How to inherit the heritage of Hong Kong and Macao when Ningbo encounters it? The legal application, notarization transmission and processing path of cross-border inheritance.

The decedent has real estate and deposits in Hong Kong and Macao, and his relatives in the mainland will handle the inheritance after his death. The first step of this kind of "cross-border inheritance" is not "which window to go to", but "according to which law, by whom, and which materials can be accepted". The rules of the three places are different from the form of the document. They run as a set of processes and are often returned by notaries or real estate registration agencies.

According to the current rules, the following is a clear explanation of the application of the law, how to handle the heritage of the two places separately, how to use Hong Kong and Macao documents in the mainland, and how to prosecute disputes. The specific list is subject to the requirements of the accepting authority.

1. first decide on three things: whether it involves Hong Kong and Macao, according to which law, and who has the right to inherit it.

The laws of the Mainland are not always applicable to inheritance in Hong Kong and Macao. According to the (I) of the Supreme People's Court on the Interpretation of Several Issues Concerning the Application of the Law on the Application of the Law on Foreign-related Civil Relations in Hong Kong and the People's Republic of China, the law is applied by reference to the application of the law concerning civil relations in Hong Kong and Macao, and the applicable law directly determines the scope, order and share of heirs.

1. Legal inheritance: movable property and immovable property are judged separately.

Article 31 of the Law stipulates that the legal inheritance shall be governed by the law of the habitual residence of the decedent at the time of his death; however, the legal inheritance of immovable property shall be governed by the law of the place where the immovable property is located. Therefore, real estate in the Mainland is treated according to the inheritance of the Civil Code of the Mainland, real estate in Hong Kong and Macao is treated according to local law, and movable property abroad is treated according to the habitual residence of the decedent at the time of his death.

2. The link between the manner and effect of the will.

Article 32 of the Act provides that a will shall be established if it complies with the law of the testator's habitual residence at the time of the testator's will or death, the law of the State of nationality or the law of the place of the testator's habitual residence at the time of death, and article 33 provides that the validity of a will shall be governed by the law of the testator's habitual residence or the law of the State of nationality at the time of death. Therefore, a will made in Hong Kong may be established in accordance with the law of the place of conduct, and the effect shall be judged by the law of the place of habitual residence or the country of nationality.

3. The place of habitual residence is not equal to the place of household registration or identity document.

The regular residence should be determined in combination with the fact of residence, which is related to "continuous residence and taking the place as the center of life. Holding a Hong Kong and Macao identity document does not of course mean that the place of habitual residence is in Hong Kong and Macao; those who live, work or seek medical treatment in Hong Kong and Macao for a long time may be deemed to have their habitual residence in Hong Kong and Macao even if they retain their household registration in the mainland.

What to do with the 2. mainland heritage: real estate, deposits, equity go separately.

Mainland real estate, deposits are the most common targets, the idea is "first analysis of property, then the right, after registration".

1. Analyze the production first, then determine the scope of the heritage.

If the real estate or deposit belongs to the joint property of the husband and wife, half of the spouse (or the share determined in accordance with the agreement and the applicable law) shall be divided first, and the remaining part shall be the estate. The marital property relationship itself also has the applicable law: according to article 24 of the Act, the parties may agree to choose to apply the law of one of the habitual residence, the law of the State of nationality or the law of the place of principal property, and if they do not choose, the law of the common habitual residence, etc.

2. Notarization of inheritance rights when there is no dispute

according to Article 25 of the notarization Law, notarization involving real estate shall be submitted to the notary institution where the real estate is located. If there is no dispute and the materials are complete, you can apply for the notarization of the right of inheritance to the notary office where the real estate is located or where the main heritage is located, and handle the transfer, withdrawal and equity change with the "Notary Certificate of Inheritance.

3. Sub-channel docking of registration agencies and financial institutions.

The real estate office transfer registration and complete the tax declaration; the deposit is withdrawn or transferred from the bank by notarial deed; the equity of the limited liability company shall be subject to the articles of association, other shareholders' opinions and registration procedures, and shall be subject to litigation confirmation before change if necessary.

