China Cross-Border Estate: Probating a Foreign Will over Chinese Assets

The following is general information on cross-border succession to assets located in China, not legal advice for any specific estate. Choice-of-law outcomes, notarial practice and registration requirements vary by province and by the facts of the case; confirm the operative documents and procedures with qualified PRC counsel before acting.

A foreign will still has to run through Chinese procedures

The first thing to understand about cross-border estate administration in China is that a will does not complete the transfer by itself. If the deceased left a will executed in London, New York or Singapore, that will is the evidence of intention — but a Chinese real-estate registration centre, bank and company registrar will not act on it directly. They act on Chinese documents: most commonly a notarial certificate of inheritance rights, or, where heirs disagree, a court judgment. Probating a foreign will over Chinese assets is therefore three tasks run in sequence: establish that the will is valid under the law that governs it, establish the beneficiary's entitlement under the law that governs the succession, and complete the local formalities that actually move title.

Two separate questions decide which law applies

China's conflict-of-laws rules are set out in the Law on the Application of Law for Foreign-related Civil Relations (涉外民事关系法律适用法), adopted in 2010 and in force since 1 April 2011. It remains the governing statute — the Civil Code did not repeal it. Two of its articles matter most, and they answer different questions.

• Which law governs the succession itself. Article 31 adopts the distinction familiar to common-law practitioners: movable property is governed by the law of the deceased's habitual residence at death, while immovable property is governed by the law of the place where it is located. The statutory succession to a Chinese apartment, office or plot of land is therefore governed by the Inheritance Book of the Civil Code, regardless of the deceased's nationality or habitual residence. (Article 36, the general rule that rights in immovable property follow the law of the property's location, is the property-law rule; Article 31 is the inheritance-specific rule.)
• Which law governs the will itself. This is where the analysis usually turns. Article 32 covers the manner (formal validity) of a will and is deliberately generous — a will is formally valid if it complies with any one of the law of the testator's habitual residence at the time of making or at death, the law of nationality at those times, or the law of the place where the will was made. Article 33 then governs the substantive validity of the will, pointing to the law of habitual residence at the time of making or at death, or the law of nationality.

The practical lesson is not to collapse the two questions. A Chinese court may apply the Civil Code to the succession while applying a foreign law — English law, New York law, the testator's national law — to decide whether the will was validly made. It is entirely possible for a will to be valid under the testator's own law and still to require Chinese formalities, including proof of that foreign law's content, before Chinese institutions will recognise it. Where foreign law is decisive, its content has to be established under Article 10 of the conflict-of-laws statute — by the parties, and where necessary by the court or notary through the available channels.

The practical route: a notarial certificate of inheritance rights

For an uncontested estate, the standard instrument is the notarial certificate of inheritance rights (继承权公证书), issued by a Chinese notary office — in practice the office where the immovable property is located or where the principal part of the estate is situated. The heirs should expect to produce:

• the death certificate, authenticated — since 7 November 2023, when the Hague Apostille Convention took effect for China, foreign death certificates, wills and probate grants are generally authenticated by apostille rather than consular legalisation;
• the will, with the formal-validity check under Article 32 performed explicitly;
• proof of identity and of the relationship between the deceased and each claimant; and
• where foreign law governs the will's validity, evidence of the content of that foreign law.

Once the notarial certificate is issued, title is completed at the local real-estate registration centre under the Interim Implementation Rules for the Registration of Immovable Property, and the certificate — or a court judgment — is what banks require to release deposits. Simplified procedures exist for withdrawing small balances, but the applicable ceilings change, so treat the amount as subject to the latest official rules. Where heirs contest the will, litigation is the alternative: a Chinese court judgment confirming the inheritance can substitute for the notarial certificate and is then presented to the same registrars and banks.

Rules that quietly change the outcome

• The latest will wins. Article 1142 of the Civil Code provides that where several wills conflict, the most recent prevails, and the old rule that a notarised will automatically outranked later wills has been abolished. A notarised will still tends to be the most readily accepted instrument at the notary office and the registration centre.
• The mandatory share. Article 1141 requires a will to reserve a necessary share for an heir who lacks labour capacity and has no source of income; a provision that fails to do so is ineffective to that extent.
• Witness eligibility. Article 1140 excludes heirs, legatees and other interested persons from acting as witnesses — a detail that invalidates more wills than clients expect.
• The estate administrator. Articles 1145 to 1149 let a will appoint an administrator to take inventory, settle debts and distribute the Chinese assets, which is useful when the beneficiaries cannot travel to China.
• Heirless estates. Article 1160 provides that where no heir or legatee takes, the estate falls to the state for public-interest purposes; Article 35 of the conflict-of-laws statute sends heirless immovables to the law of their location, so Chinese real estate reverts under Chinese law.

A checklist before you act

• Confirm the deceased's habitual residence and nationality at death — they drive Articles 31, 32 and 33.
• Separate the will's formal validity (Article 32), its substantive validity (Article 33) and the succession (Article 31) in the analysis.
• Assemble and apostille the death certificate, will and any foreign probate grant before approaching the notary.
• Identify which Chinese institution holds each asset — the registration centre, each bank, the company registrar — because each has its own acceptance practice.
• Where foreign law matters, be ready to prove its content, not merely assert it.
• Check the mandatory-share and witness rules before relying on the will as drafted.

For the underlying will formalities and the Civil Code's succession rules, see our guide to estate planning and wills for foreigners with Chinese assets, and for the interaction between succession and family claims, see international divorce and inheritance involving Chinese assets.

The provisions summarised here are current as of the date of writing; notarial and registration requirements vary by locality and by the institution, so confirm the operative documents and thresholds with the local notary office, bank and registration centre.