How does a foreigner inherit real properties in China?

You may have understood a little bit about how the inheritance/succession law operates in China after reading one of posts here “inherit a real property in China“. I have received a few inquiries on how they should make preparation in order to inherit a house in China. As those questions are quite generic in nature, I summarize the related information for your reference.

Bear in mind that we are talking about inheritance of real properties, including land, houses and apartments, excluding personal properties. Basically, inheritance of real estate means the title of the property will be transfered to the heirs of the deceased, a change of real right in regard of the real estate, or otherwise disposed of for the benefits of the heirs.

1.        Application of Law

As it is a cross-border legal issue, the first question will be which law should be applied in handling the inheritance matter. With the adoption and effectiveness of The Law of PRC on Application of Laws in Foreign-related Civil Relations as from April 1, 2011, it is more clear in regard of application of laws in inheritance matters.

In the case of intestate succession of real estate, the laws of the place where the real estate locates shall apply.

In the case of testate succession of real estate, with respect of the form of will, either the laws of the regular residing place, or the laws of the will-maker’s nationality or the laws of the place where the will is made, at the time of will-making or death of will-maker, shall apply,  and with respect to the validity of the will,  either the laws of the regular residing place, or the laws of the will-maker’s nationality shall apply.

In either cases, the administration and other related matters of the heritage properties (either real or personal) shall be governed by the laws of the place where such heritage properties are located.

Further, where the rights in rem in respect of real properties are involved, the laws of the place where such real properties are located shall govern.

2.        Notarization of Inheritance Right

As mentioned, inheriting a real property in China means that the title deed of the property will pass to the heir by way of effecting title transfer at the local real estate transaction centre where the title deeds of real properties are recorded. To effect the title transfer, one of the most important documents the foreign heir(s) needs to prepare is the notarial deed of right to succession or right to inheritance. Notarization (or legalization, refering to a legal authenticating process), is brought in to ensure the persons are the correct heirs to inherit the properties left by the deceased.

Such notarization on right to inheritance is generally conducted with a notary office in the place of the real properties. To apply for such a notarial deed, the applicant or the heir(s) shall present evidences to prove (1) the death of the deceased, (2) the familial relationship with the deceased (husband-wife, parent-children or other relationship entitled to succeed)  and (3) the title deed of the real property to be inherited.

In the case of testate succession, it is easier to do the notarization by submitting the duly notarized will made by the deceased. It shall be noted that the will made by the deceased shall have to be notarized or otherwise authenticated in accordance with the local laws. Otherwise, Chinese notary office may not be able to issue a notarial deed of right to inheritance, in which case the inheritance will have to be handled at Chinese courts at the place of the real estate.

In the case of intestate succession, the applicant heir shall have to prove that therer are no other heirs or such other heirs have waived their right to inheritance, and if a non-waiving heir has died at the time of succession, the applicant(s) shall also need to submit evidences showing the spouse or children of such dead heir. However given that Chinese notary office has very limited ability and resources to ascertain and verify the heirs of the deceased, generally the notary office will ask the heir(s) to make a written statement that there is no dispute over his right to succession/inheritance, and he or she will take liabilities if later any dispute arises in respect of his or her right to succession.

Notarization of right to inheritance can be done with the assistance of an agent in China so that the foreign heir(s) will not have to come to China themselves. For example, you can entrust a China lawyer to help you with notarization of your right to inheritance. But your power of attorney granted to your agent shall have to be notarized in your home country and authenticated or attested by a Chinese embassy or consulate in your country.

3.        Alternative Way of Disposing of Real Properties before death

It is always a complicated thing to undergo the proceeding for inheriting a real property in China. Alternatively, it is Jason’s suggestion to clients that if possible, clients should make arrangement for disposing of their real properties in a foreign country before death.

For example, the person that is going to expire may choose to pass the title of the real estate to their beloved spouse or children by way of gifting before they die. Or simply, they sell their properties in China and repatriate the sale proceeds to their home countries and ditribute the cash among their beloved ones. Though there will be transaction taxes to be levied, it may be worth doing in light of the hassle and trouble their heirs will have to tackle in order to inherit the properties after their death.

Jason Tian

Jason Tian, specializes in foreign-related legal services ranging from foreign investment in China, banking and capital, real estate, M&A, corporate, international trade, estate planning, inheritance and divorce at his blog: http://www.sinoblawg.com.

