Analysis of foreign-related inheritance methods and application of law
【Zhuhai lawyer, Zhuhai legal consultation, Zhuhai law firm, Jingshi law firm, Jingshi Zhuhai law firm】
Special statement: This article is reprinted from Beijing Jingshi (Shenzhen) Law Firm
Authors: Zhao Baolian, Cheng Pangyue, Chen Zhuoqi
In recent years, with the increase of transnational marriages, cross-border immigration and cross-regional asset allocation, there has been an increasing number of foreign-related and Hong Kong-related inheritance cases in mainland China. Since foreign-related inheritance cases often involve the legal systems of different countries and regions, when handling foreign-related inheritance cases, lawyers need to accurately understand and grasp the relevant legal provisions, especially the determination of foreign-related inheritance legal relations, the legal provisions of Chinese law on foreign-related inheritance, and the inheritance methods of foreign-related inheritance in specific practice.
This article will analyze the rules and judicial practice related to foreign-related and Hong Kong-related inheritance cases, and analyze the understanding and application of foreign-related inheritance legal norms in practice based on actual cases, so as to provide reference for legal practitioners when dealing with such cases.
When handling foreign-related inheritance cases, it is first necessary to correctly determine the legal relationship of foreign-related inheritance. The determination of the legal relationship of foreign-related inheritance in mainland China is mainly based on the following criteria: First, when one or both parties are foreign citizens, stateless persons, or residents of Hong Kong, Macao and Taiwan, they can be recognized as foreign-related inheritance. Second, if the habitual residence of the parties is outside China, or the subject matter of the inheritance is located abroad, it can also be determined as a foreign-related inheritance relationship. In addition, if the legal facts of the creation, alteration or extinction of the inheritance legal relationship occur outside China, such as when the will is made overseas or the decedent dies abroad, the inheritance legal relationship will also be regarded as foreign-related.
In practice, the determination of the legal relationship of foreign-related inheritance also involves specific circumstances such as the subject being foreign-related, the estate being foreign-related, and the legal facts related to inheritance being foreign-related. For example, foreigners, stateless persons, overseas Chinese, and Chinese citizens with overseas green cards may become heirs or decedents in foreign-related inheritance cases, which may lead to foreign-related inheritance issues. In addition, if the location of the estate is outside China, the inheritance legal relationship shall be regarded as a foreign-related legal relationship, regardless of the nationality of the heir or decedent. For such cases, in addition to the application of the corresponding Chinese law, it is also necessary to choose to apply the law of the decedent or the decedent's habitual residence, the law of the country of nationality or the law of the place where the principal property is located according to the actual situation. Finally, in the process of dealing with legal facts related to inheritance in foreign-related inheritance, such as making a will abroad or the decedent dying abroad, it is necessary to pay special attention to the identification of disputed issues, the identification of foreign laws, the application of applicable law and the determination of the validity of wills. Due to the differences in the legal systems and cultural practices of different countries, various legal collision points may arise in foreign-related inheritance cases, so it is necessary to flexibly apply legal principles while applying the law to ensure the smooth resolution of the case.
According to the provisions of the People's Republic of China Civil Code and the Law on the Application of Laws to Foreign-related Civil Relations in People's Republic of China, the law of the place of residence of the decedent at the time of death shall apply to the inheritance of movable property in foreign-related inheritance cases, while the law of the place where the immovable property is located shall apply to the inheritance of immovable property. The establishment, validity and interpretation of a will can be governed by the law of the place where the testamentary act is made, the law of the domicile of the decedent at the time of the testamentary act, the law of the country of nationality or the law of the place where the principal property is located.
In the process of handling foreign-related inheritance, whether it is statutory inheritance or testamentary inheritance, as long as all parties agree on it, notarized inheritance can be carried out smoothly. This method is usually suitable for situations where the heirs have a good foundation of trust, smooth communication, and clear ownership of the estate.
The specific steps for foreign heirs to apply for notarization of inheritance rights with the notary public in their home country are as follows:
1. The foreign heir shall apply for a notarial deed to the notary public of his home country: The foreign heir shall apply for a notarial certificate related to inheritance at the notary public of the country where he is located to ensure that the inheritance relationship is recognized by the laws of the country.
2. Notarization and authentication or endorsement of additional certificates: If the country where the foreign heirs are located is a member of the Hague Convention (China has officially become one of the signatories of the Hague Convention since November 7, 2023), the notarization and authentication procedures can be simplified by apostilling the additional certificate.
3. The foreign heir shall apply for a notarial certificate of inheritance at the notary public where the estate is located: The heir shall apply for a notarial certificate of inheritance at a notary public in China to confirm the legal inheritance relationship of the estate and obtain the recognition of Chinese law.
