中伦观点 | Succession of Real Estates in China by Foreigners

导读：

中国多年来改革开放和经济高速发展，吸引了大批外国人来华投资或者工作，与此同时，也有许多国人移居国外。出于不同的原因，这些人在国内保有一定数量的房产。由于国家房管部门对于外国人在华房产的继承一直持审慎的态度，一旦在华拥有房产的外国人身故，其继承人要继承其在华遗产，就要面对复杂的继承手续。

China has been developing rapidly during last decades. With this trend, many foreigners invested into China or came to work in China.  Meanwhile, a growing number of Chinese immigrated to other countries.  Many of these people own considerable real estate properties in China.  Like many other countries, the public notary handles most of the administrative aspects related to the transfer of inherited property.  However, it should be noted that the public notary in China is very cautious in dealing with the succession of real estates, especially that involving foreigners.  As such, the successors of the real estate properties owned by foreigners may find it complicated to process the succession.

According to the Law of Succession of China, effective as of 1 October, 1985, the succession by a foreigner of real estate properties within China shall be governed by the law of China.  The Law of Succession provides two means of succession: 1) succession by will, and 2) succession by law.  A will generally takes precedence while succession by law will apply when a decedent does not leave a will, or if a portion of a will is invalid.

1.Succession by Will

It is important that the will shall be prepared in such forms and manners in compliance with the law of China.  Furthermore, if the will is made outside China, before it can be submitted to the pubic notary, it shall be legalized, i.e. first notarized by a public notary outside China and then certified by the Chinese embassy or consulate there.  In addition to the will, the successors shall also provide additional documents, including:

1) the ownership certificates of the real estate property, 

2) the identity documents of the decedent and the successors, which shall also be legalized, if applicable.

2.Succession by Law

Under the laws of China, the assets of a couple are generally considered as being jointly possessed by the husband and wife and should first be split equally between them.  Only the portion of the decedent should be inherited.  The succession shall follow the order below: 1) first in order: spouse, parents and children; and 2) second in order: brothers and sisters, paternal grandparents, maternal grandparents.  

When succession opens, the successors first in order shall inherit to the exclusion of the successors second in order.  The successors second in order shall inherit in default of any successor first in order.  Successors same in order shall, in general, inherit in equal shares.

In the case of succession by law, the successors are required to provide documents to prove their relationship with the decedent and confirm there are no other successors.  Understandably, this is the most complicated part of work due to the difficulties involved to locate documents, some of them produced decades ago, and clarify the inconsistences caused by name changes and immigration.  The documents produced outside China must also be legalized.  Our experience is that it might take months of work to prepare the necessary documents to be submitted to the public notary. 

If the successors are not be able to provide all such documents as required, they will have to file a lawsuit with the court where the real estate properties are located to claim their rights.  The court proceedings takes much longer time as the court must make a public announcement to ensure that there are no other successors.

In light of the above, given the complication involved in the succession, it is highly advisable for foreigners to prepare a proper will if they own real estate properties in China.

The information contained in this article is only intended to be a synopsis. It is advisable to take detailed professional advice before acting on it. If you would like to find out more about how Zhong Lun can assist you, please contact Kent WOO at [e-mail] or [phone]

作者简介：

吴清发  律师

合伙人  广州办公室 

业务领域：公司/外商直接投资，诉讼仲裁，知识产权

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