What about 3. Hong Kong and Macao heritage: the procedures of the two places go through each other

1. Hong Kong Heritage: Obtaining "Letter of Grant" First"

if the decedent has made a will before his death, he is usually required to apply to the Estate Office of the High Court of Hong Kong for probate. If the will only disposes of mainland property and cannot apply for certification in Hong Kong, it may be reinforced in practice by a Hong Kong lawyer by issuing a legal opinion, whether it can be accepted or not, subject to the requirements of the mainland notary office and the court.

2. Macao heritage: determine the inheritance qualification according to local procedures

macao belongs to the same civil law system, and its inheritance system (including special leave, etc.) is different from that of the mainland and Hong Kong. In the case of Macao heritage, it is generally necessary to confirm the qualifications of heirs in accordance with local procedures and obtain corresponding documents.

3. Mainland courts generally do not directly dispose of foreign estates

in the case of a lawsuit only in the Mainland, the Mainland courts usually do not directly confirm or divide the estate of the decedent located in Hong Kong and Macao, and the overseas part generally needs to be resolved separately in the place where the estate is located, and under certain circumstances, it may also be dealt with indirectly by way of payment offset.

How can instruments formed 4. Hong Kong and Macao be accepted in the mainland?

1. Hong Kong and Macao special channel: entrust notary public and add seal to transmit

unlike foreign documents that go through the "local notarization plus embassy and consulate certification", civil and commercial documents formed by Hong Kong and Macao that need to be used in the Mainland go through a special channel: first, a Chinese entrusted notary (Hong Kong/Macao) appointed by the Ministry of Justice will handle the notarization, and then the Chinese Legal Services (Hong Kong/Macao) Co., Ltd. established by the Ministry of Justice in Hong Kong and Macao will be verified and stamped with a special seal for transmission; documents from Hong Kong and Macao that have not been notarized and transmitted with seals cannot generally be accepted by the Mainland.

2. Convergence with the rules of evidence in litigation

in litigation, official documents and certificates formed in Hong Kong and Macao also need to go through the certification procedures. Such materials are usually notarized and transmitted by entrusted notaries before they can be used as legal and valid evidence.

3. Clear purpose before determining the form of the instrument

before handling, you should first think about whether the document is for the mainland notary office, registration institution or court. The purpose will affect the name and content of the declaration, such as the declaration of kinship and testamentary status, the declaration of inheritance, and the declaration of abandonment of inheritance.

How to Go 5. Dispute: Jurisdiction and Litigation Path

1. Jurisdiction of succession disputes

according to Article 34 of the Civil procedure Law, a lawsuit brought over a dispute over inheritance shall be under the exclusive jurisdiction of the people's court of the place where the decedent has his domicile or the place where his main estate is located at the time of his death; the special provisions on foreign-related civil litigation shall apply to cases involving Hong Kong and Macao. Inheritance disputes are not classified as "real estate disputes.

2. Mutual recognition and enforcement of judgments

separate arrangements have been established between the Mainland and Hong Kong for the mutual recognition and enforcement of judgments in civil and commercial cases and civil judgments in marriage and family cases, and there are also arrangements for the mutual recognition and enforcement of civil and commercial judgments between the Mainland and Macao. However, whether a case of inheritance can be applied for under a certain arrangement and what materials are needed shall be subject to the scope of application of the arrangement and the requirements of the accepting court.

3. Evidence and parallel proceedings

evidence formed outside the country needs to be notarized and transmitted with additional chapters; The facts of residence in the place of habitual residence need to be supported by entry and exit records and residence materials. The same inheritance matter may be involved in litigation in both places at the same time. The Civil Procedure Law amended in 2023 provides for parallel litigation, and the suspension is at the discretion of the court.

6. common misconceptions: these few words of "experience" are mostly not allowed.

1. "A will made in Hong Kong is not recognized by the Mainland"

the will shall be established in accordance with the law of the place of the will, and the effect shall be judged by the law of the testator's habitual residence or country of nationality at the time of the will or death. What really needs to be supplemented is the authenticity of the will, whether it is the last valid will and the transfer procedure in the mainland.

2. "If you have Hong Kong and Macao status, you cannot inherit mainland real estate"

whether the heir is a Hong Kong and Macao resident does not affect his or her eligibility to inherit the estate of the Mainland in accordance with the law, but only affects the form of the materials submitted (subject to notarization and transmission with additional chapters). If the estate is a mainland property, the scope and share of the heirs are still determined in accordance with mainland law.