4. Handle the transfer of property or receive property with the notarial certificate of inheritance: the heir can go to the relevant department to handle the transfer of real estate with the notarial certificate of inheritance, or go to the bank to withdraw the inherited funds.
5. Purchase foreign exchange and remit inherited property: Finally, the heir purchases and remits the inherited property to the country where it is located in accordance with China's foreign exchange management regulations.
In practice, the documents to be prepared by the heirs include:
Identity certificate, kinship certificate, death certificate of the decedent, estate house ownership certificate, estate list, marital status of the decedent and relevant supporting materials of family members. If you are a testamentary heir, you also need to provide a valid will.
All heirs can apply for a certificate of inheritance directly at a notary public in China, in which case the kinship between the foreign heir and the decedent must be notarized and authenticated abroad, and the will in the foreign language must be translated by a qualified translation agency and authenticated by a notary office. In addition, unlike Hong Kong lawyers, in Chinese mainland, most of the work of notarial succession is done by notaries, who may need to issue legal opinions if they need the assistance of mainland lawyers. For complex asset situations, such as historical property issues or other asset issues, a lawyer needs to be involved to ensure the legitimacy and smoothness of the inheritance process. After the Civil Code comes into effect, a lawyer can also act as an estate administrator under certain circumstances.
In short, as long as there is no dispute between the heirs, whether it is testamentary inheritance or statutory inheritance, it can be done through notarized inheritance. Although the situation of foreign-related inheritance is complex, as long as all parties can reach a consensus and the ownership of the assets is clear, an appropriate path can always be found to complete the inheritance. However, if there is a defect in the ownership of the assets, or in special circumstances such as holding the property on behalf of the company, it is necessary to resolve it through other legal means.
In foreign-related inheritance litigation, the first thing that needs to be determined is whether the case falls within the jurisdiction of the Chinese court. According to Article 34 of the Civil Procedure Law of the People's Republic of China, when the estate is immovable property, the lawsuit shall be filed with the court where the immovable property is located; On the other hand, if the estate is movable, the lawsuit shall be brought in the court of the place where the decedent is domiciled at the time of his death or the court where the principal estate is located. It is only after the jurisdiction of the court has been determined that the specific application of the law is involved. In this process, the lawyer needs to determine whether the applicable law is Chinese law or whether it is necessary to apply the law of other relevant countries according to the specific circumstances of the foreign-related inheritance case.
Through the analysis of actual cases, we can better understand and apply the legal provisions in foreign-related litigation succession. The following is a detailed discussion of the application of law and judicial practice in foreign-related inheritance through two cases.
Case 1: Testamentary succession disputes
Mr. Lee, a Hong Kong resident, divorced his wife in Hong Kong 20 years ago and settled in Shenzhen and remarried Ms. Xu in the mainland. Ten years after the marriage, Mr. Li passed away, leaving behind a batch of real estate in Shenzhen, and made a will to leave all the real estate to Ms. Xu. However, Mr. Lee's children in Hong Kong challenged the Will and filed a lawsuit.
In this case, the first thing that needs to be determined is the question of the jurisdiction of the case. Since Mr. Li died in Shenzhen, which was both his residence at the time of his death and the location of his immovable property, the Shenzhen court had jurisdiction over the case under article 34 of the Civil Procedure Law of the People's Republic of China. The core controversy in the case then was the validity of the will. According to mainland law, testamentary succession takes precedence over statutory succession, and the estate can only be dealt with according to a will if the will is valid. Pursuant to Articles 32 and 33 of the Law on the Application of Laws to Foreign-Related Civil Relations, the form and effect of a will shall be governed by the law of the testator's habitual residence at the time of making the will or at the time of death, the law of the country of nationality or the law of the place where the testament is acted. In this case, Mr. Li's Will was made in accordance with the laws of Chinese mainland, so the validity of the Will will will be reviewed and adjudicated in accordance with Chinese law.
Case 2: Mr. A's cross-border inheritance dispute
Mr. A, an Israel citizen who has lived in Shenzhen for many years, controls a Shenzhen company and a Hong Kong company, has a wife and children in Israel, and has a live-in girlfriend and a son in Shenzhen. After his death, inheritance disputes arose due to inheritance involving domestic and foreign estates.
