Update: a will and estate plan covering Mainland

For families with assets on both sides of the boundary, succession planning has always required two legal systems to cooperate. What practitioners see with increasing frequency is how often they do not. A will drafted under Hong Kong law may sit unrecognised in a Mainland probate office. A Mainland will may be structurally incompatible with the distribution intended for offshore assets. The gap between intention and enforceability is where estates stall – sometimes for years.

A will and estate plan covering assets in Mainland China must satisfy two separate legal regimes: Hong Kong succession law for Hong Kong-sited assets and Mainland Chinese succession law for Mainland-sited assets. Neither jurisdiction automatically gives effect to a document drafted exclusively under the other's rules. Planning across the corridor requires a coordinated, jurisdiction-by-jurisdiction structure prepared in advance.

This briefing sets out the principal triggers, the governing instruments and the immediate steps that matter.

What the cross-border position requires

Mainland China applies its own succession law to Mainland-sited assets. Hong Kong applies common-law succession principles to Hong Kong-sited assets. The two systems share no automatic recognition mechanism for testamentary documents.

A Hong Kong will covering Mainland real property, bank deposits or equity interests in a Mainland enterprise requires separate probate or notarisation steps within the Mainland before it can be acted upon by local registries or institutions. That process is neither fast nor guaranteed. Where the document itself is not in the prescribed form, or is not accompanied by the required notarised translations and authentication certificates, Mainland institutions will typically decline to proceed.

The reverse problem is equally common. A Mainland-law will covering a Mainland estate may leave Hong Kong-sited assets – shares in a holding company, a Hong Kong bank account, a Hong Kong property – outside any tested distribution mechanism. The family then faces a second, separate probate in Hong Kong, potentially contested and certainly delayed.

The practical answer is a coordinated pair of wills: one effective under Mainland law for Mainland assets, one effective under Hong Kong law for Hong Kong assets. Each document must be scoped precisely so that the two do not revoke or contradict each other. The structuring step – deciding which assets sit where, and under which legal system – must come before the drafting.

Who this affects and what to do now

The trigger is straightforward. Any individual who holds or expects to hold assets in both the Mainland and Hong Kong – or who is a Mainland national with a Hong Kong presence, or a Hong Kong resident with Mainland property or business interests – is operating without adequate succession coverage if their current plan does not address both systems explicitly.

Three situations call for immediate review. First, a single will drafted in one jurisdiction that purports to cover assets in both. Second, an existing structure that has changed since the will was made: a new Mainland property, a reorganised holding chain, a shift in domicile or habitual residence. Third, an estate plan that has never been tested against Mainland probate requirements at all.

Hong Kong law has no forced heirship regime (a mandatory entitlement of close relatives to a fixed share of the estate, common in civil-law systems). Mainland succession law does impose statutory shares in defined circumstances. Where a family's asset map spans both systems, the interaction between these two positions must be addressed directly in the plan – not assumed away.

The Trustee Ordinance (Cap. 29), substantially reformed with effect from 1 December 2013, provides Hong Kong-law trusts with statutory protection against foreign forced-heirship claims and abolishes the rule against perpetuities for Hong Kong trusts. For families with significant Mainland exposure, a Hong Kong discretionary trust can isolate Hong Kong-sited assets from the Mainland forced-heirship position – but only if structured correctly and funded with appropriate assets before the trigger event.

In our private-wealth practice, we see the coordination problem most acutely when a principal becomes incapacitated or dies before the dual-will structure is in place. The cost of remediation – Mainland notarisation, court applications, contested distributions – consistently exceeds the cost of advance planning by a substantial margin. The time to act is before the event, not after it.

For a structured assessment of your succession position across the Hong Kong–Mainland corridor, write to us at info@lockhartyip.com. Further context on our private wealth practice, on private trust structures for family assets, and on asset protection for principals with United Kingdom exposure is available on the site.

Frequently asked questions

What documents are needed for a will and estate plan covering assets in Mainland China?

A coordinated estate plan covering Mainland assets typically requires a Mainland-law will in a form recognised by the Mainland registry or notary authority, supported by notarised translations and authentication where the document originates outside the Mainland. A separate Hong Kong-law will covers Hong Kong-sited assets. A supporting asset map and, where a trust is used, the relevant trust instrument and schedule of assets round out the documentation. Parties should verify current Mainland authentication requirements before execution.

Which jurisdiction's law applies to a will and estate plan covering assets in Mainland China?

Mainland Chinese succession law governs the distribution of Mainland-sited assets. Hong Kong succession law governs Hong Kong-sited assets. The two regimes apply concurrently and do not automatically give effect to each other's testamentary documents. Where a trust is interposed, the governing law of the trust (often Hong Kong law) adds a further layer. The correct approach is to identify the situs of each material asset class and draft a document effective under the law of that situs.

What are the main risks in a will and estate plan covering assets in Mainland China?

The primary risk is a single-jurisdiction will that cannot be acted upon by Mainland institutions without additional steps that the estate is unprepared to take. A secondary risk is mutual revocation, where a later will is drafted in one jurisdiction without scoping it so that it does not revoke the earlier will in the other. Forced-heirship exposure on Mainland assets and the absence of tested succession documents for the Hong Kong leg of the estate are compounding risks seen regularly in our cross-border practice.

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This publication is general information and does not constitute legal advice. For advice on your situation, contact info@lockhartyip.com.

Update: a will and estate plan covering assets in Mainland China

What the cross-border position requires

Who this affects and what to do now

Frequently asked questions

Speak with Lockhart & Yip

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