Foreign inheritance is no longer difficult
创建于2024.08.22
The number of cases involving overseas Chinese and domestic residents inheriting domestic and foreign estates has been increasing year by year.
case
Mr. Wang and his wife are both Chinese nationals, and they have three children together, namely Wang Dali, Wang Xiali, and Wang Meimei (all pseudonyms). Due to Mr. Wang's long-term involvement in cross-border financial work, he has invested in some overseas assets such as real estate in the United States and financial insurance in the United States. After their three children reached adulthood, Wang Dali went to work and live in Australia and obtained Australian citizenship. Wang Xiali obtained a green card in the United States and settled there, but has not obtained U.S. citizenship and remains a Chinese national. Wang Meimei has been living with her parents in China.
The couple Wang each left two wills before they passed away in China. Will 1 was written by the couple during their visit to Australia, stating that a certain house in Haidian District, Beijing, under the names of Wang Dali and Wang Xiali, would be jointly inherited. Will 2 was written by the couple domestically, stating that the financial insurance and a certain house in the United States would be inherited by Wang Meimei.
The above case involves many foreign-related legal relationships.
How can foreign Chinese or overseas residents inherit domestic Chinese assets?
How can Chinese citizens inherit overseas estates?
Effectiveness of Foreign Wills?
Let's talk about the issues related to foreign inheritance.
What is foreign-related inheritance?
The Supreme People's Court's Interpretation of the Application of the Civil Procedure Law of the People's Republic of China stipulates in Article 522: If one of the following situations occurs, the people's court may determine it as a foreign-related civil case:
（一）One or both parties are foreigners, stateless persons, foreign enterprises, or organizations.
（二）When one or both parties have their habitual residence outside the territory of the People's Republic of China.
The subject matter is outside the territory of the People's Republic of China.
The legal facts that give rise to, change, or terminate civil legal relationships occur outside the territory of the People's Republic of China.
(5) Other situations that can be identified as foreign-related civil cases.
In this regard, as long as the inheritance legal relationship involves foreign elements, such as the subject being foreign, the object being foreign, or legal facts related to inheritance being foreign, it is considered a foreign-related inheritance case.
Subject Involved in Foreign Affairs
How overseas Chinese or foreigners inherit domestic inheritance in China
The meaning of "华侨与外国人的含义不同" is different for overseas Chinese and foreigners.
Overseas Chinese refers to Chinese citizens who have settled abroad, where "settled" means that Chinese citizens have obtained long-term or permanent residency in the host country and have resided continuously in the host country for two years, with a cumulative stay of no less than 18 months within two years.
Chinese citizens who have not obtained long-term or permanent residency in the host country, but have obtained legal residency for more than 5 consecutive years in the host country, and have accumulated no less than 30 months of residency in the host country within 5 years, are considered overseas Chinese.
Chinese citizens studying abroad during their studies or working abroad for official business are not considered overseas Chinese.
Foreigners refer to those who do not have Chinese nationality according to the Nationality Law of the People's Republic of China. Although overseas Chinese have Chinese nationality, they are also considered as foreign-related cases due to their settlement abroad.
The ways for foreign entities to inherit domestic Chinese assets
There are generally two ways for overseas Chinese or foreigners to inherit domestic assets in China, namely notarized inheritance and litigation inheritance.
Notarized Inheritance
Foreign entities inherit domestic assets in China, and heirs can inherit them by applying for a foreign inheritance notarization. At this time, overseas Chinese or foreigners need to apply to the notary authority of the country of residence for the notarization. Generally speaking, the materials required for foreign inheritance notarization include the following:
After the notarization certificate is authenticated, the heir can bring the notarization certificate to the notary office in the location of the inherited property to apply for the house inheritance certificate, and after obtaining the certificate, they can proceed to handle matters related to the inheritance and transfer of ownership at the housing management department in the location of the property.
Litigation inheritance
If overseas Chinese or foreigners have disputes over inheriting property within China, they can resolve them through litigation in the People's Court.
(1) Lawsuits arising from real estate disputes shall be under the jurisdiction of the people's court in the location of the real estate; (3) Lawsuits arising from inheritance disputes shall be under the jurisdiction of the people's court in the deceased person's domicile at the time of death or the location of the main inheritance.
The inheritance of immovable property, such as houses, is under the jurisdiction of the people's court of the domicile of the immovable property. The inheritance of movable property, such as deposits, cars, valuable items, etc., is under the jurisdiction of the people's court of the domicile at the time of the deceased or the location of the main inheritance property.
After determining the jurisdictional court, it is necessary to determine the applicable law through conflict rules guidance. In the litigation of inheritance disputes in China, the applicable law for foreign inheritance should be determined according to the "Law on the Application of Foreign Civil Relations of the People's Republic of China".
In the above case, if Wang Dali and overseas Chinese Wang Xiaoli, as foreigners, have a dispute over inheriting a house located in China, they have the right to sue in the people's court where the house is located and apply Chinese law.
Unlike the policy restrictions on overseas individuals buying houses in China, although the two parties are foreign-related, their inheritance rights to real estate in China will not be affected by their different identities. Chinese law fully protects their inheritance rights and property rights.
Subject of Foreign Affairs
How can Chinese citizens inherit overseas estates?
Chinese citizens inheriting overseas estates must comply with the relevant laws and regulations of the country where the estate is located if they choose a non-litigation approach.
If the inheritance is located in a country that has relevant international treaties with our country, a similar notarized inheritance procedure can be applied for in our country's notary office, and the inheritance notarization involving foreign affairs can be applied for and authenticated by the resident embassy or consulate of the country where the inheritance is located. If the country where the inheritance is located requires inheritance tax, the relevant inheritance tax should be declared and paid first.
