Chinese wills as a foreigner
Find here Daxue Talks episode 77. In this episode, Camille Xu, partner at Yingke law firm, shares her expertise on legal concerns surrounding establishing wills as a foreigner living in China.
Full transcript below:
What is the process and cost of getting a will done in China?
The process of getting a will done in China is like this: first of all you should find a lawyer to talk to and to let the lawyer know how would you like to distribute the assets, what’s your family status and how would you like to define guardianship issues in your will – you should talk to your lawyer. Then, the lawyer will design the written will in both Chinese and foreign language for you according to your thoughts and the lawyer will also make sure that the contents you are putting in your will are in line with Chinese laws. And that could be the end because in China we recognise the written will, but what we recommend is always to have a follow up step as to go to the notary public office to have your will notarised, because after writing down your will you can already sign it and you can already put your fingerprint on it, but it’s better to have someone to witness this will and according to the chines law the best way is to have it witnessed by a notary public.
What would happen is that there will be two notary publics to act as a witness and there will be an inquiry process with you. They will ask you – hey how old are you? What’s the purpose of you being here today? Are you healthy? Are you in clear mind? And you are doing this will but you make sure that you’re not deceived or forced by anyone, and the notary public will record everything on a paper and the other thing is that they will make a video record of all the process because it’s not just a paper. The notary public will help you to establish a video recording of the whole process of making the will to make sure that everything is done by yourself voluntarily and not forced by anyone, with a good status. And afterwards you will get a paperwork with a stamp by the notary public, as well as a DVD so that this will is completed and it would not be challenged anywhere in China. I think this will also be valid in foreign countries because it is a very good proof to show the whole process while you are making a will.
So that is the whole process. How long will it take? It depends for clients how long for them to make their mind, but after all the documents are prepared, they make their mind. The lawyers part would take like 1 month, 2 weeks, 1 month to have a will written and notary part would also take like 2 weeks. It’s not very long. And the cost as of today would normally vary from 12,000 renminbi to like 20,000 renminbi depending on the amount of your assets in China. If you have a very complicated, very large amount of assets then it would be more expensive but if you don’t have much, one apartment – some bank accounts, its normally 12,000 renminbi the cost.
Theoretically speaking say that someone has 1 million renminbi sent in his or her Chinese bank account. If this person passed away unexpectedly, how could the heir withdraw the money in an account?
It’s a very good real-life example, yes that might happen to a lot of expats in China. If you have bank accounts and you pass away, first thing is that your heir must have a document, a written document and as I said from the last question. Whether a foreign will would be recognised, that’s the first thing. If you just bring a piece of paper to the bank, the bank probably wouldn’t be able to confirm whether it’s the right document, it’s the right person to be authorised to take out your money. So first of all, the person who is handling that should prove that he is the heir. He is heir, so a will would help to clarify this issue.
The other question is that – how many heirs will there be involved in handling this bank account? Maybe in your will you have defined several heirs, your daughter, your wife – they should both be able to handle that. In that case what we recommend and what probably the bank would request is that you go through a probate process in China, a probate process normally carries on with a notary public or the court. So, you should bring the will and go to the notary public and to make sure that who should handle which part of the matter – for example the bank account or the real estate and make things clear with the probate process and if a document is stamped with the notary public or with a court, then this document would be accepted by a Chinese bank and you can withdraw the money.
So we are talking about a large about of money like 1 million renminbi – but if you just have minor savings in Chinese bank accounts, for example just like 10,000 renminbi – not that much, there are simplified ways that maybe you can write down your bank account and password and keep it in a secret box and when your heir sees that box, he/she could easily withdraw the money from the ATM machine. But if we are talking about large amounts of money then you should have a will and you should go through a probate process to be able to transfer that money.
If someone doesn’t have many assets and have only been living in China for a short period, do you believe this person needs a will? In what cases do you recommend making a Chinese will for foreign residents of China?
A very, very good question. Because we are talking about estate management and because I know there are many expats, they are living in China for a short period or indefinite period, they don’t know how long they will stay, they’re just working here and they don’t have – they are not going to buy an apartment here or they have just minor savings in China – in that case I don’t think they really need a Chinese will because it costs and it takes time to do that.
Those who I recommend will definitely have a Chinese will – those will be the person first – they will be in China for a long time. They know that they will be living here for like 10 years or over 10 years – 20 years. So that’s the first category.
Then the second is mixed couples – so if you are a mixed family, if you are marrying a Chinese – then you need a Chinese will because involvement of Chinese laws would be much more important than pure foreign families and if you are having real estate in China, you must have a Chinese will, because we are talking about dealing with the Chinese real estate bureau in future. You have your property deed under your name, after you pass away only the Chinese real estate bureau could change your name on it and they only follow the Chinese laws and Chinese wills. So, if you have real estate in China you must have a Chinese will and if you have large amount bank savings, for example like over 1 million renminbi, then you should consider having a Chinese will. Other than that, I don’t think that it’s necessary for you to have a Chinese will.
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