In my previous article, we discussed how foreign nationals and overseas Chinese may inherit estates located in China, with a particular focus on intestate succession, namely succession in the absence of a will. In practice, however, a more complex situation often arises: the deceased left a will, and the will may have been executed outside China while purporting to dispose of real estate, bank deposits, equity interests, or other assets located within China.

Can a foreign will be used in China? Must Chinese real estate be distributed strictly in accordance with China’s statutory rules on intestate succession? Should the heirs proceed by notarization or by litigation? This article addresses the key issues concerning testamentary succession to estates located in China.

Question 1: If the deceased left a will, does intestate succession still apply?

Where the deceased left a valid will, the estate should generally be administered and distributed in accordance with the will. Intestate succession applies only where the will is invalid, partially invalid, or does not dispose of certain assets.

Accordingly, in a testamentary succession case, the first question is not the statutory order of heirs or the statutory shares under Chinese law. The first question is whether the will is genuine, valid, and legally effective, and whether it covers the relevant assets located in China.

Question 2: Can a will executed outside China be used to inherit assets located in China?

A will executed outside China is not automatically invalid or unusable in China.
In cross-border testamentary succession, Chinese law does not simply require that the will comply with the formalities prescribed by the Civil Code of the People’s Republic of China. Under China’s conflict-of-law rules, the form of a will may be regarded as valid if it complies with any one of the following laws: the law of the testator’s habitual residence at the time the will was made, the law of the testator’s habitual residence at the time of death, the law of the testator’s nationality, or the law of the place where the will was made.

For example, if the deceased executed a will in the United States, Canada, Australia, the United Kingdom, Singapore, or another jurisdiction, and the will satisfies the formal requirements of that jurisdiction, it should not be rejected solely because it does not take one of the will forms commonly recognized under Chinese domestic law, such as a holographic will, a witnessed will, or a notarised will.

That said, for a foreign will to be used in China in practice, the relevant documents will normally have to go through notarization, authentication, apostille, or equivalent certification procedures, and a Chinese translation will usually be required.

Question 3: Which law governs the validity of a foreign will?

The formal validity of a will and the substantive validity of a will are two separate issues.
Formal validity concerns whether the will was properly made as a matter of form, for example whether it was signed, witnessed, notarised, or otherwise executed in accordance with the applicable law.

Substantive validity concerns whether the will can produce legal effect, for example whether the testator had testamentary capacity, whether the testator’s intention was genuine, whether the contents of the will are valid, whether the will purports to dispose of property belonging to others, and whether the will violates any mandatory rules.

Under China’s conflict-of-law rules, the validity of a will is governed by the law of the testator’s habitual residence at the time the will was made or at the time of death, or by the law of the testator’s nationality.

Therefore, if the deceased was habitually resident abroad at the time of death, or had acquired foreign nationality, foreign law may be relevant to the determination of the validity of the will. In court proceedings or notarization practice in China, it may be necessary to ascertain and prove the content of the relevant foreign law.

Question 4: Must Chinese real estate be distributed according to Chinese intestacy rules?

This is one of the most common misunderstandings in cross-border inheritance matters.
Chinese law provides that intestate succession to immovable property is governed by the law of the place where the immovable property is located, and that rights in immovable property are governed by the law of the place where the immovable property is located. Because real estate located in China is Chinese immovable property, some people assume that Chinese real estate must always be distributed under China’s intestate succession rules, for example by equal distribution among the spouse, children, and parents of the deceased.

That understanding is incomplete.
The rule that intestate succession to immovable property is governed by the law of the situs mainly applies where there is no will, where the will is invalid, or where part of the estate is not covered by the will. If there is a valid will, the form and validity of the will should first be examined under the conflict-of-law rules applicable to testamentary succession. If the will is valid under the relevant applicable law, the fact that its distribution differs from the statutory order or statutory shares under Chinese intestacy law does not, by itself, prevent the will from being applied to assets located in China.

For instance, if the deceased executed a foreign will leaving a residential property in China to one child only, and the will is valid under the applicable law, and the property is indeed the deceased’s personal property, the testator’s intention should generally be respected. The property should not automatically be divided equally among all first-order statutory heirs under Chinese intestacy rules.

