1. Basic Principles
- Protection of the right of private property
- The equity between man and woman in their right to inheritance
- The equity of rights and duties
- Care of the old, children, the sick and the disabled
2. The right to inheritance
i. Obtaining inheritance rights
In accordance with the Inheritance Law in China (effective on 1 October 1985), successors obtain inheritance rights on the basis of marriage relationship, blood relationship and fostering relationship.
ii. Renunciation of succession
In China, the renunciation of succession shall be expressly created.
A successor who, after the opening of succession, disclaims inheritance should make known his decision before the disposition of the estate. In the absence of such an indication, he is deemed to have accepted the inheritance.
A legatee should, within two months from the time he learns of the legacy, make known whether he accepts it or disclaims it. In the absence of such an indication within the specified period, he is deemed to have disclaimed the legacy.
iii. Loss of inheritance rights
A successor would be disinherited upon his commission of any one of the following acts: (1) intentional killing of the decedent; (2) killing any other successor in fighting over the estate; (3) a serious act of abandoning or maltreating the decedent; or (4) a serious act of forging, tampering with or destroying the will.
However, only in one case, inheritance rights may be restored in the third circumstance above according to relevant judicial interpretation.
Only the People’s Courts have the right to confirm the loss of inheritance of successors.
iv. Restoration of inheritance rights
Successors have right to apply to the People’s Court for protection of inheritance when it is infringed by others within certain period.
3. Statutory Succession
i. Order of inheritance
The estate of the decedent shall be inherited in the following order:
- First in order: spouse, children, parents.
When succession opens, the successor(s) first in order shall inherit to the exclusion of the successor(s) second in order.
- Second in order: brothers and sisters, paternal grandparents, maternal grandparents.
The successor(s) second in order shall inherit in default of any successor first in order.
ii. Share in legal succession
- Successors same in order shall, in general, inherit in equal shares.
But successors may take unequal shares if an agreement to that effect is reached among them.
- At the time of distributing the estate,
Due consideration shall be given to successors who are unable to work and have special financial difficulties;
Successors who have made the predominant contributions in maintaining the decedent or have lived with the decedent may be given a larger share;
Successors who had the ability and were in a position to maintain the decedent but failed to fulfil their duties shall be given no share or a smaller share of the estate;
iii. Succession by Subrogation
Where a decedent survived his child, the direct lineal descendants of the predeceased child inherit in subrogation. Descendants who inherit in subrogation generally shall take only the share of the estate their father or mother was entitled to.
4. Testamentary Succession and legacy
i. A valid will shall meet the following conditions:
- Testator shall have capacity to make a will;
Wills made by persons with no capacity or with limited capacity shall be void.
- Wills shall manifest the genuine intention of the testators;
Wills made under duress or as a result of fraud shall be void.
Forged wills shall be void.
Where a will has been tampered with，the affected parts of it shall be void.
- The will shall be legal in content;
Reservation of a necessary portion of an estate shall be made in a will for a asuccessor who neither can work nor has a source of income.
- The will shall be legal in form.
There are five forms of a will regulated in law which are notarial wills, testator-written wills, wills written on behalf of the testators, sound-recording wills, and nuncupative wills.
The specific requirements and restrictions for different types of wills and witnesses are formulated in the law.
ii. Testamentary succession
A citizen may, by making a will, designate one or more of the statutory successors to inherit his personal property. A citizen may, by means of a will made in accordance with the provisions of this Law, dispose of the property he owns and may appoint a testamentary executor for the purpose.
- Testamentary succession is prior to statutory succession.
- Application conditions of testamentary succession
- There is not legacy-support agreement;
- The testator has made a legitimate will;
- The testamentary successor did not renunciate or in any way loss the succession;
- The testamentary successor survived the testator.
A citizen may， by making a will, donate his personal property to the state or a collective, or bequeath it to persons other than the statutory successors.
5. Legacy-support Agreement
- A legacy-support agreement is prior to legacy and testamentary succession.
- Specific Provision:
Article 31: “A citizen may enter into a legacy-support agreement with a person who, in accordance with the agreement, assumes the duty to support the former in his or her lifetime and attends to his or her interment after death, in return for the right to legacy.
A citizen may enter into a legacy-support agreement with an organization under collective ownership which, in accordance with the agreement, assumes the duty to support the former in his or her lifetime and attends to his or her interment after death, in return for the right to legacy.”
6. Disposition of the Estate
Estate denotes the lawful property owned by a citizen personally at the time of his death. Estate is stipulated in the law specifically.
Anyone who has in his possession the property of the decedent shall take good care of such property and no one is allowed to misappropriate it or contend for it.
- The opening of succession:
Succession opens on the death of a decedent.
In the event that the heir and the decedent died in the same event and it cannot be sure that who died first, the elder is presumed to be dead prior to the younger, and people in the same generation is presumed to be dead at the same time, in which case inheritance does not occurred between them.
A successor who，after the opening of succession，disclaims inheritance should make known his decision before the disposition of the estate.
In the absence of such an indication，he is deemed to have accepted the inheritance.
- Renunciation of succession
A legatee should，within two months from the time he learns of the legacy，make known whether he accepts it or disclaims it. In the absence of such an indication within the specified period, he is deemed to have disclaimed the legacy.
- Burial fee and family debts (except for the decedent’s part) shall not be included in inherited debts.
- The successor who disclaims inheritance assumes no responsibility for the payment of taxes and debts payable by the decedent according to law.
- The successor to an estate shall pay all taxes and debts payable by the decedent according to law，up to the actual value of such estate, unless the successor pays voluntarily in excess of the limit.
- Vacant Estate
An estate which is left with neither a successor nor a legatee shall belong to the state or, where the decedent was a member of an organization under collective ownership before his or her death, to such an organization.
7. Succession concerning foreign elements
Law of the Application of Law for Foreign-related Civil Relations has imposed the specific provisions for the conflicts of law.
Conflict of law
Choice of law
The laws at the habitual residence at the time of death of the deceased 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.
The formality of testament.
A testament shall be confirmed as valid if its form conforms to the law at the habitual residence, of the state of nationality or at the locality of the testamentary acts when the testament is made or at the time of death of the testator.
The validity of testament
The laws at the habitual residence or of the state of nationality when the testament is made or at the time of death of the testator shall apply to the validity of a testament
The administration of estates and related issues.
The law at the locality of an estate
The disposition of a vacant estate
The law at the locality of an estate at the time of death
NOTICE: The material contained herein is in the nature of general comment and information ONLY and neither purports, nor is intended, to be advising on any particular matter. Readers should not act or rely upon any matter or information contained in or implied by the publication without taking appropriate professional advice.