Society
Hostages to fortune fight for rich pickings
By Timothy Chui (China Daily)
Updated: 2011-02-10 07:22
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Blame each entity's unique system of law - Hong Kong's is based on the British system of common law - and the different judicial jurisdictions.
While the law of the land would be followed in the absence of a will, the transfer of movable assets such as bank accounts and shares is recognized on both sides. In Hong Kong, obtaining recognition of the will in court makes provisions on movable assets in the mainland effective.
However, a Hong Kong will that bequeaths property on the Chinese mainland will not be recognized; another will is required, written under mainland laws dealing with property.
Hong Kong's laws recognize foreign wills as written, but mainland law has "additional provisions, such as the need for a person's parents to be looked after, which will award a portion of the estate to surviving parents," said lawyer Billy Ma, who specializes in inheritance matters. Trying to bequeath a holiday home to your spouse will also require the deceased's parents to sign off, he said.
For those without a will in Hong Kong, spouses are entitled to the first half of all possessions, with the remaining half split between the spouse and any children in equal shares. If there are no children, the spouse inherits half and splits the remainder with the parents of the deceased.
If the deceased had no surviving parents, spouse or children, the estate goes to siblings or, if none is alive, to the deceased's nephews and nieces.
Finally, the government takes it all if there are no surviving close relatives. However,the courts are expected to hear a series of cases this year in which they will be asked to recognize more distant relatives as beneficiaries.
Officially dead
But before a beneficiary can collect, a death certificate has to be obtained. That's reasonably easy unless the will writer dies out of town.
For the estate of a Hong Kong resident who dies on the Chinese mainland, navigating the legal maze can be costlier, because death certificates are not recognized in Hong Kong unless they are approved by the Ministry of Foreign Affairs in Beijing. When the certificate is for the purpose of inheritance in Hong Kong, parties must declare the value of the estate, and they may be charged a percentage, Ma said.
Conversely, certifying the death of a mainland resident in Hong Kong can be done by a mainland attesting officer, for a fee, to activate the deceased's will under mainland law. The State takes no percentage.
Death outside the country would require certification by the respective Chinese consulate. Death certification is more seamless given Hong Kong's party to international law agreements.
(China Daily 02/10/2011 page1)