However, the title to Chinese real estate, co-ownership issues, registration formalities, transfer procedures, property-law effects, and restrictions on the disposition of Chinese immovable property remain governed by Chinese law. In other words, the will may determine who is entitled to inherit, but the transfer and registration of Chinese real estate must still comply with Chinese law and the requirements of the Chinese real estate registration authority.

Question 5: Can a will dispose of all assets located in China?

A will can dispose only of the deceased’s lawful personal property. It cannot dispose of property belonging to others.
In practice, the following issues require particular attention:

First, marital community property. If real estate, bank deposits, or equity interests in China are registered solely in the deceased’s name but constitute marital community property, the surviving spouse’s share should normally be carved out first. Only the deceased’s own share forms part of the estate and may be disposed of by will.

Second, co-owned property. If the relevant property is co-owned by the deceased and other persons, the deceased’s share in the co-owned property must first be determined. The will can dispose only of the deceased’s share, not the shares belonging to other co-owners.

Third, property belonging to others. Any part of a will that purports to dispose of state property, collective property, or property belonging to another person will generally be ineffective to that extent.

Fourth, necessary reserved shares. Where Chinese law applies, or where mandatory Chinese rules are implicated, attention should be paid to whether there are heirs who lack the ability to work and have no source of income. If the will fails to reserve a necessary portion of the estate for such persons, the necessary portion may need to be set aside first, and the remainder of the estate may then be distributed in accordance with the will.

Question 6: What documents are usually required for testamentary succession to assets in China?

The following documents are commonly required when assets located in China are inherited under a will:

1. Death certificate of the deceased. If the deceased died in China, hospital death certificates, cremation certificates, or household registration cancellation records may be used. If the deceased died abroad, the foreign death certificate will usually need to be notarised, authenticated or apostilled, and translated into Chinese.

2. Identity documents of the deceased. These may include passport, identity card, household registration records, nationality certificate, permanent residence documents, or other materials relevant to identity, nationality, and habitual residence.

3. The will. The original will should be provided where possible. If only a copy is available, its source and authenticity should be explained and supported by evidence. For a foreign will, certificates or confirmations issued by foreign notaries, lawyers, courts, probate registries, or estate administration authorities may also be required.

4. Evidence of the validity of the will. If the will has gone through probate, court confirmation, will registration, or estate administration procedures abroad, the relevant documents should be provided. These documents will usually need to be notarised, authenticated or apostilled, and translated into Chinese.

5. Identity documents of the heirs or beneficiaries. Foreign heirs usually need to provide passports, identity documents, and address documents. Chinese heirs usually provide PRC identity cards and household registration materials.

6. Evidence of family relationships. Even in testamentary succession, evidence of family relationships may still be required. Chinese notaries, courts, banks, and registration authorities may need to ascertain the scope of statutory heirs, whether any person is entitled to a necessary reserved share, and whether any statutory heir challenges the will.

7. Evidence of assets located in China. This may include real estate ownership certificates, property registration records, bank deposit statements, shareholding or equity registration records, vehicle registration documents, intellectual property certificates, and other asset documents.

8. Chinese translations. Foreign documents normally need to be translated into Chinese. In practice, it is advisable to use a qualified translation agency and comply with the requirements of the authority before which the documents will be used.

Question 7: Should the matter be handled by notarization or by litigation?

Testamentary succession to assets located in China may generally be handled through either notarization or litigation.

If all heirs and beneficiaries agree, the will is clear, the applicable law is not controversial, and the documents are complete, the parties may attempt to apply to a Chinese notary office for an inheritance notarization or a notarization relating to acceptance of a legacy. The notarised certificate may then be used for real estate transfer, bank withdrawal, equity transfer, or other asset transfer procedures.

However, foreign-will cases often encounter higher evidentiary thresholds in notarization practice. A notary office may require evidence of foreign law, evidence of the will’s validity, evidence of the scope of heirs, evidence of family relationships, and evidence of the assets. If the documents are incomplete, or if the notary considers that the validity of the will, the ascertainment of foreign law, or the scope of heirs is uncertain, the notarization route may not be available.

Where there is a dispute among heirs or beneficiaries, or where notarization cannot proceed, litigation is usually required. In litigation, the court can examine the authenticity, form, and validity of the will, ascertain the relevant foreign law, determine the scope of the estate and the rights of the parties, and issue a judgment or mediation statement. The parties can then rely on the effective court document to complete the division, transfer, and registration of the estate.

