With increasing global mobility, cross-border marriages, overseas settlements and asset allocation have become a new norm for many families. In our day-to-day consultations with the law firm, a growing number of clients have asked such questions:
"my mother is from hong kong, china, and has a real estate in beijing since she died. Can i inherit?"
"do we have a foreign family, and can we still have a house in the country after our father's death?"
“when grandpa was in taiwan province, now he's gone, what should he do with his interior house?”
Such succession is far more complex than ordinary succession. This paper will focus on the typical case of “persons living outside china, their main heritage within china” to reveal the real difficulties of cross-border inheritance and how it will be resolved。
I. As long as one of these three situations is foreign inheritance
Many people thought that only foreigners' heritage was foreign, but it was not. According to the law on the application of the law on foreign civil relations, any of the following conditions are applicable to foreign succession:
The heir is a foreign national or a resident of hong kong/australia
The heir is a foreign national or resident of hong kong/australia
The estate is located outside the country or the relevant legal relationship involves foreign law。
Ii. Inheritance is far more difficult than can be imagined, the three most common problems
In the case of foreign succession in the law firm, three of the most frequent problems are summarized:
1. There is insufficient evidence to prove a relative's relationship; offshore kinship, official certificates, death certificates are often not available because of age and lack of documentation, and some national or regional filing systems do not even provide materials in english, not to mention chinese translation and certification, resulting in claims of inheritance。
2. There is confusion in the application of the law, which can give rise to inheritance disputes; for example, our laws provide that the inheritance is inherited by the children on an average basis, but in some regions the inheritance may be inherited exclusively by the spouses; for example, certain wills are valid abroad and are considered invalid in china because they do not conform to the legal form. These differences are not clarified in advance and inheritance is likely to fail。
3. Procedures are cumbersome and costly across borders. “hague authentication + translation of documents + mail of documents” alone could cost several months and tens of thousands of dollars. Added to this are litigation, notarization and transfer, the cost of time and the financial burden are multiplied。
Iii. Problems of problem, don't stand on yourself
As a rule, there are two ways of dealing with foreign succession within the territory:
Form i: notary succession。
This applies to cases where family relations are clear and there is no dispute between heirs. The following shall be submitted to the notary office in china:
• death certificates, kinship, certificates, etc.
• statement of heirs abroad (translation + authentication)
:: the legality of a will also needs to be confirmed。
In particular, a triple certification is required for documents originating from countries other than the hague conventions (the local notary ministry of foreign affairs accredited the chinese embassy or consulate abroad)。
Form ii: succession of the court. This approach applies to cases where the heir is divided, the effects of the will are disputed, and family ties are complex. In order to be able to effectively claim a right, the prosecution should be represented by a professional lawyer and the evidence, the focus of the dispute and the application of the law should be submitted。
Iv. “four sets of cross-border inheritance” by counsel
In response to the complexity of the above, our team, which has had many years of practical experience in handling foreign-related succession cases in beijing, has drawn up four key services to help inheritors to successfully complete their inheritance:
1) follow-up of inheritance: assistance in identifying the attribution and valuation of assets such as property, deposits, shares, etc. In the country
2) preparation of cross-border instruments: preparation of legal documents such as extraterritorial declarations, extraterritorial legal opinions and declarations of renunciation of succession, and completion of bilingual versions and certifications in collaboration with extraterritorial heirs
3) acting notary/litigation: one-stop service to notary offices, courts, property trading centres, banks, etc
4) as estate administrator: in cases where the heir cannot return home, the estate administrator may be appointed by a lawyer to ensure the effective protection and disposal of the estate。
V. Counsel's suggestion: the sooner planning, the less risk
The worst thing to fear about foreign inheritance is that it “can't be done if it's simple”. We recommend, first, that a clear and legal will be entered into as early as possible before being inherited and that it be confirmed as valid under chinese law; secondly, that important documents, asset lists, proof of kinship be collated and kept in custody; and thirdly, that the first contact with a professional lawyer saves considerable time and effort in cases involving identity or assets outside the country。
The yang bar group focuses on the area of inheritance, especially in dealing with difficult issues such as foreign inheritance, complex family relationship inheritance disputes and the coordination of multiple heirs ' interests. Not only are we aware of the civil code, but we are more familiar with the practice of cross-border inheritance and can provide you with a solid legal path。
