Inheritance - Legal Services in China

China inheritance law for foreigners is governed by the Succession Book of China’s Civil Code, which sets forth rules on the distribution and transfer of a natural person’s lawful property upon death. The Civil Code of the People’s Republic of China and related legislation establish three methods of estate disposition in mainland China, ranked in descending order of priority: legacy-support agreements, testate succession or legacy, and intestate succession. In other words, where a legacy-support agreement exists, it takes precedence; where no agreement exists but a lawful will has been made, the estate is distributed according to the will or legacy; and where neither exists, intestate succession applies.¹ This article introduces, in turn, the scope of the estate, intestate succession, testate succession, legacies, legacy-support agreements, acceptance and renunciation of inheritance, and forfeiture of the right of inheritance. This overview of china inheritance law for foreigners equips overseas heirs, foreign spouses, and expatriates with the basic rules needed to protect their inheritance rights in mainland China.

Under the Succession Book of China’s Civil Code, many people assume that all property held in a decedent’s name can be inherited. In fact, the law draws a clear line. An estate consists of the lawful personal property left by a natural person at the time of death; property that may not be inherited by law or by its nature may not be inherited.^[2]

Specifically, only property that the decedent lawfully acquired during their lifetime constitutes part of the estate. Common examples of inheritable property include wages, savings, wealth management products, stocks, funds, real property and movable property such as houses and vehicles, equity interests, and property rights embedded in intellectual property.

Two categories of rights and interests do not form part of the estate and warrant particular attention:

The first category comprises rights that are personal and inalienable, such as honors, reputation, and professional qualifications. These rights are inseparable from the natural person and are extinguished upon their death; they cannot be inherited.^[3]

The second category consists of payments that arise only after the natural person’s death, such as funeral expenses, survivor benefits, work-related death subsidies, and resettlement allowances. These payments are not property left by the decedent during their lifetime but rather compensation and consolation paid to their close relatives, and therefore do not form part of the estate. In judicial practice, such payments are treated as co-owned property of the close relatives. Where disputes arise over their partition, the case is typically brought as a dispute over partition of co-owned property, and the court partitions them by reference to the rules of intestate succession, taking into account the specific circumstances including family relationships.

In addition, the ownership of life insurance proceeds requires separate explanation. Where the policy has clearly designated a beneficiary, the death benefit belongs directly to the beneficiary and is not included in the estate. The insurance proceeds are treated as part of the estate for inheritance and partition only where no beneficiary is designated, the beneficiary predeceases the insured with no other beneficiary, or the beneficiary forfeits or renounces the beneficial right with no other beneficiary.^[4]

Intestate succession applies where the decedent did not make a will, the will is invalid, or the will does not dispose of the entire estate. It is the most common form of succession in practice.

Intestate successors are divided into two classes. Upon the opening of succession, the first-class successors inherit; only where there are no first-class successors do the second-class successors inherit.^[5]

First-class successors include the spouse, children, and parents. Children include children born in wedlock, children born out of wedlock, adopted children, and stepchildren with whom a support relationship exists. Parents include biological parents, adoptive parents, and stepparents with whom a support relationship exists.^[5]

Second-class successors include siblings, paternal grandparents, and maternal grandparents. Siblings include siblings by both parents, half-blood siblings, adopted siblings, and step-siblings with whom a support relationship exists.^[5]

The law expressly provides that men and women have equal rights of inheritance; there is no rule granting male successors a larger share or female successors a smaller share.^[6]

In intestate succession, successors in the same class generally inherit equal shares of the estate.^[7]

On the basis of equal partition, the law also provides for exceptions: successors who experience special hardship in life and lack the capacity to work shall be given special consideration; successors who performed the principal support obligation to the decedent or lived with the decedent may receive a larger share; successors who have the capacity and conditions to provide support but fail to do so shall receive no share or a smaller share. Where all successors reach a consensus through consultation, the estate may also be distributed according to a plan unanimously agreed upon by all successors rather than on the equal-share principle.^[7]

Testate succession refers to the disposition by a decedent, through a lawful will made during their lifetime, of their property to one or more of the intestate successors. Testate succession takes precedence over intestate succession, reflecting respect for the decedent’s wishes regarding the disposition of their personal property.

The Civil Code prescribes six lawful forms of will, each subject to strict statutory requirements; non-compliance with the formal requirements will directly render the will invalid:

1. Holographic Will: The entire will must be handwritten by the testator, signed by the testator, and dated with the year, month, and day. No witnesses are required.^[8]

2. Will Written on Behalf of the Testator: Two or more witnesses must be present. One of the witnesses writes the will, and the testator, the writer, and all other witnesses must sign it and date it with the year, month, and day.^[9]

3. Printed Will: Two or more witnesses must be present. The testator and the witnesses must sign every page of the will and date it with the year, month, and day.^[10]

4. Audio-Visual Will: Two or more witnesses must be present. The testator and the witnesses must record their names or likenesses, as well as the year, month, and day, in the audio or video recording.^[11]

