First of all, you need to know whether the decedent has a will and whether you have inheritance rights in the will.
If the decedent does not have a will, then you also need to know whether you are the heir in intestate inheritance. That is, whether you are the decedent’s parent, child, or spouse, if the governing law is Chinese law.
This post was first published in CJO Family, which is committed to providing consulting services China-based cross-border family matters services, including marriage and succession.
We will use a fictional succession-related story to illustrate how inheritance works in China.
Here is a hypothetical scenario.
Your father has passed away, but your mother is still alive.
Your paternal grandparents are also alive.
Your parents have two children, you and your brother. In addition, your father was once divorced and has a son with his ex-wife. Besides, your father has an illegitimate child. Therefore, your father has four children in total.
Your parents have community property of CNY ten million in cash. In addition, your father himself has CNY three million in cash, which belongs to your father with your mother’s assent.
Your father does not have any unpaid debts or taxes.
Also, your father made a will while alive, which distributed CNY one million to his illegitimate child from his estate.
And under Chinese law, how much can you inherit?
I. How much is your father’s estate?
Your father’s estate is CNY eight million in cash, including CNY five million in cash that comes from half of your parents’ community property of CNY ten million in cash, as well as CNY three million in cash that your father personally owns.
II. Who has the right to inherit your father’s estate?
Where there’s a will by your father, the successors designated by your father in the will can inherit his estate.
Where there isn’t a will by your father, or there is a residue of your father’s estate after it has been partitioned in accordance with the will, the succession should be determined in accordance with law.
Therefore, your father’s illegitimate child is a testamentary successor, and a total of seven people including your mother, your paternal grandparents, and your father’s four children (including his illegitimate child and his son from his ex-wife) are intestate successors.
III. How the estate is partitioned between the successors?
First of all, testate succession shall prevail when partitioning your father’s estate. Therefore, CNY one million out of the CNY eight million shall first be distributed to the illegitimate child, as the testamentary successor, under the will.
After that, the remaining CNY seven million should be partitioned equally among the seven intestate successors in accordance with law. Therefore, your mother, your paternal grandparents, and your father’s four children (including the illegitimate child who has already been distributed CNY one million under the will) will each inherit CNY one million.
Upon completion of the inheritance,
(1) your mother owns CNY five million out of their community property and inherits CNY one million. She now owns a total of CNY six million;
(2) your father’s illegitimate child is distributed CNY one million in accordance with the will (testate succession) and CNY one million in accordance with law (intestate succession). He inherits a total of CNY two million; and
(3) your paternal grandparents and your father’s other three children each inherits CNY one million.
The Cross-border Family Matters 101 Series (‘CFM 101 Series’) provides an introduction to China-related cross-border family matters (marriage and succession), and covers the knowledge essential to cross-border family matter management.
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Contributors: Meng Yu 余萌