Inheritance of Estate in Hong Kong and the Mainland China
As a lawyer dual qualified in Hong Kong and the Mainland China and in the practice of inheritance and probate, I have handled many cross-border inheritance and probate matters involving both Hong Kong laws and the the Mainland laws. In many cases, the deceased die leaving estate both in the Mainland China and Hong Kong. As Hong Kong and the Mainland China have independent and different legal system, the heirs (the persons entitled to the estate) will need handle the inheritance of the estate in Hong Kong and that in the Mainland China differently. Usually the heirs will need engage two different lawyers, i.e., one Hong Kong solicitor and a PRC lawyer, to handle the inheritance of estate in Hong Kong and in the Mainland China respectively, unless they find a law firm like us, Yan Lawyers, which practise inheritance laws of both Hong Kong and the Mainland China, and which can really provide one-station cross-border legal service of both Hong Kong laws and PRC laws.
Applicable laws on cross-border inheritance between Hong Kong and the Mainland: Who has the right of inheritance
The laws of Hong Kong and the Mainland have the same principle of conflict of laws in determining the right of inheritance, i.e., the laws of the place where real property (such as land, house, flat, etc) is located shall apply to the inheritance of real property, and the laws of the deceased’s domicile place shall apply to inheritance of movable property. Therefore, if the a Mainland resident died leaving a house in Hong Kong, the issue who are entitled to inheriting the house shall be determined in accordance with the law of Hong Kong. On the other hand, the issue who are entitled to inheriting movable properties such as cash and shares in Hong Kong bank accounts shall be determined by the laws of the Mainland, where the deceased resides at the time of death. Similarly, if a Hong Kong resident dies leaving real estate in the Mainland china, who are entitled to the property in the Mainland shall be decided according to the laws of the Mainland, and the inheritance of movable property such as cash and shares in a Mainland bank shall be subject to the law of Hong Kong being the deceased’s domicile place.
Hong Kong and the mainland have different rules on the order of succession
In accordance with the law of the Mainland China, the decased’s estate shall be equally divided among the surviving first-order heirs (spouse, parents, children) or, the surviving second-order heir (siblings) if none of the first-order heir survive the deceased.
Under the laws of Hong Kong, the deceased’s parents have no right of inheritance if deceased leaves a spouse or children surviving. In the case of a deceased leaves both spouse and children, the spouse will acquire all personal chattels, and then a fixed amount (HKD $500,000) with interest as well as a half of the remainder of estate, the other half of the remainder shall be shared by the children equally.
If the deceased leave spouse and parent(s) but no child, the spouse will acquire all personal chattels, and then a fixed amount (HKD $1,000,000) with interest as well as a half of the remainder of estate, the other half of the remainder shall be shared by the children parent(s).
Jurisdiction over cross-border succession between Hong Kong and the mainland
Inheritance of the estates is located in Hong Kong, including real property such as flat and personal property such as cash and shares, shall all be under the jurisdiction of the Hong Kong, regardless of whether the deceased dies domiciled in Hong Kong or the Mainland China. On the other hand, where the estate is located in Mainland China, either immovable property or movable property or both, the inheritance of such estate shall be subject to the jurisdiction of the relevant Mainland Chinese authorities, regardless of whether the decedent is domiciled in Hong Kong or the Mainland China. In short, the place where the estate is located shall have the jurisdiction to handle the inheritance matter, and the procedure of the inheriting the estate shall follow the procedure law of the place where the estate is located.
Inheritance of estate left by the Mainland resident in Hong Kong
For the estate left behind by deceased Mainland resident in Hong Kong, the inheritance procedure shall start by a proper person applying to Probate Registry of the High Court of Hong Kong for appointing him an executor (if it is testate and an executor is appointed in a will) or for appointing him an administrator (if it is intestate or a will is left but no executor appointed by the will).
If a will is left and an executor is appointed in the Will, the court will decide whether the will in valid and if yes then the appointment of executor in the will will be approved. If there is no will or there is a will but no executor is appointed in the will, the court will then see whether the estate left in Hong Kong is real property or personal property or both. If the estate is immovable property, the court of Hong Kong will decide who has the priority to act as administrator in accordance with the laws of Hong Kong. On the other hand, if the estate left in Hong Kong are movable property such as bank deposits or stocks, the Hong Kong court will determine who are the heirs of the estate and who shall be appointed to be administrator according to laws of the Mainland China.
But how the Hong Kong court know of the the laws of the Mainland China in case of the Mainland laws shall apply? The Hong Kongg court knows of the the laws of the Mainland China by requesting the applicant to provide a legal opinion issued by a competent PRC lawyer or notarial certificate of inheritance issued by a notary public in the Mainland China.
After obtaining the a probate or a Letters of Administration issued by the Probate Registry of the High Court, the executor or the administrator may collect the estate from the bank and other institutions and to proceed on the procedure of distributing the estate to the heirs.
Inheritance of the estate left by Hong Kong deceased resident in the Mainland China
The inheritance of estate left by Hong Kong deceased resident in the Mainland China starts by the heirs obtaining a notarial declaratory certificate in Hong Kong in proof of all the heirs’ relationship with the deceased, and then the heirs shall jointly apply to a notary public in the Mainland China for a notarial certificate in proof of their entitlement to inherit the estate under the Mainland laws. After obtaining the notarial certificate in proof of their entitlement to inherit the estate, the heirs can jointly collect the estate and divide estate among themselves.
For the inheritance real property, due to applicable of the Mainland law, the PRC notary public, as expert in PRC laws, will consider the evidences provided the applicant, and apply the Mainland laws to reach a conclusion in their notarial certificate on who shall be entitled for being distributed with the estate. After obtaining the notarial certificate, the heirs can use the notarial certificate to transfer the title of the real property from the deceased’s name the the heirs.
For the inheritance of of personal property, the procedure is generally the same, except that the notary public in the Mainland China may request the applicant to additionally provide a legal opinion issued by a Hong Kong lawyer explaining who shall be entitled to sharing the estate under Hong Kong laws.
Notarization and legalization of cross-boundary legal documents between the Mainland China and Hong Kong
It should be noted that in the process of handling the above inheritance matters, any legal document formed in the Mainland China that need to be used in Hong Kong must be notarized by a local notary and then be legalized by the Ministry of Foreign Affairs of PRC. On the other hand, If any legal document formed in Hong Kong needs to be used in the Mainland China, it must be notarized by a notary public appointed by the Ministry of Justice of PRC, and legalized by China Law Office (Hong Kong) Limited which is the delegate of the Ministry of Justice of PRC located in Hong Kong.
For any matter regarding the inheritance of estate in Hong Kong or the Mainland China, you are welcome to contact our probate and inheritance lawyer by email: [email protected] or by telephone call.