I am handling an estate inheritance matter. The deceased was Chinese legally married to a UK citizen and have two children who were born in China but are UK citizens and are still minors.
Before death, the deceased had lived in UK for more than 10 years. However just one year earlier, the deceased, using his Chinese identity bought a property in Beijing China, worth more than half a million pounds.
The deceased had estates in both UK and China, and estate in UK was duly reported but the China property was not.
He made a will in Chinese language about the China property bequeathing it to both children.
So if I have to complete the inheritance of China property based on his Chinese Will and transfer title to the two minor children, will that incur UK inheritance tax?
From my research, in order to extend UK IHT to overseas estates, the deceased shall be considered as domiciled in UK, but given the situation above, is IHT likely in this case?
Thanks for any advice on this.
Have you established his domicile?
If he is domiciled in E&W, his worldwide estate will need to be reported. If not, the Chinese estate will not be included.
Thanks, Patrick, yes, I should have found the link. It seems very clear that the deceased was not considered domiciled in UK.
So the children after inheriting the China property won’t be paying any tax on it.
I would like to pursue a question arising from the matter I am dealing with. I was just told that this deceased person did have obtained UK citizenship before he bought the China property.
Now I have two questions:
(1) the fact that the deceased had UK citizenship may change the determination of domicile? He didn’t live in UK for up to 15 years under the new “deemed domicile” rule;
(2) another question is a bit tricky. Since the estate is in China, the deceased did write a will (written in Chinese but was not notarized or witnessed) in UK, no matter whether this will is valid or not, the China court will need to know whether the entire property registered in the sole name of the deceased spouse is all the estate of the deceased. In other words, China court needs to know whether this property acquired during their marriage is the deceased’s separate property with the spouse having no ownership interest in it or is the so called “community property” that is assumed to be owned by both spouses. If the latter, then only the share of the deceased shall be the estate.
I used to think that UK doesn’t have community property regime, but a separate property regime under which assets titled in one spouse is the separate property of that spouse. But my client sought advice from a UK attorney who said otherwise, to the effect that both spouses have equal rights in the property in China.
So I am a bit confused. Please shed some lights on the two questions.
It’s a little difficult to answer without the facts set out in the previous thread being repeated. I have had to amend this.
If the deceased was not domiciled in the UK, none of the courts in the United Kingdom can have domiciliary jurisdiction over the Deceased’s assets, whether movable or immovable.
If you check whether the Grant probate was issue on a non-domiciled basis, should that resolve the issue by paperwork?
Where were the couple married? If in China, that could also resolve the matter in favour of the Chinese matrimonial property régime, as we refer to such things here.
The timelines as to the marriage and the stay in the UK may need to be set out.
However, English law and that of the remainder of the UK has always treated succession to foreign immovables as being subject to the jurisdiction of the courts where the immovable is situated, i.e. in China.
The 50/50 rights question crops up as a matter of ancillary (i.e. Financial relief) in divorces. That is not connected to the property rights of the spouses. It is not evidence of a community régime.
Where did the deceased die?
i: If he died in the UK, he was probably not domiciled in the UK and should not have been declared as such in the UK Grant of Probate transferring the UK property.
ii. If he died in China. If the English Courts or HMRC were to be called in, they would need to consider the community régime in China and whether on marriage i) any afteracquired property became subject to the community, irrespective of whether it was mentioned or not (like France), or ii) when the marriage is ended, by death or otherwise an account is made and net assets attributed to the survivor irrespective of the name in which the assets were held or ii) any other rules of community . That would be a matter for you to determine. If he married in the UK, which seem possible, then to my mind unless the spouse evidences contribution of money or otherwise to the UK or Chinese properties, then the Chinese property remains his and still devolves under Chinese law which may require that it does so under the Chinese régime, to the extent that China permits scission in relation to immovable property. There are no default legal matrimonial property régimes in England or in any part of the UK.
To my mind if the Chinese régime permitted scission, i.e. one matrimonial régime equivalent to separation for the UK property and Chinese for the Chinese immovable that would resolve the succession as the law of the marriage, and of the law addressing the immovable in China.
It matters not whether the individual is domiciled in the UK or in China.
The deemed domicile tax rule is not the legal rule and does not seem to apply here.
