A parent or grandparent has died in mainland China and left an apartment in Guangzhou, a bank deposit in Shanghai or a share of a family home in a smaller city. You live in Australia and became an Australian citizen years ago. Can you still inherit, and how do you deal with Chinese notaries, registries and banks from Melbourne or Sydney?
The short answer is that foreign nationals, including Australian citizens, can generally inherit property in mainland China. The process, however, is run under Chinese law and by Chinese institutions, and an Australian grant of probate usually plays no part in it. This article gives a general overview. Every matter in China should be handled with a qualified PRC lawyer, and we work alongside PRC counsel for that reason.
Which law applies
Under China’s conflict-of-laws rules, intestate succession generally follows the law of the place where the deceased habitually resided at death, but succession to immovable property (land and buildings) follows the law of the place where the property is located. In practice, that means real estate in mainland China passes under PRC law even if the deceased lived in Australia. A Will made overseas may still be recognised in China if it is valid under the rules China applies, which look to the law of the testator’s habitual residence or nationality, or the place the Will was made.
PRC succession law: heirs and Wills
Succession in mainland China is governed by Book Six of the Civil Code, in force since 1 January 2021.
Where there is no Will
- First order: spouse, children and parents. Children include adopted children and stepchildren who were raised by the deceased.
- Second order: brothers and sisters, paternal grandparents and maternal grandparents. They inherit only if there is no first-order heir.
- Representation: if a child died before the deceased, that child’s descendants take the child’s share. If a sibling died first, the sibling’s children can take the sibling’s share.
- A widowed daughter-in-law or son-in-law who was the main carer of a parent-in-law is treated as a first-order heir.
Heirs of the same order usually share equally, but the share can be adjusted for an heir in financial hardship, an heir who cared for or lived with the deceased, or an heir who could have supported the deceased and did not. Heirs can also agree to unequal shares.
Where there is a Will
The Civil Code recognises handwritten Wills, Wills written by another person, printed Wills, audio or video Wills, oral Wills in emergencies and notarised Wills. Apart from handwritten and notarised Wills, most forms require at least two witnesses, and there are rules about who may act as a witness. Disputes over Chinese Wills are common, so the form and the witnesses matter.
继承权公证 or court: the two main routes
Inheritance notarisation (继承权公证). Where all heirs agree, the usual route is to apply to a notary office in China, generally near the property, for a notarial certificate confirming who is entitled. The notary examines the documents, often interviews the heirs and checks that no-one is left out. The certificate is then used to transfer title at the real estate registration centre, or to claim bank deposits. Notary offices can be cautious with foreign documents, and every heir in the relevant order usually needs to take part, including heirs who want to renounce their share.
Court proceedings. Where heirs disagree, cannot be located, or the notary will not proceed, an heir can sue in the People’s Court where the deceased was domiciled or where the main estate is located. A judgment or court-recorded settlement can then be used to register the transfer.
Australian heirs do not always need to travel. A PRC lawyer can act under a power of attorney, but the power of attorney itself must be properly notarised and apostilled in Australia.
Documents needed from Australia
Chinese notaries and courts generally require evidence of identity, family relationships, marital status and, where relevant, the death of other family members. From Australia this commonly includes:
- your passport and proof of any change of name;
- birth and marriage certificates showing your relationship to the deceased;
- death certificates of any family member who died in Australia;
- a statutory declaration or affidavit setting out the family tree;
- where the deceased lived in Australia, their Australian Will and death certificate;
- a power of attorney appointing a PRC lawyer or relative to act.
China joined the Hague Apostille Convention with effect from 7 November 2023. Australian public documents, and private documents first notarised by an Australian notary public, can now be apostilled by the Department of Foreign Affairs and Trade for use in China, replacing the older process of authentication followed by Chinese consular legalisation. Chinese translations are usually also required, and some notary offices specify which translation agencies they accept.
Can a foreigner own the inherited property?
Inheritance is generally treated differently from purchase. Local rules restrict foreigners buying property in many Chinese cities, but heirs who are foreign nationals can generally inherit and register title to real estate in China. Local practice varies between cities and changes over time, so your PRC lawyer should confirm the position with the local registration centre. Any mortgage must usually be dealt with, and registration fees and some taxes apply, although China does not have an estate or inheritance tax.
Getting the proceeds out of China
China maintains foreign exchange controls. Heirs who are foreign nationals can generally convert and remit inherited funds, including the proceeds of selling an inherited property, through a Chinese bank once the bank is satisfied with the documents: usually the notarial certificate or judgment, title and sale documents and evidence that taxes have been paid. Banks apply their own procedures, and it can take time. Plan for this before signing any sale contract.
On the Australian side, the inheritance itself is generally not taxed as income, but later income and gains on the asset may need to be reported, and large transfers into Australia may be queried by your bank.
Practical steps
- Collect the deceased’s title certificate, Chinese ID or household registration, bank details and any Will.
- Draw up a family tree covering all first-order heirs, including any who have died.
- Engage a PRC lawyer in the city where the property is located and confirm exactly which documents the notary office or court needs.
- Prepare and notarise the Australian documents, then obtain apostilles from DFAT.
- Arrange Chinese translations in the form the notary office accepts.
- Decide among the heirs whether to keep or sell, and how proceeds will be remitted.
Frequently asked questions
Can an Australian citizen inherit property in China?
Generally yes. Foreign nationality does not stop you inheriting real estate or bank deposits in mainland China, although the process runs under PRC law through a Chinese notary or court. Local registration practice should be confirmed for the particular city.
Do I need to go to China to claim the inheritance?
Not always. A PRC lawyer or trusted relative can usually act for you under a notarised and apostilled power of attorney. Some notary offices still ask heirs to attend or appear by video.
Does an Australian grant of probate cover property in China?
No. Mainland China does not reseal Australian grants. Chinese property passes through a Chinese notarial certificate or court judgment, although the Australian Will and grant may be used as evidence.
Is there inheritance tax in China?
China does not currently impose an estate or inheritance tax. Registration fees and certain transaction taxes may apply when title is transferred or the property is later sold.
How Chua Tan Associates can help
We assist Australian families inheriting property and deposits in mainland China. Our notary public can notarise powers of attorney, statutory declarations and copies of Australian certificates for apostille, and we coordinate with PRC lawyers in the city where the property is located so that the documents prepared in Australia match what the Chinese notary office or court requires. We advise in English, Mandarin and Cantonese, and can also deal with the Australian side of the estate, including any Australian Will, grant and tax questions.
Related reading
Chua Tan Associates acts for families, executors, trustees and their professional advisers in estate planning, estate administration and estate disputes in Australia and across borders. To arrange a confidential consultation, please contact our Melbourne office on +61 3 9602 3988 or submit an enquiry. Advice is available in English, Mandarin and Cantonese.
Justin Chua (蔡智勋), lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal or tax advice.
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