If the heir has a dispute over the inheritance of overseas assets and chooses to initiate legal proceedings, it is necessary to distinguish between real estate and personal property for handling.
According to the provisions of the Civil Procedure Law of our country, lawsuits arising from real estate disputes shall be under the jurisdiction of the people's court where the real estate is located. Article 31 of the Law of the People's Republic of China on the Application of Law to Foreign-related Civil Relations stipulates: "For statutory inheritance, the law of the habitual residence of the deceased at the time of death shall apply, but for statutory inheritance of real estate, the law of the location of the real estate shall apply."
Due to the exclusive jurisdiction and legal application of real estate, when the inheritance involves overseas real estate, it shall be under the jurisdiction of the court where the real estate is located, and the law of the place where the real estate is located shall apply.
For inheritance of movable property overseas, according to the above provisions, if the deceased person's habitual residence was in China at the time of death, Chinese courts have jurisdiction over and apply Chinese law to the deceased's movable property overseas.
The inheritance involved in Will 2 in the above case includes financial insurance and a house owned by Mr. Wang and his wife in the United States. As for the inheritance of the house, the laws of the location of the real estate shall apply. However, for the financial insurance, since the deceased Mr. Wang and his wife were residing in China at the time of death, Chinese courts have jurisdiction over the property and will apply Chinese law.
Facts of foreign-related laws related to inheritance
How does the heir inherit the will made by the heir overseas?
For wills made overseas, if they are determined to be valid by the local statutory authorities, notarized locally, and authenticated by the Chinese embassy or consulate, China may recognize the validity of the will in accordance with relevant international treaties, except for wills that violate Chinese laws.
If a dispute arises over a will made overseas and litigation is brought before a court in China, the first step should be to "identify" the issues in dispute over the will in question, that is, to determine the nature of the relevant facts in the case in order to determine which conflict rules to invoke to establish the applicable law.
In the above case, Mr. and Mrs. Wang in Australia made Will 1. If the heirs raise objections to the form and validity of Will 1, the governing law to be applied shall be determined in accordance with Article 32 and Article 33 of the Law of the People's Republic of China on the Application of Law to Foreign-Related Civil Relations: "If the form of the will complies with the law of the habitual residence of the testator at the time of making the will or at the time of death, the national law, or the law of the place where the will was made, the will shall be valid. The effectiveness of the will shall be determined by the law of the habitual residence of the testator at the time of making the will or at the time of death, or by the national law."
In the above case, Mr. and Mrs. Wang are Chinese nationals, and their habitual residence at the time of death was also in China, so the issues regarding the form and validity of Will 1 are governed by Chinese law.
The provisions of our country on foreign evidence in foreign-related inheritance.
Article 16 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation (2019 Amendment)" stipulates: "If the documentary evidence provided by a party is formed outside the territory of the People's Republic of China, the evidence shall be certified by the notary authority of the country where it was formed, or the relevant procedures specified in the treaties concluded between the People's Republic of China and that country shall be followed. Evidence concerning identity relationships formed outside the territory of the People's Republic of China shall be certified by the notary authority of the country where it was formed and authenticated by the Chinese embassy or consulate in that country, or the relevant procedures specified in the treaties concluded between the People's Republic of China and that country shall be followed. Evidence provided by a party to the people's court formed in Hong Kong, Macao, or Taiwan shall follow the relevant certification procedures."
Article 16 of the above-mentioned new rules on evidence has been modified compared to the 2001 "Rules on Evidence".
Before the implementation of the new evidence regulations, all evidence formed outside the jurisdiction in judicial practice must be notarized by the notary authority of the country where it is located and authenticated by the Chinese embassy or consulate in that country or go through the procedures stipulated in the treaty. Although this practice avoids the risk of the court determining the authenticity of evidence formed outside the jurisdiction, it may bring many cumbersome and inconvenient procedures to the parties. Therefore, the revised new evidence regulations in 2019 have made corresponding modifications to this.
① Documents and certificates formed outside the territory need to be notarized.
Although the documentary evidence formed outside the territory still needs to be certified by the notary authority or comply with treaty procedures in the country where it is located, the change compared to the "Evidence Regulations" in 2001 is that this documentary evidence no longer needs to be authenticated by the Chinese embassy or consulate in that country, and can be used as evidence after notarization.
It should be noted that the "power of attorney" formed outside the territory must comply with the relevant provisions of Articles 263 and 264 of the Civil Procedure Law of China. That is, if a foreigner files a lawsuit or responds in a people's court and needs to appoint a lawyer to represent the litigation, they must appoint a lawyer from the People's Republic of China.
The authorization letter sent or entrusted from outside the territory of the People's Republic of China shall be certified by the notary authority of the country where it is located and authenticated by the Chinese embassy or consulate in that country, or shall be effective only after the relevant procedures specified in the treaties concluded between the People's Republic of China and that country have been fulfilled.
② Evidence of identity relationships formed outside the territory shall be notarized and certified.
Due to the identity relationship is not applicable to self-recognition, cannot rely on the parties' evidence and cross-examination, so foreign evidence involving identity relationships should be strictly reviewed and carefully determined.
Therefore, evidence involving identity relationships formed outside the territory still needs to go through two procedures simultaneously, namely certification by the notary authority of the country where it is located or compliance with treaty procedures, and also authentication by the Chinese embassy or consulate in that country.
Evidence of civil and commercial legal relations outside the territory does not need to be notarized or certified.
The evidence of ordinary civil and commercial legal relationships formed outside the territory mainly involves the determination of rights and obligations between the parties. The authenticity of the evidence can be confirmed by the burden of proof and cross-examination procedures in litigation, without the need for notarization or certification procedures to increase the burden of litigation and procedural complexity for the parties.
Source/Beijing First Intermediate People's Court Author: Wu Yangxin
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