How to approach a will and estate plan Mainland

For a family with assets straddling Hong Kong and Mainland China, a single will drafted under one jurisdiction's law is rarely enough. The question is not whether to plan – it is whether the plan will actually work when it needs to, across two legal systems that treat succession, forced inheritance and asset transfer in fundamentally different ways.

A will and estate plan covering assets in Mainland China requires a coordinated cross-border approach: the governing instruments for Hong Kong assets and for Mainland-sited assets must each satisfy the law of the jurisdiction where those assets sit, the forced heirship (the mandatory inheritance rights reserved by statute for certain family members) rules of both systems must be mapped against the family's actual asset map, and the sequence of steps – from asset inventory to registration – must be set before documents are finalised. Under the applicable Hong Kong rules on trusts and succession, and under the Mainland's Civil Code (the unified codification of private law in the People's Republic of China, which governs succession for Mainland-sited assets), the obligations are distinct and cannot safely be merged into a single instrument.

This guide sets out the practical sequence: the decision the family faces at each step, the governing instruments that apply, the gate that must be passed before moving on, and the common mistake that defeats otherwise well-drafted plans.

What does cross-border succession actually mean for a family with Mainland assets?

Cross-border succession means that when a principal dies, each jurisdiction applies its own rules to the assets physically or legally sited within it. A Mainland-registered property or a Mainland bank account will pass under Mainland succession law regardless of what a Hong Kong or offshore will says. The same property held through a properly structured offshore vehicle may be treated differently – but that structure must be in place before death, not after.

In our private-wealth practice, we regularly see estates where the principal had a well-drafted Hong Kong will covering movable assets but left Mainland-sited real property exposed to intestacy or to a Mainland probate process that the family was unprepared for. The commercial stakes are real: Mainland real estate values for many Greater Bay Area families now represent the majority of their estate. A document that does not reach those assets is, in practice, a partial plan.

The cross-border interface here is between the common-law succession system of Hong Kong – which permits testamentary freedom, has no forced-heirship regime, and is governed by the Trustee Ordinance (Cap. 29) as reformed in 2013 – and the Mainland civil-law system, which allocates mandatory inheritance rights to a defined class of heirs under the Civil Code. Those two systems must each be satisfied. A plan that satisfies only one does not work.

What does this mean in practice? It means the family needs to know, before any document is drafted, which assets sit where, what legal form they take, and which system's rules govern their transfer on death. That is the asset inventory step, and it is the logical first gate.

Step 1 – Asset inventory and jurisdictional mapping: what sits where, and in what form?

The first step is a complete inventory of assets by situs – the legal location of each asset for succession purposes – and by legal form. This is not a financial exercise alone. A Mainland property registered in the individual's name sits directly in the Mainland succession regime. The same property held through a Hong Kong company, or through an offshore holding entity, raises a different question: the shares may be movable property governed by a different system, though the position depends on the facts and requires careful analysis.

The inventory must address at least four categories: Mainland real property (registered ownership, any co-ownership, any mortgage); Mainland bank and brokerage accounts; shareholdings in Mainland-registered entities (whether wholly-owned or joint-venture); and offshore or Hong Kong assets, including shares, cash, and trust interests. For each category, the team needs to identify the jurisdiction of situs, the title documentation, and whether a beneficial owner differs from the registered holder.

The gate at this step is document completeness. The succession plan cannot be reliably drafted until the team has seen the actual title documents, the corporate records if shares are involved, and – critically – the family register (hukou, the household registration record in the PRC system that identifies legal family relationships for Mainland succession purposes). Missing a co-ownership interest, or discovering after drafting that a property was registered jointly with a parent, requires the entire Mainland instrument to be revisited. That costs time and, more importantly, leaves the estate exposed in the interval.

Step 2 – Forced heirship and family mapping: who has a mandatory claim?

Once the asset map is clear, the next step is to identify every person with a mandatory legal claim on any part of the estate. This step is where many cross-border plans underestimate the Mainland side.

Hong Kong law has no forced-heirship regime. A testator in Hong Kong may, subject to the Inheritance (Provision for Family and Dependants) Ordinance, leave their estate to whomever they choose. The 2013 reforms to the Trustee Ordinance also strengthened protection of Hong Kong-law trusts against foreign forced-heirship claims, making Hong Kong a structurally useful hub for asset protection planning. That does not, however, help with Mainland-sited assets.

The Mainland Civil Code allocates priority inheritance rights to a defined class: spouse, children and parents constitute the first-order heirs. In the absence of a valid will covering the Mainland asset, the estate passes to that class by intestacy in equal shares. Even where a valid Mainland will exists, certain heirs who lack the means to support themselves may have a claim on a portion of the estate that cannot be displaced by testamentary direction. The planner must map the family against this rule before the Mainland will is drafted.