5. Nuncupative Will: A nuncupative will may only be made in an emergency situation and requires two or more witnesses present. Once the emergency has passed and the testator is able to make a will in writing or by audio-visual recording, the previously made nuncupative will becomes invalid.^[12]

6. Notarial Will: A notarial will is executed by the testator through a notary institution.^[13]

Of the six forms listed above, all except holographic wills and notarial wills require the participation of witnesses. However, not everyone may serve as a will witness. The following three categories of persons are prohibited from serving as will witnesses: persons without capacity for civil conduct, persons with limited capacity for civil conduct, and other persons lacking the capacity to witness; successors and legatees; and persons with an interest in a successor or legatee (such as creditors, debtors, and business partners of a successor or legatee).^[14]

It should be noted that the Civil Code has abolished the former rule that notarial wills take priority. Where a testator has made multiple valid wills with conflicting contents, the most recently executed will prevails regardless of its form. A testator may revoke or alter their will at any time; where the testator, after making a will, performs a civil juristic act contrary to the contents of the will, it is deemed a revocation of the relevant provisions of the will.^[15]

Testate succession and legacies are often confused. The core distinction lies in the recipient of the property: testate succession distributes property to intestate successors, whereas a legacy is a gift by will to the state, a collective, or an individual or organization other than an intestate successor.

Legacies are subject to a time limit that is easily overlooked. A legatee must, within 60 days of learning of the legacy, express acceptance or renunciation of the legacy; failure to express an intention within the time limit is deemed a renunciation of the legacy.^[16]

This rule stands in stark contrast to intestate succession: an intestate successor who makes no expression after the opening of succession is deemed to have accepted the inheritance, whereas a legatee must actively manifest an intention to accept; failure to do so within the time limit results in forfeiture of the right to the legacy.^[16]

A legacy-support agreement is an agreement between a natural person and an organization or individual other than a successor, under which the organization or individual assumes the obligation to support the natural person during their lifetime and arrange their burial upon death, and in return enjoys the right to receive a legacy after the natural person’s death. It is essentially a bilateral arrangement of “support during life, legacy after death.”^[17]

A legacy-support agreement takes priority over both testate succession and intestate succession. Where a decedent entered into both a legacy-support agreement and a will during their lifetime, and the contents do not conflict, the estate is handled respectively according to the agreement and the will. Where the contents conflict, the agreement prevails, and the portions of the will that conflict with the agreement are invalid in whole or in part.^[17]

During the performance of the agreement, where the supporter fails to perform their obligations without just cause, resulting in the termination of the agreement, they may not enjoy the right to the legacy, and the support expenses they have already paid are generally not reimbursed. Conversely, where the legator fails to perform their obligations without just cause, resulting in termination, they shall repay the support expenses already paid by the supporter.

After the opening of succession, a successor who renounces the inheritance must express the renunciation in writing before the estate is disposed of; failure to express an intention is deemed acceptance of the inheritance. The renunciation takes effect retroactively as of the time of the opening of succession.^[16]

As noted above, a legatee must actively express acceptance or renunciation within 60 days of learning of the legacy; failure to express an intention within the time limit is deemed renunciation. This is the most critical procedural distinction between inheritance and legacies.^[16]

Not all successors are necessarily entitled to inherit the estate. A successor forfeits their right of inheritance if they commit any of the following acts: intentionally killing the decedent; killing another successor in order to compete for the estate; abandoning the decedent or maltreating the decedent under serious circumstances; forging, altering, concealing, or destroying a will under serious circumstances; or, by fraud or coercion, forcing or obstructing the decedent to make, alter, or revoke a will under serious circumstances.^[18]

With respect to the latter three acts listed above, the law provides for a condonation mechanism: where the successor shows genuine repentance and the decedent expresses forgiveness or subsequently names the successor as a beneficiary in a will, the successor does not forfeit their right of inheritance.^[18]

The overall logic of the inheritance system in mainland China can be summarized as follows: where a legacy-support agreement exists, it is applied first; where no agreement exists but a lawful will or legacy has been made, the will or legacy is applied; and where none of the above exists, intestate succession applies.^[1]

If you have inheritance-related legal issues in mainland China, please consult a lawyer for detailed advice.

[1] Civil Code of the People’s Republic of China, Article 1123 Upon the opening of succession, the estate is handled in accordance with intestate succession; where there is a will, it is handled in accordance with testate succession or legacy; where there is a legacy-support agreement, it is handled in accordance with the agreement.

[2] Civil Code of the People’s Republic of China, Article 1122 An estate consists of the lawful personal property left by a natural person at the time of death. Property that may not be inherited in accordance with the law or by its nature may not be inherited.

[3] Civil Code of the People’s Republic of China, Article 992 Personality rights may not be waived, transferred, or inherited.

