Overseas Chinese Returned, How to Inherit Domestic and Overseas Heritage

Case:

In 1993 Mr. Lin came from Luohu District, Shenzhen, Guangdong Province to Canada to work and live. He met Ms. Gong in Toronto, Canada. After a long period of time to get along and communicate, they went through the legal process of marriage registration in Canada. After marriage, they had a son and a daughter. On January 19, 2012, Ms. Gong died of illness. On February 12, 2013, Mr. Lin returned home with his daughter and settled in Shenzhen. The son stayed in Canada and got Canadian citizenship. After Mr. Lin returned home, he bought 2 commercial apartments in Shenzhen.

On July 24, 2015, Mr. Lin died, leaving the domestic heritage of 2 sets of commercial apartments, bank deposits with amount of RMB300,000; the legacy abroad is a house in Toronto, Canada, and deposits equivalent to RMB400,000. After learning of his father’s death in Canada, Mr. Lin’s son rushed back from Canada to claim his domestic heritage in China, while Mr. Lin’s daughter demanded to inherit his father’s estate abroad. As a result of the dispute between the brother and sister, Mr. Lin’s son started a law suit through the Shenzhen Futian District People’s Court for the legal division of his father’s estate.

Analysis:

  1.  this case should be considered as a foreign-related inheritance case.

Foreign-related inheritance means that there is one or several inheritance in the constituent elements of the inheritance relation involving foreign countries, that is, the inheritance of foreign-related factors. It is mainly manifested in the following three aspects:
a). Subject is foreign related; b). Objects are foreign related; c). the relevant legal facts of the inheritance are foreign-related.

In this case, there are two foreign factors: first, the subject is foreigner, Mr. Lin’s son has Canadian nationality. The other foreign factor is the object. In Mr. Lin’s estate, some of them are in foreign country (Canada). Therefore, this case is a case of foreign inheritance.

2. Legal application of foreign inheritance cases

With regard to foreign inheritance cases, article 36th of China Inheritance law stipulates that Chinese citizens inherit their inheritance outside the People’s Republic of China or inherit the inheritance of foreigners in the territory of the People’s Republic of China, that movable property is applicable to the law of the place of residence of the heirs, and that immovable property is applicable to the local law of the place that it is located. The foreigner inherits the estate in the territory of the People’s Republic of China or inherits the estate of a Chinese citizen outside the People’s Republic of China, the movable property applies to the law of the decedent’s residence, and the immovable property is applicable to the local law of the place that it is located. If the People’s Republic of China has treaties and agreements with the involved foreign country, it should be in accordance with treaties and agreements. Mr. Lin’s deposits in foreign inheritance are movable property and the house are real estate. According to article 36th of the Inheritance Act, movable property applies to the law of the place of residence of the decedent. Mr. Lin has a registered household in Shenzhen, and his place of residence should be recognized as it is in China. Therefore, Mr. Lin’s children inherit Mr. Lin’s deposit in foreign countries and should be applicable to Chinese law. And real estate abroad is applicable to the law of the location of real estate.

Mr. Lin’s estate in China contains movable and immovable property, according to article 36th of the Chinese Inheritance law, movable property is applicable to the law of the place of residence of the decedent, real estate is applicable to the law of the location of immovable property. Therefore, inheriting Mr. Lin’s domestic heritage and should be applicable to Chinese law.

3. legal succession should be applied in this case.

Legal succession refers to a form of inheritance in which the scope of heirs, the order of succession and the principle of distribution of inheritance are directly defined by law in the absence of a will from the disposition of their estate by the decedent. Legal succession is also known as intestate succession. In the legal succession, the heirs who can participate in the inheritance, the order in which the heirs participate in the inheritance, the share of the inheritance, and so on, are directly and clearly stipulated by the law.

As Ms. Gong and Mr. Lin’s parents died earlier than Mr. Lin, in accordance with the principle of legal succession, the heirs who met the conditions of succession were only Mr. Lin’s son and daughter. According to the Inheritance Act, Mr. Lin’s son and daughter are heirs to the first order, and the inheritance rights are equal to men and women, while the share of the heirs inheriting the inheritance in the same order should generally be equal. As a result, Mr. Lin’s children have the same inheritance rights as Mr. Lin’s RMB400,000 (equivalent) deposit in Canada and 2 sets of commercial apartments and RMB300,000 deposits in China. For the real estate of Mr. Yulin in Canada, the children also have the same inheritance rights under Canadian law.

In conclusion, Mr. Lin’s children have the same inheritance rights to Mr. Lin’s inheritance both in China and abroad. Mr. Lin’s inheritance in China and abroad should be divided equally between Mr. Lin’s children and two people.

Related law:

Inheritance law of the People’s Republic of China

Clause#9: equal rights of inheritance between men and women.

Clause#10: Inheritance is inherited in the following order:
First Order: spouse, child, parents.
Second order: Siblings, grandparents.
The children referred to in this Act include children born in or out of wedlock, adopted children, and stepchildren with a dependency relationship.
Parents referred to in this Act include biological parents, adoptive parents and stepparents with a dependency relationship.
The brothers and sisters referred to in this law include siblings, half-siblings or half-siblings of their parents, brothers and sisters, and dependent brothers and sisters with a dependency relationship.

Clause#10: the share of the heirs inheriting the inheritance in the same order shall generally be equal.
Heirs who lack the ability to work with special difficulties in their lives shall be cared for in the distribution of their inheritance.
The heirs who have fulfilled their primary support obligations to the heirs or who have lived with the heirs, may distribute the inheritance with a greater portion.
Heirs with capacity and conditions to support the living of decedent, who do not fulfill obligation to support, shall be allocated no distinction or less in the distribution of the inheritance.
If the heirs agree to negotiate, they can also be unequal.

Clause#36:  the inheritance of Chinese citizens in the territory of the People’s Republic of China or the inheritance of foreigners inherited in the People’s Republic of China, movable property is applicable to the law of the place of residence of the decedent, immovable property is applicable to the law of the place where it is located.

The foreigner inherits the inheritance in the territory of the People’s Republic of China or inherits the inheritance of a Chinese citizen outside the People’s Republic of China, the movable property is applicable to the law of the decedent’s place of residence, and the immovable property is applicable to the law of the place where it is located.
If the People’s Republic of China has treaties or agreements with foreign countries, it shall be handled in accordance with treaties and agreements.

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