The gate here is consent and information. If there are family members in other jurisdictions – a spouse who is not a PRC national, children resident abroad, elderly parents in another province – the forced-heirship position must be modelled for each. The family may need to make a considered decision about whether to make provision for certain heirs within the Mainland will, or whether a separate financial arrangement is more appropriate. Proceeding without this mapping produces a will that may be challenged or varied at the point it is most needed.

Step 3 – Instrument selection: one will or multiple?

The standard approach for a family with significant assets in both Hong Kong and Mainland China is to use coordinated but legally separate instruments for each jurisdiction. A single will attempting to govern both creates practical difficulties at probate: a Hong Kong probate court will apply its own rules; a Mainland notarial body will require a Mainland-compliant instrument. A will drafted under Hong Kong law and in English may not be accepted in Mainland probate without translation, notarisation and authentication – a process that adds time and creates opportunities for disputes.

The coordinated-instrument approach means: a Hong Kong will (or a declaration of trust under the Trustee Ordinance) covering Hong Kong and offshore assets; and a separate Mainland will, drafted in Mandarin, executed in accordance with Mainland Civil Code requirements, and dealing only with Mainland-sited assets. The two instruments must be drafted so that their scope is mutually exclusive. The most common drafting error is to use catch-all language – "all my assets worldwide" – in the Hong Kong will, which then conflicts with the Mainland instrument and may require a court process to resolve.

For families who wish to use a trust structure for Hong Kong and offshore assets, the position is distinct. A trust settled under Hong Kong law, with an independent trustee and properly transferred assets, removes those assets from the testamentary estate altogether. The 2013 reform to the Trustee Ordinance – effective 1 December 2013 – abolished the rule against perpetuities for Hong Kong trusts and confirmed that a settlor may reserve certain powers without invalidating the trust. This gives Hong Kong trust structures a meaningful role in cross-border succession planning. However, a trust governs only assets that have been formally transferred to it. Mainland real property cannot be directly held by a non-Mainland trust structure in most cases without a corresponding holding vehicle; the asset inventory step determines whether this route is open.

The gate at Step 3 is instrument scope agreement: the family and their counsel must agree in writing which assets fall within each instrument before drafting begins. Scope creep after drafting is the source of most conflicts.

Step 4 – The Mainland will: execution and notarisation requirements

A valid Mainland will under the Civil Code may take several forms, including a self-written (holographic) will, a printed will witnessed by two independent witnesses, or a notarised will. In practice, for a family with significant Mainland real property, a notarised will provides the strongest evidentiary basis for probate. Notarisation is carried out at a state notary office (gong zheng chu) in the Mainland. The testator ordinarily attends in person.

For principals who are not PRC nationals but hold Mainland assets, or for PRC nationals resident outside the Mainland, the notarisation process requires careful advance planning. Attendance at a Mainland notary office may require a specific visit to the PRC. The notary will review identity documents, the title documents for the assets, and the family register. Where the testator is abroad and cannot attend, there are procedures involving the Chinese consulate in the country of residence, but these add time and documentary requirements. This is not a step that can be delegated to a local agent without the testator's direct involvement at the key points.

A micro-scenario illustrates the risk. A Hong Kong–resident principal with Mainland property and a BVI holding company executed a well-drafted Hong Kong will in autumn 2024. The Hong Kong will covered the BVI shares; the Mainland property was left to a separate instrument. The Mainland instrument was not notarised because the principal found the in-person requirement inconvenient. At death, the Mainland property passed under the intestacy rules of the Civil Code, producing an outcome inconsistent with the principal's expressed wishes and requiring a contested family process to resolve.

The gate at Step 4 is completed notarisation and storage. A signed but unnotarised Mainland will may have less evidentiary weight than the principal assumed. Additionally, the family should agree on where the Mainland will is stored and who holds a copy. Storage in a single location creates practical risk; storage across multiple jurisdictions without a record of where the originals are held creates a different problem.

Step 5 – Powers of attorney and incapacity planning: the gap most plans leave open

Succession planning addresses what happens at death. The gap that most cross-border plans leave open is incapacity: what happens if the principal becomes unable to manage their own affairs while alive?

For Mainland-sited assets, a lasting power of attorney (a legal instrument authorising a named person to manage affairs if the principal loses capacity) executed in Hong Kong may not be automatically recognised by Mainland institutions, particularly for dealing with real property. The Mainland has its own system for incapacity-related asset management, and the interaction between a Hong Kong-registered power of attorney and a Mainland bank or land registry is not straightforward. In our cross-border practice, we have seen families encounter material delays when attempting to manage a Mainland property on behalf of an incapacitated principal because the Mainland institutions required their own documentation.

The practical answer is to address this explicitly during the estate-planning process, rather than leaving it to be resolved under pressure. A Mainland notarised power of attorney, prepared at the same time as the Mainland will, covers the incapacity gap for Mainland-sited assets. The scope of that instrument – what powers it grants, to whom, and with what limitations – requires the same care as the will itself.

The gate at this step is formal execution and registration. A power of attorney that has not been executed and notarised in the correct form before incapacity occurs cannot be remedied after the fact.

