 무엇인지요? ··········································································· 247
1-2. 유류분 권리자의 유류분 ···························································· 249
■ 아버지가 장남 사망 전에 장남의 자녀인 A에게 임야를 증여한 경우, 유류
분산정을 위한 기초재산에 포함된다고 보아야 하나요? ·························· 250
■ 유류분청구를 한 경우 귀속되는 금액은 얼마인지요? ······························· 251
■ 유류분반환청구권을 행사하려고 하는데, 유류분 부족액을 계산하는 방법이
궁금합니다. ································································································· 252
■ 유류분침해를 이유로 반환청구를 할 수 있는 액수는 어떻게 되는지요? 253
2. 유류분반환청구권 ············································································ 253
2-1. 유류분반환청구권 ········································································· 253
2-2. 반환의 상대방 ··············································································· 253
2-3. 청구의 방법 ··················································································· 254
2-4. 반환의 순서 ··················································································· 254
2-5. 반환의 방법 ··················································································· 254
2-6. 반환청구권의 소멸시효 ································································ 255
■ 재산을 모두 고아원에 기부한다는 유언장을 자필로 작성하시고 돌아가셨을
경우, 아무런 재산을 상속받을 수 없는 건지요? ······································ 255
■ 유류분반환청구에 대한 계산은 어떻게 하나요? ······································· 255
■ 공동상속인 중 특별수익자가 있는 경우 유류분청구권의 인정범위는 어떻게
되나요? ········································································································· 256
■ 유증으로 유류분이 침해된 경우 상속인은 어떤 구제방법이 있나요? ···· 258
■ 유류분반환청구권이 채권자대위권의 목적이 되는지요? ·························· 259
■ 유류분반환청구권의 소멸시효는 언제까지 인가요? ·································· 260
■ 제3취득자에 대한 유류분반환청구권의 행사가 허용되는지요? ··············· 261
3. 그 밖의 사항 ··················································································· 261
3-1. 대습상속인의 유류분반환청구권 ················································· 261
3-2. 특별수익자의 유류분반환청구권 ················································· 262
■ 전재산을 혼인 외의 아들에게 물려준 경우 다른 상속인들은 어떤 조치를
취할 수 있을까요? ····················································································· 262
■ 상속재산은 3억원이고 채무는 3천만원인 경우 배우자와 자녀는 얼마의
유류분을 청구할 수 있나요? ····································································· 263
■ 공동상속인 가운데 특별수익자가 있는 경우에 유류분 산정은 어떻게 하
나요? ············································································································· 264
■ 대습상속인도 유류분반환청구권을 행사할 수 있나요? ·························· 266
■ 아버지가 ‘모든 재산을 사회단체에 기부한다’는 유언을 남기고 돌아가셨을
경우 두 형제는 정말 유산을 한 푼도 못 받게 되나요? ·························· 266
■ 전재산인 모두 큰아들인 형에게 준다는 내용의 유언장을 남기고 돌아가셨
을 경우 어머니와 저는 유산을 한 푼도 받을 수 없나요? ·················· 269
■ 자필증서에 의한 유언의 효력은 각서도 인정되는지요? ·························· 270
■ 구수증서에 의한 유언은 어떤 요건이 필요합니까? ·································· 272
■ 공정증서에 의한 유언은 어떤 효력이 있나요? ········································· 273
■ 컴퓨터로 작성한 유언장도 효력이 있나요? ·············································· 273
[서식] 자필증서에 의한 유언증서 ···································································· 274
[서식] 구수증서 의한 유언증서 ········································································ 275
[서식] 유언증서 검인신청서 ·············································································· 276
[서식] 유언증서검인 심판청구서 ······································································ 278
[서식] 유언집행자선임 심판청구서 ··································································· 280
[서식] 유류분반환청구의 소 ·············································································· 282
제7장 상속등기와 세금은 어떻게 처리해야 하나요?