27 Comments

  1. nestor yu   •  

    im chinese citizen living here in taiwan, my father left a 5 story building property, which is located in xiamen, zhongshan rd. in mainland china.
    my father died on feb. 5, 1992 in our birth place phillippines
    since he was old and sick ,there is no any will or testament he left behind
    but we have a xerox copy of the land title and we verified that the said property still in the name of my father. we have the death certificate of our father and mother and proof of relationship.
    now, we have a relative in china ,who taking care of the property and having it for rent. we already make a visit but refuse to show us the property document
    can we make a direct claim on china government without any last will
    hope to help us find a way to claim the property of my father .
    thank you very much…

  2. nestor yu   •  

    i;m chinese citizen living here in taiwan, my father left a 5 story building property, which is located in xiamen, zhongshan rd. in mainland china.
    my father died on feb. 5, 1992 in our birth place phillippines
    since he was sick and weak ,there is no any will or testament he left behind
    but we have a xerox copy and death certificate of our father and mother
    now we have a relative in china ,who taking care of the property and having it for rent. we already make a visit but refuse to show us the property document
    can we make a direct claim on china government without any last will
    hope tohelp us find a way to claim the property of my father .
    thank you very much…

    • Jason Tian   •     Author

      Nestor, yes for sure. I think we should not discuss the matter too much here. Please send more information about the property and the family situation. For example, when your father bought the property, whether he was married at the time of purchase, was he married at the time of death, how old he was at the time of death, how many children he had. There will be a lot of work to be undertaken before we can prove your heriship.

  3. Jun Chen   •  

    Hi Jason,

    My name is John and I will interested in getting in touch with you regarding a property in Guangzhou that was owned by my grandmother. She passed away and the property was occupied by my uncle. He also passed away recently. Based on my knowledge the title of the property is still under my grandmother’s name.

    My father’s generation, brothers and sisters, all passed away. Is there anyway I can go about this?

    Thanks,

    • Jason Tian   •     Author

      Hi Jun, yes, let us continue our discussion through the emails.

  4. David Chung   •  

    Hey Jason,

    My name is David I had a inquiry regarding regarding some land that might have been passed down to me from Shenzhen. Please reach out to me via email if you are interested in helping. Thank you!

    • Jason Tian   •     Author

      hi David, i will follow up with email shortly.

  5. Jennifer   •  

    I just wanted to leave a note of appreciation for your help Jason. My family and I are very grateful and appreciative of your help in helping us through our inheritance issue with my father’s property in Shanghai and subsequent sale of the property. Without your help, we would still probably be stuck.
    You guided us through the complicated administrative process but made it relatively easy and uncomplicated for us, and thank you for managing the entire legal process of the inheritance and subsequent sale including liaising with the local authorities and real estate agents. We didn’t know any lawyers in China, so I am really glad that we stumbled upon your blog, and that you have been very helpful, knowledgeable (and able to communicate in English with us :)) and patient throughout the process.
    I would be happy to recommend your services to anyone needing help in this area. All the very best in your future practice!

    • Jason Tian   •     Author

      wow… Jennifer, this is the best surprise I could have received after all this long process of inheritance and sale of the property, much sweeter than the chocolate you bought for my son. I am very happy to know you and let us keep in touch in the future!

      • Jennifer   •  

        Yes, definitely we shall keep in touch! 🙂

  6. Catherine   •  

    My father and mother owns a property in Shenzhen. My mother passed away a long time ago without a will. I was told by my father whom I no longer associate with that without a will her portion of the property will be distributed bewteen me, my brother and her siblings. My father is trying to get us to forfeit our portion so he can make the sale easily and deal with the matter seperately in Hong Kong using solictiors. He is making out that it is really complicated to deal with the chinese government and suggested this is the best option. I do not trust my father, your advice will be much appreciated.

    • Jason Tian   •     Author

      Dear Catherine, yes, you are right to seek independent advice on the issue. I don’t know how much a value the property is, and I suppose it is substantial.

      Please send me in a separate email the details about your inheritance situation: when your parents got married, and when she died, when the property is bought, how many siblings you have, the nationalities of all related persons (your mom, Dad a,d you and your siblings).

      Then I will give you further advice. Also let me have the address of property so I can check out on its value.

      I am currently helping two other foreign clients in dealing with their inheritance in Shenzhen and one of the clients is also from Australia.

  7. Kent   •  

    Hello Jason,

    I inherited a property in Shanghai, it is an office space. I have already gone through the title transfer and the property is now in my name. My question is, me being an American citizen, is there a time limit that I can be the owner of this property before I need to sell it (like 2 or 3 years max) or am I legally allowed to hold on to it for as long as I need before I can sell it? The reason I ask is because we’ve been trying to sell it but apparently with many new recent regulations, there haven’t been many buyers so I will probably have to hold on to it for at least a couple of years. The property has been in my name since June of 2015. Your feedback is much appreciated!