Can I suggest that you cut the Gordian Knot (with no analogy to the subsequent “Silk Road” intended) and go bask to the UK Grant of probate. If issued on a non-domiciled basis, then from the tax perspective you may be safe in dealing with the assets as Chinese law dictates providing that there is no proprietary opposition from the UK spouse or their children.
Unlike in Europe, the English approach to matrimonial property régimes is not be generally influenced by a change in the spouse’s residence unless the foreign law governing the régime states so.
The issues that you are raising can only be resolved on the facts and the time lines in question. I suggest that you instruct competent counsel on this if you are unable to find a way through on the advice that you have already taken. T
It is very difficult to offer any clarity on these detailed matters without details, all the more so as you may be giving HMRC and/or the English/UK courts a jurisdiction which they may not actually have.
Thanks, Peter, for your precious time.
Yes, I realized that I need to give more details. The deceased was Chinese and went to UK in 2004, and got married in UK, and in 2012, he was naturalized into a UK citizen, and he died in 2014 in UK. He made a Will in UK in which the China property was all left to their children.
In dealing with his estates in UK, the grant of probate didn’t cover the China property at all.
Back to my two questions:
(1) since she had lived in UK not up to 15 years, under the deemed domicile rules, she was not considered domiciled in UK, unless his naturalization automatically endows domicile on him.
(2) for the second question, the couple marriage ended by death. there is no ancillary issues of divorce. You will have to follow my logic in giving the answer because the inheritance of China property is governed by Chinese laws. But here, Chinese law refers to only rules governing inheritance, not rules governing matrimonial property regime. Instead, according to China private international laws, China court will apply UK matrimonial law to determine whether the China property registered in the sole name of the deceased is his separate property or co-owned by both spouses.
If the surviving spouse has ownership interest in the China property, then that part won’t be considered as part of the estate of the deceased.
So is it clear now?
I surely will get the client to hire a UK attorney to issue expert opinion when the case moves to that point. This is more out of my own curiosity.
Very clear, thank you.
Can I assume that the married couple lived in England in an English home?
The UK does not have any default matrimonial property régimes. There is therefore no “matrimonial property” law to apply through a Chinese renvoi of the type which you describe, just the separation of assets which is a pure issue of property law.
Is there a question of the wife’s domicile as well (the UK citizen)? You refer to “she” at point 1). That would change the scope of your question considerably, but only after the transfer in relation to her realising a capital gain were the surviving spouse to sell.
I am assuming that the UK IHT has been paid on the UK property, and note that you have not responded on the domicile or non-domicile declaration required on the UK Grant of Probate dealing with the UK property and estate.
I hope that this tidies up my attempt at a response.
Peter, yes, both couple lived in English but not under the same roof. So would their separated life mean that the China property registered in the name of the deceased was his own personal property in which his UK wife didn’t have any interests?
What if they lived under the same roof as a normal couple?
I didn’t respond on domiciled or non-domiciled declaration on UK Grant of Probate, because I don’t understand such an issue. Sorry.
I’ll reply by a message , if that’s alright?
No doubt the barrister you instruct will cover this point but you will need to investigate the possibility that the deceased acquired an English domicile of choice. He was physically present in England. If he had the intention to remain there permanently or indefinitely then he would have acquired an English domicile of choice.
Hi Gerry, domicile or not, it is a matter related to inheritance tax only, right? Does it has any bearing on the determination of ownership interests of the couple in the China property?
Domicile determines liability to UK inheritance tax.
I’m a tax specialist not a lawyer. My knowledge of property law is very limited.
Hi Gerry, still thanks, appreciate your valuable input.
It seems a pretty intricate issue when it comes to determine whether the husband has any ownership interests in the China property registered solely in the name of the deceased spouse.
Jason, I’m a little confused by your last posting as you are questioning whether the husband has any ownership interests in the Chinese property whereas in your earlier posting four days ago you said that the husband owned the property in China. It seems to me that there are two aspects involved here, firstly is the property in China to be included in the husband’s estate for inheritance tax purposes, which would be the case if his domicile was that of England and Wales. It is still unclear from what has been said, what His domicile is. The other aspect appears to be whether his wife has any claim for provision out of his Chinese estate even though he has made a will giving that to his minor children. I would’ve thought that the wife may have grounds for making a claim if she was not being sufficiently provided for by him. She would need to be separately advised on her position and if the court or an agreement was reached (authorised by the court since minors are involved) which made provision for her from the Chinese estate, that element would be free of IHT assuming of course it was treated as part of his UK estate for tax purposes. You certainly need to involve A specialist such as Peter Harris who has already commented.