Question 8: Can a foreign probate document or court order be used directly to transfer Chinese assets?

Foreign probate documents, letters testamentary, grants of probate, grants of representation, certificates confirming a will, or documents appointing a personal representative can be important evidence of the authenticity of the will, the validity of the will, the authority of the executor or personal representative, or the manner in which the estate is to be administered.

However, such foreign documents will not necessarily replace a Chinese inheritance notarization certificate or a Chinese court judgment.

If the assets to be dealt with are real estate, bank deposits, equity interests, or other assets located in China, the relevant Chinese institution may still require the parties to complete Chinese notarization, litigation, registration, or other procedures. A foreign probate document may be highly relevant evidence, but whether it can directly support the transfer of assets in China depends on the requirements of the Chinese authority or institution handling the matter.

Question 9: What should a legatee pay special attention to?

If a will leaves assets to a person who is not a statutory heir, the arrangement is usually characterised under Chinese law as a legacy rather than inheritance by will.
A legatee should pay particular attention to the requirement of accepting the legacy. Under Chinese law, a legatee is generally required to express acceptance within a prescribed period after becoming aware of the legacy. Failure to do so may be treated as a waiver of the legacy.
Therefore, if a foreign will leaves assets located in China to a friend, partner, charity, company, trust, or another person who is not a statutory heir, the legatee should promptly and expressly accept the legacy, for example by written statement, notarized declaration, lawyer’s letter, or court claim, so as to avoid losing rights due to procedural inaction.

Question 10: What are the main practical risks?

First, a will may be valid abroad but still difficult to use before Chinese institutions. A foreign will may be valid under the law of the place where it was made, but Chinese notaries, courts, banks, or registration authorities may still require substantial supporting evidence, including evidence of the execution process, witness identity, foreign law, and probate or certification documents.

Second, foreign legal concepts may not be directly executable in China. Wills involving concepts such as trust, life estate, joint tenancy, or personal representative may not be directly registrable in the Chinese real estate registration system. In practice, such arrangements may need to be translated into legal relationships recognizable under Chinese law, such as inheritance, legacy, co-ownership, entrusted administration, or a court-confirmed arrangement.

Third, the will may purport to dispose of more than the deceased’s own property. For example, a will may state that an entire property is to pass to a particular person, even though the property is in fact marital community property or family co-owned property. In that case, the will can dispose only of the deceased’s own share.

Fourth, statutory heirs and legatees are subject to different procedural requirements. A statutory heir receiving property under a will is usually treated as inheriting by will, whereas a person outside the class of statutory heirs is usually treated as receiving a legacy. Acceptance periods, assertion of rights, tax and registration materials may differ.

Fifth, foreign documents must be planned in advance. Death certificates, wills, court documents, identity documents, marriage documents, and family relationship documents formed outside China will usually need notarization, authentication or apostille, as well as Chinese translation. Incomplete documentation is one of the most common reasons why cross-border testamentary succession cannot proceed smoothly.

Conclusion

For foreign nationals and overseas Chinese seeking to inherit assets located in China under a will, two simplistic assumptions should be avoided. It is not correct to assume that a foreign will is invalid in China merely because it was executed abroad. It is also not correct to assume that Chinese real estate must always be divided equally under China’s intestate succession rules simply because the property is located in China.

The proper analysis is to determine, first, whether the will is formally valid; second, whether the will is substantively valid; and third, whether the assets in China can be transferred and registered in accordance with Chinese property and registration law.

If the will is valid, the testator’s intention should generally be respected. However, the determination of title to Chinese immovable property, the division of marital or co-owned property, the protection of necessary reserved shares, and the registration and transfer of property rights in China must still comply with Chinese law and the requirements of the relevant Chinese authorities.

Accordingly, in cases involving a foreign will and assets located in China, it is advisable to conduct a comprehensive assessment of the validity of the will, the applicable foreign law, the scope of the estate, the identity and rights of heirs and beneficiaries, the feasibility of notarization, and the possible need for litigation before commencing the inheritance process.
 
Note: This article is for general informational purposes only and does not constitute legal advice. Specific cases should be assessed in light of the facts, applicable law, and the requirements of the relevant Chinese authority.