In recent years, there has been an increasing number of Chinese emigrated overseas. Since no one can escape from the natural rule of birth, oldness and death, the issue of overseas or cross-border inheritance is becoming more and more popular for those overseas Chinese. For those who have emigrated overseas, it has become an issue of common concern whether they can inherit their parents’ properties in China in the future and whether they can transfer the properties overseas. This article will briefly review cross-border inheritance issues.
 
Question 1: What are the legal statuses of overseas Chinese?
From a legal point of view, Chinese living abroad can be mainly identified as the following: 
1. Chinese citizens temporarily living abroad due to overseas studying, visiting or working dispatches.
2. Overseas Chinese: They refer to Chinese citizens who have obtained a long-term residence or permanent residence (PR) permit in a certain country. PR is what usually called Green Card, but the nationality of a PR holder is unchanged and remains as a Chinese citizen.
3. Chinese foreigners: They refer to individuals who have acquired the citizenship of a foreign country. Since China does not recognize dual nationalities, a Chinese citizen will automatically lose his (her) Chinese citizenship once he or she acquires a foreign nationality. Therefore, in terms of law, these people are actually foreigners and are usually referred to as Chinese of a certain nationality, such as American Chinese or French Chinese etc..
 
Question 2: Can emigrated Chinese still inherit properties in China?
Whether it is based on the previous Succession Law or the current Civil Code, for those overseas emigrates, their rights of inheritance will not be deprived by emigration. Therefore, those emigrates including overseas Chinese or Chinese foreigners can inherit the properties of their parents or other decedents in China.
 
Question 3: What are the documents required to inherit the properties in China?
(1) First of all, the premise of inheritance is the death of the decedents. So it is necessary to provide the idendification document and death certificate of the deceased which could be issued by a hospital, the crematory station or by a police station.
If the decedent dies abroad, the death certificate needs to be notarized and authenticated by the Chinese Embassay or consulate in the country where the person dies, attached with a Chinese version.
(2) The second types of documents are the kinship certificates, which prove the kinship between the heirs and the decedents. An heir has the right to inherit the properties of a decedent. The kinship documents are generally proved by birth certificates, marriage certificates, household registration materials, or letters issued by the Village Committee (Neighborhood Committee). For individuals who have acquired foreign nationalities, they need to identify their legal status. For example, Si Li 's daughter, Xiaosi Li, went abroad and then acquired American citizenship. The domestic kinship certificate can only prove that the then Chinese national Xiaosi Li was the daughter of Si Li. Now Xiaosi Li is holding a US passport, and her passport will only show her current English name (Xiaosi Li). Therefore, this situation requires further proof that the current American (Xiaosi Li) is the former Chinese national Xiaosi Li. Chinese people who have become foreign nationals mostly use Chinese Pinyin as their foreign names. For example, “李小四” has become Xiaosi Li. However, there can also be new names. For example, San Zhang has become Peter Zhang. For the latter, it will be more difficult to prove that Peter Zhang is San Zhang.
 
(3) The third types of documents are materials that prove the ranges, the attributes and values of the inheritance, such as bank deposits slips, equity, real estate or patent certificates, etc., as the basis of inheritance distribution.
 
Question 4: What are the ways of inheritance?
For overseas Chinese or Chinese foreigners to inherit domestic inheritance, non-registered non-real-estate properties can be inherited or divided among themselves. Besides, there are two main ways for the inheritance of real estates, vehicles, company equities, bank deposits or other properties. They are notarization and litigation.
 
Question 5: How to choose between notarization or litigation?
First of all, if there are no disputes between or among the heirs on inheritance, they can bring relevant documents to the notary office to apply inheritance notarization, and then with the noary paper, go to other relevant department to divide the inherited properties, such as real estate transfer, bank deposit distribution, etc.
 
If there are disputes between or among the heirs over the issue of inheritance, they need to file a lawsuit for inheritance in the court. After the case is closed, the heirs may go through the relevant procedures for the division of the inherited properties in accordance with the court’s effective judgment or mediation agreement.
 
Special Notes:
The notarization procedure seems simple and quick, but in practice it may not necessarily be so.
This is because the notary office will only handle the notarization if the related parties provide all the necessary materials. But in reality, some materials are often difficult to obtain because of the long-time period, such as proofs showing decedents grandparents’ died before the decedents. This will add difficulties for a notary office to issue a notarial certificate.
Under such situation, the litigation procedure provide another option. As long as the basic facts such as the death of the decedents as well as the kinship between the heirs and the decedents can be clarified, a lawsuit can be initiated. Other matters can be clarified through court investigation during the trial and then a judgment can be made.
 
Therefore, the threshold of notarization is actually higher than that of litigation. Some inheritance cases can only be resolved through litigation procedures even if there are no disputes between the heirs, when the notarization process cannot proceed.
 
Question 6: Which court to file a lawsuit for a disputed estate?
According to the relevant provisions of the Civil Procedure Law, inheritance cases should be under the jurisdiction of the people's court at the habitual residence at the time of death of the decedents or the location place of the main heritage.
 
Question 7: Which country's law is applicable to foreign-related inheritance?
According to the relevant legal provisions of the Application Law for Foreign-related Civil Relations, the laws at the habitual residence at the time of death of the decedents shall apply to legal inheritance, but the laws at the locality of the real estate shall apply to the legal inheritance of a real estate. According to the above regulations, if the decedent's habitual residence is China at the time of death, Chinese law shall apply, which makes it relatively convenient to deal with domestic cases. However, if the habitual residence at the time of death of the decedents is abroad, the case will be complicated, because the law of the place of residence at the time of death applies to movable properties, while Chinese law applies to real estates located in China.
 
Question 8: Can the properties be transferred abroad if the overseas heirs have inherited their domestic properties?
China implements a foreign exchange control system to supervise the cross-border flow of foreign currency. However, according to Regulations on the Foreign Exchange System of the People’s Republic of China, after the realization of the legally inherited properties, foreign exchange can be purchased from the banks and be remitted overseas after completing the procedures required by the relevant foreign exchange control authorities.

For more inquiry, please feel free to contact

David Gao, Attorney at Law
Email: gaohexin@163.com
Tel: 86 13611158067