1. 상속등기 ·························································································· 293
1-1. 상속등기 ························································································ 293
1-2. 등기신청을 할 수 있는 사람 ······················································· 293
1-3. 등기신청을 하는 곳 ···································································· 294
1-4. 상속등기 신청방법 ···································································· 294
1-5. 수수료 ·························································································· 296
■ 부동산 매매계약 체결 후 등기 전에 매매계약 당사자가 사망한 경우에는
어떻게 하나요? ·························································································· 296
■ 공동상속인 중에 한 사람이 소재불명인 경우 다른 상속인들이 상속을 원인
으로 등기할 수 있나요? ············································································ 297
■ 공동상속인 중의 일부가 상속재산을 받지 않기로 하는 협의분할에 의한 재
산상속등기가 가능한가요? ········································································ 297
■ 막내가 수년 전부터 행방불명되어 주민등록도 말소된 상태인데, 세 사람의
명의로 빌딩의 소유권이전등기를 할 수 있을까요? ······························ 298
■ 모친이 돌아가신 후 상속재산 중 현재 살고 있는 아파트를 누님에게 몰아
주려고 하는데 절세방안이 있을까요? ························································ 298
■ 매도인이 사망한 때 바로 매수인에게 부동산소유권이전등기 가능한지요? ···· 299
■ 상속인인 매도인에게 소유권이전등기를 경료해줄 의무를 부담하는지요? ···· 301
■ 공동상속인 1인 명의로 소유권이전등기 된 부동산을 되찾을 방법은 없는지요?····· 302
■ 공동상속인들을 상대로 한 등기청구소송은 상대방을 누구로 해야 하는지요?···· 304
■ 공동상속인의 일부가 상속등기에 협력하지 않을 경우 어떻게 해야 하나요? ····· 304
■ 공동상속인 중 주소불명인 자가 있는 경우 어떻게 상속등기를 할 수 있는지요?····· 306
[서식] 소유권이전등기청구의 소(아파트 상속으로 인한) ······························· 309
2. 상속세 ···························································································· 312
2-1. 상속세 부과 및 산정순서 ···························································· 312
2-2. 상속세의 계산방법 ······································································ 313
2-3. 실제 납부액 계산하기 ································································ 319
2-4. 상속세의 납부 ············································································· 321
■ 상속세란 어떤 세금이고, 어떻게 과세됩니까? ·········································· 323
■ 상속세는 언제부터 납부할 의무가 발생합니까? ······································· 324
■ 상속세는 누가, 어디에 신고, 납부하여야 합니까? ································· 325
■ 상속세는 언제까지, 어떠한 서류를 갖추어 신고해야 합니까? ·············· 325
■ 상속세 부담의무자가 여러 명인 경우 각자의 상속세 부담액은 어떻게 되나요? ··· 326
■ 상속세를 납부하지 않으면 어떻게 되나요? ············································· 327
■ 상속세를 내야 하는데 당장 현금화할 수 있는 돈는 경우 상속세를 늦게 내
면 불이익이 있나요? ················································································ 327
■ 상속인이 부인과 자녀 한 명입니다. 상속세로 1천5백만원이 나왔는데 각각
얼마씩 부담하게 되나요? ········································································ 329
■ 세대를 건너 뛰어 손자에게 상속을 하게 되면 상속세는 어떻게 되는지요? ··· 329
■ 상속세비과세 대상인 묘토인 농지에 해당하는지요? ································ 330
■ 묘토인 농지는 상속세비과세 대상으로 알고 있는데, 그 범위를 어떻게 결
정해야 하는지요? ························································································· 331
■ 상속분상당가액지급청구의 경우, 상속세 및 그 가산금과 양도소득세가 공
제되는지요? ·································································································· 332
■ 피상속인의 사망으로 상속재산에서 차감하는 채무란 무엇인가요? ······ 332
■ 상속세를 기한이 지난 후 신고하는 경우 물납이 가능한지요? 또 가산세가
적용되는지요? ···························································································· 333
■ 상속세 물납에 충당하는 재산의 물납신청 및 허가순위는 어떻게 되는지요? ··· 333
■ 상속인이 부인과 자녀 한 명입니다. 상속세로 1천5백만원이 나왔는데 각각
얼마씩 부담하게 되나요? ············································································ 334
■ 상속세 과세표준을 신고 또는 결정을 받은 후 국세기본법 에 따른 후발적
경정청구가 가능한가요? ············································································ 334
■ 금융재산을 사전증여받은 경우 상속세 과세시 금융재산상속공제가 적용되
는지요? ······································································································· 335
■ 사전증여재산만 취득한 손자에게 상속세를 납세의무가 있는지요? ······ 336
■ 상속인이 확정되지 않은 경우 상속세 신고기한은 언제까지 입니까? ·· 336
■ 상속재산으로 보지 않는 재산은 어떤 것이 있나요? ································ 337
■ 이혼조정 성립 후 호적정리 전이라면 배우자로 볼 수 있는지요? ········ 338
■ 상속세 계산시 국외에 있는 재산은 어떻게 평가합니까? ······················ 338
■ 상속ㆍ증여재산인 부동산을 평가할 때, 시가가 없는 경우 어떻게 평가하나요? ···· 339
■ 상속ㆍ증여재산을 평가할 때 시가로 인정되는 것에는 무엇이 있나요? 340
■ 상속세를 계산할 때 어떤 경우에 세액공제를 적용받을 수 있는지요? 340
■ 손자에게 바로 상속을 하면 경우 어떤 불이익이 있나요? ····················· 341
■ 동거하던 주택의 상속공제 요건은 어떻게 되나요? ································ 341
■ 상속재산으로 금융재산과 금융채무가 있는데 금융재산상속공제를 받을 수
있나요? ······································································································· 342
■ 상속세에서 일괄공제란 무엇이며, 공제되는 금액은 얼마인가요? ·········· 343
■ 상속세에서 기타 인적공제는 무엇이 있으며, 어떻게 계산하는지요? ····· 344
■ 영농상속인이 농지 등을 상속받은 경우 영농상속공제를 받을 수 있나요? ···· 345
3. 취득세 ······························································································ 349
3-1. 취득세란? ······················································································ 349
3-2 취득세의 산출 ·············································································· 349
3-3. 취득세의 납부 ············································································· 351
■ 상속의 한정승인을 했는데도 상속부동산에 대해 취득세를 내야 하나요? ··· 353
■ 상속의 한정승인을 했는데도 상속부동산에 대한 취득세를 납부해야 하나요? ··· 353
부 록 : 관련법령 초록(抄錄)
민 법(초) ····································································· 357