[4] Insurance Law of the People’s Republic of China, Article 42 After the death of the insured, the insurance proceeds shall, under any of the following circumstances, be treated as part of the insured’s estate, and the insurer shall perform its obligation to pay the insurance proceeds in accordance with the Law of Succession of the People’s Republic of China: (1) no beneficiary is designated, or the designated beneficiary is unclear and cannot be determined; (2) the beneficiary predeceases the insured and there is no other beneficiary; (3) the beneficiary legally forfeits or renounces the beneficial right and there is no other beneficiary. Where the beneficiary and the insured die in the same event and the order of death cannot be determined, the beneficiary is presumed to have died first. (Note: This article reflects the text of the Insurance Law (2015 Amendment). The reference to the “Law of Succession of the People’s Republic of China” is superseded by the Civil Code, and in practice the provisions of the Civil Code’s inheritance book apply.)

[5] Civil Code of the People’s Republic of China, Article 1127 The estate is inherited in the following order: (1) First class: spouse, children, parents; (2) Second class: siblings, paternal grandparents, maternal grandparents. Upon the opening of succession, the first-class successors inherit, and the second-class successors do not inherit; where there are no first-class successors, the second-class successors inherit. For the purposes of this Book, “children” include children born in wedlock, children born out of wedlock, adopted children, and stepchildren with whom a support relationship exists. “Parents” include biological parents, adoptive parents, and stepparents with whom a support relationship exists. “Siblings” include siblings by both parents, half-blood siblings, adopted siblings, and step-siblings with whom a support relationship exists.

[6] Civil Code of the People’s Republic of China, Article 1126 Men and women have equal rights of inheritance.

[7] Civil Code of the People’s Republic of China, Article 1130 Successors in the same class generally inherit equal shares of the estate. In distributing the estate, special consideration shall be given to successors who experience special hardship in life and lack the capacity to work. Successors who performed the principal support obligation to the decedent or lived with the decedent may receive a larger share. Successors who have the capacity and conditions to provide support but fail to do so shall receive no share or a smaller share. Where successors agree through consultation, the shares may also be unequal.

[8] Civil Code of the People’s Republic of China, Article 1134 A holographic will must be handwritten by the testator, signed by the testator, and dated with the year, month, and day.

[9] Civil Code of the People’s Republic of China, Article 1135 A will written on behalf of the testator shall have two or more witnesses present. One of the witnesses shall write the will, and the testator, the writer, and the other witnesses shall sign it and date it with the year, month, and day.

[10] Civil Code of the People’s Republic of China, Article 1136 A printed will shall have two or more witnesses present. The testator and the witnesses shall sign every page of the will and date it with the year, month, and day.

[11] Civil Code of the People’s Republic of China, Article 1137 A will made in audio-visual form shall have two or more witnesses present. The testator and the witnesses shall record their names or likenesses, as well as the year, month, and day, in the audio-visual recording.

[12] Civil Code of the People’s Republic of China, Article 1138 A testator may make a nuncupative will in an emergency situation. A nuncupative will shall have two or more witnesses present. Once the emergency has passed and the testator is able to make a will in writing or by audio-visual recording, the nuncupative will made previously becomes invalid.

[13] Civil Code of the People’s Republic of China, Article 1139 A notarial will is executed by the testator through a notary institution.

[14] Civil Code of the People’s Republic of China, Article 1140 The following persons may not serve as will witnesses: (1) persons without capacity for civil conduct, persons with limited capacity for civil conduct, and other persons lacking the capacity to witness; (2) successors and legatees; (3) persons with an interest in a successor or legatee.

[15] Civil Code of the People’s Republic of China, Article 1142 A testator may revoke or alter their will. Where, after making a will, the testator performs a civil juristic act contrary to the contents of the will, it is deemed a revocation of the relevant provisions of the will. Where multiple wills have been made with conflicting contents, the most recent will prevails.

[16] Civil Code of the People’s Republic of China, Article 1124 After the opening of succession, a successor who renounces the inheritance shall express the renunciation in writing before the estate is disposed of; failure to express an intention is deemed acceptance of the inheritance. A legatee shall, within 60 days of learning of the legacy, express acceptance or renunciation of the legacy; failure to express an intention within the time limit is deemed renunciation of the legacy.

[17] Civil Code of the People’s Republic of China, Article 1158 A natural person may enter into a legacy-support agreement with an organization or individual other than a successor. Under the agreement, the organization or individual assumes the obligation to support the natural person during their lifetime and arrange their burial upon death, and enjoys the right to receive a legacy.

[18] Civil Code of the People’s Republic of China, Article 1125 A successor forfeits their right of inheritance if they commit any of the following acts: (1) intentionally killing the decedent; (2) killing another successor in order to compete for the estate; (3) abandoning the decedent or maltreating the decedent under serious circumstances; (4) forging, altering, concealing, or destroying a will under serious circumstances; (5) by fraud or coercion, forcing or obstructing the decedent to make, alter, or revoke a will under serious circumstances. Where a successor commits the acts specified in items (3) through (5) of the preceding paragraph and shows genuine repentance, and the decedent expresses forgiveness or subsequently names the successor as a beneficiary in a will, the successor does not forfeit their right of inheritance. A legatee who commits an act specified in the first paragraph of this article forfeits their right to the legacy.