First of all, Shenzhen, as the domicile of Mr. A at the time of his death, the Shenzhen Longhua District Court had jurisdiction over the inheritance case. Secondly, it is necessary to check whether Mr. A has left a valid will. According to the investigation, Mr. A had discussed the issue of the will, but the will was only stored in the computer and was not signed. According to Article 33 of the Law on the Application of Laws to Foreign-Related Civil Relations, the validity of a will shall be governed by the law of the place of habitual residence or the law of the country of nationality at the time of the will or at the time of death. Since the will does not meet the legal form of the will, it is judged to be invalid, and the inheritance procedure needs to be carried out in accordance with the statutory succession. Before legal succession, it is first necessary to clarify whether Mr. A's estate in China is the joint property of the husband and wife. According to Article 24 of the Law on the Application of Laws to Foreign-Related Civil Relations, the parties may choose the applicable law for the property relationship of husband and wife. In the absence of a clear choice and no place of common residence, the law of the State of common nationality, i.e. the law of Israel, shall apply. Eventually, according to ascertained Israel law, half of Mr. A's domestic assets belonged to the joint property of the husband and wife, and the remainder was an inheritance. The case also involved the complex issue of foreign law identification. The Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of the Law of the People People's Republic of China's Republic of China on the Application of Laws to Foreign-Related Civil Relations (II) clarifies the path for courts to ascertain when applying foreign laws. In this case, the relevant law of Israel was ascertained through the lawyer's channel, and the court first determined the inheritance portion of the marital property after the division of the property under that law.
As to the issue of succession of the Hong Kong company, due to the differences in the judicial systems of the two places and the jurisdictional limitations of the courts, the lawyer suggested that the lawyer should file litigation in Hong Kong and Shenzhen at the same time to deal with the inheritance of assets in the two places. In addition, whether the illegitimate child born to Mr. A and his girlfriend in Shenzhen has the right to inherit is also a point of issue in this case. Under Chinese law, illegitimate children have the same inheritance rights as legitimate children. As for how to determine the paternity of the child, it is necessary to provide sufficient evidence to prove it, and there has been a precedent of a Hong Kong court in which the judge finally confirmed the paternity of the illegitimate child and determined that he had the right to inherit by verifying the records of the Hong Kong Births and Deaths Registry and the entry and exit records.
Through the above cases, it can be seen that the complexity of foreign-related inheritance cases is mainly reflected in the following aspects:
1. Identification of the issue in dispute:
In foreign-related inheritance, the legal and cultural backgrounds of different countries may lead to legal conflicts. In the application of law, the mainland adopts the principle of the law of the forum, that is, according to Article 8 of the Law on the Application of Laws to Foreign-related Civil Relations, the law of the forum shall apply to the characterization of foreign-related civil relations.
2. Identification of foreign laws:
The ascertainment of foreign laws is a key issue in the handling of foreign-related cases. According to Article 10 of the Law on the Application of Laws to Foreign-Related Civil Relations, the foreign laws applicable to foreign-related civil relations shall be ascertained by the people's courts, arbitration institutions or administrative organs. Where a party chooses to apply the law of a foreign country, it shall provide the law of that country. In cases where the foreign law cannot be ascertained or is unclear, the Chinese law shall apply.
3. Application of Governing Law:
The choice of applicable law should follow the principle of having the closest connection with foreign-related civil relations, and determine the most appropriate legal basis according to the specific circumstances.
4. Validity of the Will:
The validity of a will shall be judged in accordance with the law of the testator's habitual residence at the time of making the will or at the time of death, the law of the country of nationality or the law of the place where the testament was acted. At the same time, the application of law should follow the principle of closest connection and respect the autonomy of the testator when making the will.
With the integrated development of the Greater Bay Area, cross-border investment and transnational marriage in Shenzhen are increasing, which will lead to more and more foreign-related inheritance problems. However, due to the differences in laws and regulations, social backgrounds, historical traditions, religious beliefs, etc., the handling methods related to foreign-related inheritance are different, and it is necessary to comprehensively consider all aspects of the legal relationship of foreign-related inheritance and the applicable laws to effectively protect the legitimate rights and interests of the parties.
About the Author:
Lawyer Zhao Baolian
Director of the Import and Export Legal Affairs Department of Beijing Jingshi (Shenzhen) Law Firm, Master of Laws, his main practice interests are foreign-related litigation and arbitration, legal affairs of foreign investment and foreign investment of domestic enterprises, and legal support for foreign trade business.
Cheng Pangyue
He holds a Juris Doctor degree from the National University of Singapore, an International Fox Fellow at Yale University, and a visiting scholar at the Faculty of Law of the University of Hong Kong and the Faculty of Law of the City University of Hong Kong.
Chen Zhuoqi
Assistant to the Director of the Import and Export Legal Affairs Department of Beijing Jingshi (Shenzhen) Law Firm, a student of Wuzhou University, currently studying in the Law School, majoring in international economic and trade rules, and a member of the international economic, trade and legal research class of Wuzhou University.