3. "It must be done in Hong Kong and Macau before it can be done in the Mainland"

there is no rigid order of "Hong Kong and Macao first, then the Mainland" between the two procedures, and many links can be parallel. However, if it is necessary to prove the validity of the will, or if the overseas estate itself is to be dealt with in Hong Kong and Macao, documents such as the grant and legal opinion of Hong Kong and Macao cannot be omitted.

7. FAQ

the heir has real estate in Hong Kong and the mainland. Where should he do it?

The principle is "separate, parallel". Mainland property is treated in accordance with Mainland procedures and Hong Kong property is treated in accordance with Hong Kong procedures, as the legal inheritance of real estate is governed by the law of the place where the real estate is located. If the estate has only mainland real estate and the heir's usual place of residence at the time of death is also in the mainland, the substantive rules are mainly run through the mainland laws, and Hong Kong and Macao are mainly proof of identity and kinship.

What should be done if the kinship certificates issued by Hong Kong and Macao are not recognized in the Mainland?

Generally, it can only be solved by "entrusting a notary and adding a seal": relatives go to the Chinese entrusted notary office in Hong Kong or Macao to handle the kinship statement and sign it, and the mainland notary office or the people's court will accept it only after the China Legal Services (Hong Kong/Macao) Co., Ltd. has examined, added a seal and transmitted it. Documents issued by Hong Kong and Macao civil affairs authorities or ordinary lawyers alone are usually not enough to be used in the mainland.

If other heirs do not cooperate and cannot be contacted, can they still do it?

Notarization of inheritance rights requires all heirs to be present or make a clear intention. Once someone does not cooperate or their whereabouts are unknown, and the notarization path is blocked, the lawsuit shall be promptly transferred to the court where the decedent's domicile or main estate is located at the time of death. If the defendant's whereabouts are unknown, it can be dealt with in accordance with the provisions of the public notice.

Practical Experience of 8. Lawyers

the first step in taking over the inheritance involving Hong Kong and Macao is not to find a notary office, but to draw a "legal map" first ". Verify the situation of the decedent one by one: where is his habitual residence at the time of death, whether there is evidence (entry and exit records, Hong Kong and Macao residence and medical treatment materials, mainland work records), nationality or residence status, property under his name listed according to location and nature, which is the common property of husband and wife, will and its form and place of conclusion. This table determines which law is applicable to each property, who has the right of inheritance and which path to take. The most common mistake is to think that all the houses in the mainland will be handled according to the mainland law and only go through one procedure. As a result, they are stuck in the share of movable property or spouse abroad.

The second step is to arrange the material list and the processing rhythm at one time. Documents formed in Hong Kong and Macao need to be notarized by a notary and transmitted with additional chapters. This chain usually needs to be reserved for more than several weeks. It may also be due to material correction and communication between Chinese translations. Don't wait for the transfer window to urge the materials to start. The prudent approach is to first confirm with the mainland notary office or the court to be sued what documents are needed and how to write them, and then arrange for notarization in Hong Kong and Macao at one time. The mainland side is promoted according to the sub-article of "real estate-deposit-equity": real estate shall be notarized or litigated first, and then tax declaration and transfer registration. Multiple lines can be parallel, but the identity and kinship materials submitted by different institutions should be of the same caliber, otherwise one place will be returned and repeated everywhere.

The third step is to deal with disputes and avoid pits. If there are differences between the heirs, the focus should be shifted from "accreditation" to "fixed evidence and application of law" as soon as possible, focusing on the place of habitual residence, the nature of the husband and wife's property and the validity of the will. In terms of jurisdiction, inheritance disputes are under the exclusive jurisdiction of the people's court in the place where the decedent's domicile or main estate is located at the time of death. Before filing a lawsuit, one must think clearly which court will be the main court. It should also be clear that mainland courts generally do not directly dispose of overseas heritage, and it may not be feasible to "take mainland judgments first and then go to Hong Kong and Macao for enforcement. When negotiating, don't just talk about "what percentage", first talk about "where to use the law, according to what rules to determine the share. Common pits include: ignoring the common share of the spouse and counting the inheritance without first analyzing the property; The contents of wills in the two places overlap and even fight with each other. Missing the last valid will; Take the Hong Kong and Macao documents transmitted without notarization and seal to the test window. The main line of the application of the law is clarified, and the subsequent notarization, transmission, registration and litigation will have a stable landing point.