Author: Lawyer Zhang Jingxinyue | PRC Practising Lawyer | Singapore Registered Foreign Lawyer
Editor's Note：A friend in Singapore asked: “I have lived in Singapore for many years and have become a Singapore citizen. If a relative in China passes away, can I inherit the property they left in China? How should the inheritance procedures be completed?”
01 Can a foreign national inherit property in mainland China?
Yes. Although China has many different categories of property, including military housing, economically affordable housing, restricted-price housing and centrally administered housing, a foreign national may inherit and transfer property in the same way as a Chinese national as long as the law does not expressly prohibit the inheritance and the property formed part of the deceased's lawful estate.
02 What is the legal basis for inheriting property in China?
Article 36 of the Law of Succession provides that where a Chinese citizen inherits an estate outside the People's Republic of China, or inherits property in China left by a foreign national, movable property is governed by the law of the deceased's place of residence, while immovable property is governed by the law of the place where the immovable property is located.
Where a foreign national inherits an estate in China, or inherits an estate outside China left by a Chinese citizen, movable property is governed by the law of the deceased's place of residence, while immovable property is governed by the law of the place where the immovable property is located.
Where China has concluded a treaty or agreement with a foreign country, that treaty or agreement applies.
Accordingly, the inheritance of property in mainland China by a foreign national is governed by Chinese law.
03 How can a foreign national inherit property in mainland China?
Under the Notice on Confirming the Effectiveness of Notarial Documents in Matters Concerning Housing Rights of Overseas Chinese, Hong Kong and Macao Compatriots, Taiwan Compatriots and Foreign Nationals issued by the Ministry of Justice, the Ministry of Construction, the Ministry of Foreign Affairs and the Overseas Chinese Affairs Office of the State Council, an overseas heir must complete the following procedures:
- An overseas Chinese or foreign national applying to inherit property in China must apply to a notarial authority in the country of residence for a notarial certificate proving the applicant's occupation, address and relationship with the deceased who left property in China. The certificate must also be authenticated by the Chinese embassy or consulate in that country, unless authentication is exempted under a consular treaty. If the document is notarised in a country that has no diplomatic relations with China, it will generally need to be authenticated by that country's foreign ministry and by the Chinese embassy or consulate of a third country that has diplomatic relations with both countries.
- The applicant must take the authenticated notarial certificate, the deceased's death certificate, will and other documents to a notarial authority at the location of the property. After reviewing the documents and confirming that they comply with Chinese law, the authority will issue a certificate of inheritance rights. The applicant may then use the certificate to complete the inheritance and transfer procedures with the property administration department. If the applicant cannot travel to China, another person may be appointed to act on the applicant's behalf. The agent must also submit a power of attorney stating the agent's name, address and authority, signed and sealed by the principal. The power of attorney must be notarised and authenticated as required.
- If a dispute arises from the inheritance of property in China by an overseas Chinese or foreign national, the parties may bring proceedings before the people's court at the location of the property. Under the Law of Succession, the inheritance of property in China by an overseas Chinese or foreign national is governed by the law of the place where the property is located, namely Chinese law.
For this purpose, “overseas persons” include overseas Chinese, Hong Kong and Macao compatriots, Taiwan compatriots, ethnic Chinese who hold foreign nationality and other foreign nationals.
04 How are overseas Chinese, ethnic Chinese with foreign nationality and foreign nationals distinguished?
Overseas Chinese: An overseas Chinese person is a Chinese citizen who has settled abroad.
- “Settled” means that a Chinese citizen has obtained long-term or permanent residence in the country of residence and has lived there continuously for two years, with an accumulated stay of at least 18 months during those two years.
- A Chinese citizen who has not obtained long-term or permanent residence but has obtained lawful residence for five consecutive years or more, and has stayed in the country of residence for an accumulated period of at least 30 months during those five years, is also treated as an overseas Chinese person.
- A Chinese citizen studying abroad, whether under a government programme or at private expense, or working abroad on official business, including as an overseas-assigned worker, is not treated as an overseas Chinese person during that period.
Ethnic Chinese with foreign nationality: This refers to former Chinese citizens who have acquired foreign nationality, their descendants who hold foreign nationality, and descendants of Chinese citizens who hold foreign nationality.
Foreign national: Under the Nationality Law of the People's Republic of China, a foreign national is a person who does not hold Chinese nationality.
05 What happens if there are multiple heirs?
Where there are multiple heirs, the first question is whether there is any dispute concerning the inheritance or distribution of the estate.
- If all heirs agree and there is no dispute, the heirs should take the deceased's identity documents, death certificate, proof of family relationship, proof of ownership of the inherited property and other required documents to a notarial authority at the location of the estate. The specific document requirements should be confirmed with the relevant notarial authority. After the inheritance-rights notarisation is completed, the applicants may go to the estate administration department, such as the housing authority or a bank, to complete the inheritance and transfer procedures.
- If the heirs disagree about the estate, the dispute must be brought before a court with jurisdiction. After hearing the case, the people's court will issue a judgment or mediation statement on the distribution of the estate. The heirs may use the court document to complete the relevant inheritance procedures with the estate administration department.
06 How can a person renounce an inheritance of property in mainland China, and what must be submitted?
If a foreign national decides to renounce the inheritance, the person may have a Declaration of Renunciation of Inheritance notarised in Singapore.
07 How are powers of attorney and declarations notarised and authenticated in Singapore?
The notarial certificate mentioned in step 2 above, which is equivalent to a domestic certificate of inheritance rights, the power of attorney and the Declaration of Renunciation of Inheritance mentioned in step 6 are all non-official Singapore documents. They should first be notarised by a Singapore notary public, then submitted to the Singapore Academy of Law for verification, sent to the Singapore Ministry of Foreign Affairs for authentication (legalisation), and finally submitted to the Chinese embassy through the Chinese Visa Application Service Centre for authentication. An agent may handle the process, so the applicant does not need to attend in person. See Overseas Notarisation | A Detailed Guide to Notarising a Power of Attorney in Singapore (with a Template) for more information.
Because a Singapore notary public does not assume responsibility for the substantive content of a declaration or power of attorney, and because the requirements of local authorities in different parts of China may vary, it is advisable to consult the property transaction centre at the location of the property or a Chinese lawyer before notarisation.
08 What taxes and fees may be payable when inheriting property in China?
In general, the costs of inheriting property may include inheritance-rights notarisation fees, property valuation fees, stamp duty and deed tax on the transfer, registration fees and other charges.
Inheritance-rights notarisation fee: generally charged at 2% of the appraised value of the real estate inherited, subject to a minimum of RMB200.
Property valuation fee: calculated on a progressive basis using different rates depending on the value of the property.
Taxes and fees for transferring inherited property: generally consist of contract stamp duty at 0.05% of the appraised value, a RMB100 registration fee and a RMB5 stamp duty on the title certificate.
Deed tax: statutory heirs are exempt from deed tax when inheriting real estate. A non-statutory heir who acquires land or housing rights under a will must generally pay deed tax at 1.5%.
These rates are provided for reference only. The policies of the relevant local authorities in force at the time of the application will prevail.
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This article is for information only and does not constitute formal legal advice.
This article is general information and not legal advice. Specific matters require assessment by appropriately qualified professionals.