How to inherit a property in China？
We experienced and will experience a lot of lucky matters as well as bad things. Losing someone brings a lot of pains. However, even they went to the heaven, they usually left some gift for you, their love remains.
Recently, we received a lot of consultation regarding the property inheritance in China. Generally speaking, to inherit a property in China, you can inherit through notarizing, litigation or by direct registration.
1. Inheritance via Notarizing
There are two means of notarizing an inheritance: by will or by operation of law, each based on different laws and regulations.
(i) Notarizing Inheritance by Will
A notarized will can secure the successor’s rights to inherit, and upon the validation of the will, personal assets and real estates of the testator will be deemed distributed following the terms of the will.
(ii) Notarizing Inheritance by Operation of Law
A notarization of inheritance by operation of law means that, in the event that a predecessor has passed away intestate, his/her assets and properties shall be inherited by successors that are on the highest order of inheritance in law.
Under Law of Succession of PRC, the order of the inheritance are: spouse, children and parents are first in order,
the second in order are brothers and sisters, paternal grand parents and maternal grand-parents.When succession opens, the successor(s) first in order shall inherit to the exclusion of the successor(s) second in order. The successor(s) second in order shall inherit in default of any successor first in order.
In relation to the fees and duration of notarization, the notary fee will be between 0.07%-0.8% of the value of the inherited property, the higher the value the smaller the percentage; notarization could be completed in one day provided that the notary office have all the documentation they need.
2. Inheritance by Litigation
You can also file a litigation to the people’s court at the place of the property to inherit your property. Once the case is accepted, you may ask for a pre-trial mediation, and sign a meditation agreement. This agreement, witnessed by a mediating judge, is legal and valid to verify your right to inherit.
To file a inheritance litigation, you have to prepare the following materials:
A bill of civil complaint;
Proof of identity of you and other successors (if have);
Power of Attorney (notarized and verified by Chinese Embassy)
Evidence: for example, the will, the title certificate of the property, death certificate, proof of information of legal successors, proof of familial relations and so on.
In relation to fees and duration of litigation, the litigation fee will be between 0.5%-2.5% of the value of the inherited property plus a fixed fee, the higher the value the smaller the percentage, and the higher the fixed fee. Litigation could be completed around 2-3 months provided that a meditation agreement is reached. If a meditation agreement cannot be reached, the litigation will proceed and it will take longer time to validate your inheritance, normally 6-8 months for the full process of trial of first instance.
3. Direct Registration
Under the new policy, it is possible to go to the local Real Estate Registry to register the title of the property without notarization. However, please note that this is a new policy, some Real Estate Registries may have not yet conducted any registration without notarization, they may reluctant to accept the application.
In relation to the fees and duration of litigation, the registry fee will be a fixed fee of RMB 80; the registration could be completed within 30 days from the date of appointment of registration if everything goes well.
In summary, it is possible to inherit a property through notarizing, litigation or by direct registration. However, because the specific policy of local notary office and Real Estate Registry may have some differences, it may cause the difference on the inheritance process. So for the three ways: notarizing, litigation and direct registration, whether one way worked, which way works best are always varied from case to case.
Larry Zhou, Partner
Landing Law Offices China
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