Following on from Patrick’s last posting, it seems to me that the question again comes back to the deceased’s domicile at the date of his death.
The wife can only make a claim against his estate for provision if the deceased was domiciled in England & Wales at the time of his death (s. 1 Inheritance (Provision for Family and Dependents) Act 1975). This is a question of legal fact, not the IHT deeming provisions.
Gerry Brown has already commented upon the possibility of the deceased having established a domicile of choice in E&W/the UK. However, depending upon the circumstances of the deceased having returned to China, such domicile might have been lost. In which case, the deceased will have reverted to his domicile of origin (if this was not China) of have acquired a domicile of choice in China if he intended to live there permanently or indefinitely and had sufficient severed his ties with the UK.
(Whilst I note the deceased is referred to as “Chinese”, this may define his racial/cultural background rather than his legal domicile.)
If the deceased is held to be domiciled outside of E&W at the time of his death, it may be that the wife would need to look to the law in China to identify if she might have any claim upon the property there.
As Patrick observes, the involvement of a specialist is needed to help resolve the issues. Although, having said that, depending upon whom you are advising, it may be that you could just sit back and wait to see what the “other side” intends to do.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
hi Patrick, sorry for the confusion. I would be careful in the future when posting new thread.
Regarding facts of the case, let us come onto the same page: the deceased is the husband, a UK citizen, used to be a Chinese citizen before being naturalized into UK citizenry. His wife was UK citizen, so are their children.
Please do not consider English private international laws, as this is not the issue in China court （China conflict laws refer to foreign substantive law only）. China private international law has provided for the applicable law to be UK law in regard of determination of whether this piece of China property was the deceased husband’ personal property (thus entire property was the estate) or was the community property (thus both spouses have ownership in the property, and accordingly only half or a portion of the property was the estate of the deceased husband).
If UK matrimonial law (if any) or property law that governs marital property ownership gives an answer to my question above, then that is what I want.
So far, I got opposite answers: one saying the UK wife has half interests in the China property, and the other saying the whole property was the estate of the deceased husband.
Is there any book on this topic? Thanks.
Paul, my understanding is that any claim for provision is different in nature from my question. If the wife has a claim for provision to be made out of the estate, then the premise before any court (Chinese or British) is whether the entire property constitute estate of the deceased.
If you only talk about claim for provision, are you inadvertently indicating that the entire China property was the estate of the deceased husband?
My comments followed on from the second point raised by Patrick.
No, I was not seeking to indicate, inadvertently or otherwise, by reference to any potential claim that the Chinese property was in the estate of the deceased husband.
However, in your initial post, you refer to the deceased husband having made a Chinese language will by which he gave the Chinese property to his children, which would seem to indicate that he considered the China property to be within his estate. If the will was professionally drawn, it might be instructive to have sight of the will drafter’s file to help understand why the husband made that will.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
My paralegal helped me to locate the following paragraphs which correspond to my understanding of UK marital property rules, though it is said that UK (not including Scotland) doesn’t have similar set of rules like civil law countries in terms of matrimonial property regime.
" In England, Wales and Northern Ireland there is no legal property regime between the spouses. Therefore, a marriage has no effect on the patrimonial relations between the spouses. Therefore, the rules of common law must be applied. The common law system provides that property acquired by one member of a married couple is owned completely and solely by that person. Of course, if the title or deed to a piece of property is put in the names of both spouses, however, then that property would belong to both spouses. If both spouses’ names are on the title, each owns a one-half interest."
This will solve my question. According to this, the property registered in the deceased’s name is his estate in its entirety.
A very interesting discussion, it is clear from Jason’s analyses that the Chinese conflict of law principles are more didactic - dare I say objective - than the more flexible British concepts. As we move away from Brexit, this type of discussion will become more frequent and the reliance on the insular concept of domicile in most matters; be that adoption, property, matrimonial issues and succession will be tested. I sense that the historical scope and territorial limitations on statutes existing prior to the Law of Property Acts and the Administration of Estates Act will also come into the limelight.