    • Jason Tian   •     Author

      Kent, you are allowed to keep it as long as you wish. In addition, you can rent it out. Yes, the market is not very active recently. However if you can sell it, you may not want to keep it for long since it is very likely that there won’t be much room for rise if not collapse. In either case, I would be glad to help on the sale or management of your property. As for management of the property, we can help you to lease it to tenants on good leasing terms ensuing you will be in upper hand if anything goes wrong. We will also help you to repatriate the lease proceeds out of China to your home country.

  8. Lynette   •  

    Hi Jason,

    Can you please assist me with regards to inherating property in china (Dai Dun). I am form South africa and My Grandfather left a document stating that the proprtties must be shared amoung his five children. I am not sure if this is a leagal will.
    My grandfather and all his children have all passed away many years back. I have found some of my cousins in China which are the rightfull decendants to my grandfather and we are all in co-operation that the property should be shared amoung his grandchildren. we do not have any title deeds but the cousins in china says the properties still exsist. There is currently a housekeeper at one one the properties taking care of the place and apparently he has a copy of the title deeds but wont release them to us.

    Regards

    lynette

    • Jason Tian   •     Author

      Lynette, can you please go further to tell the details of the matter? When did your grandfather die? At the time of death, his marital status? when was the property bought? It seems a very complicated case with so many year back and so many grandchildren involved. I cannot help much unless i know the details. I will be sending you a request for information and then you can provide those information as requested.

  9. Yuli Chew   •  

    My grandfather have several ancestor houses and farm land in Yongchun, Fujian, China. We had limited contacts since 1949. We have a deed for a house and 4 pieces of land, the rests are only listed in the correspondence. I am an US citizen now and many of my cousins are in Malaysia. My questions are: 1) Do you have an associate legal firm in Yongchun that can help evaluate our case? 2) Can you recommend a title search company?

    • Jason Tian   •     Author

      we don’t have an office in Yongchun. Actually there is no such a thing called “title search company” in China. do you have any relatives living there who can testify in your favor? I am afraid your story is too far away back in history that may bear no fruit today. You can send me a copy of the title deed for a look.

  10. Ho Sai Chong   •  

    Jason Thank you. Whatever information I have have been given to you. I am from Malaysia Regards

  11. Ho Sai Chong   •  

    My grandpa owned a house in Nanha which was looked after by a distant relative who is since deceased. A check with the land authority recently reveals that the house is now registered in the name of the deceased. An attempt was made to transfer the house to someone some time back was refused as the Village Head and the villagers know that the house was owned by my Grandpa. It also reveals that there was a registration exercise in the eighties when the government officials asked the deceased whether the house beloned to him and he said yes and hence the house was registered in his name. I do not have the title deed and the house remained in its original condition. Plesae advise how do I go about claiming the house. Thank you.

    • Jason Tian   •     Author

      Hi there, where is the Nanha? in which part of China mainland? Is your grandpa still alive? What do you have to prove that the property is your grandpa’s? It is in a rural village? I need much more information in order to advise you on that. You should take action quickly to prevent the fake owners’ heirs from inheriting the property. Otherwise, it will be much more difficult to take back the property.

      • Ho Sai Chong   •  

        TQ My grandpa died many many years ago. His house is at Guangdong Nanhai Yimpo Loke Village. The title deed is no longer available but the villagers can be witnesses that the house belonged to my grandpa.

        • Jason Tian   •     Author

          Does that house still stand there? who is taking care of it? For many village house, there are no titles at all.

          • Ho Sai Chong   •  

            The house is still in its orginal condition and locked. I have checked with the land authorities who informed me that it is now registered in my grandpa’s keeper name. He attempted to transfer the house some years back but was objected to by the then Village Headman who knew that the house belonged to my grandpa. Even the Ancestor’s Tablet of my Grandpa is still found in the house. Thank you.

          • Jason Tian   •     Author

            Hi Ho Sai Chong, please write to me via my email and gather all information you have come to know and share it with me. I will help you to see whether you are having a good case. Where do you come from?

  12. Phil   •  

    You mention it would be best to make a donation of the real estate property before the person passes away. What is the Law on donation in China? What principles apply?

    What happens if there are two heirs of the same rank ? Can the deceased still give his house in full to one of the heir and exclude the other heir?

  13. Pingback: Clarification on two points regarding China inheritance law | China Lawyer in Shanghai

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