This is also the point at which the interaction between succession planning and trust structures becomes most visible. A properly settled Hong Kong trust, with an independent trustee, continues to function through the settlor's incapacity because the trust assets are held by the trustee, not the individual. For that reason, families with significant non-Mainland assets often use the trust as the primary incapacity and succession vehicle for the offshore and Hong Kong side, reserving the Mainland instruments for the assets that the trust cannot reach directly.

For further reading on how these principles apply to asset structures held through Hong Kong, see our Private Wealth practice overview.

Step 6 – Ongoing maintenance: what triggers a review of the plan?

A cross-border estate plan is not a static document. The asset map, the family composition, the jurisdictions of residence and – critically – the legislative environment each change over time. A plan that was complete in the year it was drafted may have material gaps within three to five years.

The triggers that most commonly require a plan review in our cross-border practice include: a change of residence by the principal or a major beneficiary (residence affects which jurisdiction's succession and tax rules apply to movable property); acquisition or disposal of Mainland real property; marriage, divorce, birth of a child, or death of a potential heir (each of which may affect the forced-heirship mapping done at Step 2); and changes to the legislative position in either jurisdiction. The Mainland's Civil Code consolidated and updated succession law; further amendments or implementing measures should be monitored.

Two documents that trigger an immediate review in most cases are: any change to the holding structure of a major Mainland asset (for example, a property transferred from direct individual ownership into a company), and any change in the family's residence pattern that creates a new tax or succession nexus in a third jurisdiction. A family that was purely Hong Kong–Mainland in scope at the time of drafting may, after a relocation, also have exposure in the United Kingdom, Singapore, or the UAE – each of which adds a layer to the succession map.

For cross-border families with exposure in the United Kingdom, our analysis at Will and Estate Plan: Assets in the United Kingdom addresses the additional considerations that arise when British-sited assets are added to the picture.

The gate at this step is a scheduled review date, written into the engagement, not left to the principal's initiative. Experience across our desk shows that reviews prompted by a new asset acquisition tend to be more complete than reviews triggered after a change has occurred. The window between a life event and the next formal review is where estates are left partly unplanned.

Common mistakes and the decision checklist

Three mistakes appear in cross-border estate plans covering Mainland assets more than any others.

The first is scope conflict between a global will and a Mainland instrument. A Hong Kong will using the phrase "all my assets wherever situated" and a separate Mainland will covering specific properties creates an apparent conflict. The result is a process – sometimes a contested one – to establish which instrument governs which asset. The fix is precise scoping at Step 3, before drafting.

The second is an unnotarised or improperly witnessed Mainland will. The Mainland Civil Code's formal requirements are not optional. A will that does not meet them may be treated as invalid, triggering intestacy for those assets. The fix is completing Step 4 in its correct form, including the in-person notarisation step, before the overall plan is considered complete.

The third is treating the plan as complete once the documents are signed. The absence of a review cycle is the most common reason that plans drafted at one stage of a family's life fail at another. The fix is a scheduled review date – at minimum every three years, or on any major life event or asset change.

The decision checklist below maps the key questions. It is not a substitute for advice on your specific position.

Have you completed a full asset inventory by situs and legal form, including all Mainland-registered properties, accounts and corporate shareholdings?
Have you identified every person with a mandatory claim under both Hong Kong and Mainland succession law, and modelled the forced-heirship position for Mainland assets?
Are your Hong Kong and Mainland instruments drafted with mutually exclusive scope, so neither catches the other's assets?
Has the Mainland will been notarised at a state notary office, and does the principal have documentary evidence of that notarisation?
Is there a Mainland notarised power of attorney covering incapacity, executed at the same time as the Mainland will?
Has a scheduled review date been set, with clear triggers for an earlier review?
If a trust structure is used for Hong Kong or offshore assets, have those assets been formally transferred to the trust, and is the trust properly separated from Mainland-sited assets that the structure cannot directly reach?

For families whose plans touch additional jurisdictions, including the interplay with Mainland trust-related vehicles and cross-border asset-protection structures, the briefing at Private Trust: Family Assets in Mainland China addresses the structural considerations in more detail.

The sequence above describes the standard approach. Your matter turns on the specific documents, the jurisdictions engaged, and the family map – which is where the route succeeds or fails. For a structured assessment of your succession position across Hong Kong and Mainland China, write to us at info@lockhartyip.com.

Frequently asked questions

How long does a will and estate plan covering assets in Mainland China usually take?

The timeline depends on the complexity of the asset map and the family structure, but a fully coordinated plan – covering both the Hong Kong and Mainland instruments, the forced-heirship mapping, and the incapacity powers – typically takes several months from initial instruction to completed execution. The principal bottleneck is usually the Mainland notarisation step, which requires an in-person attendance that must be scheduled in advance. Where the family's asset structure is straightforward and documents are readily available, the process moves more quickly. Where offshore holding vehicles are involved, or where there are multiple Mainland properties in different provinces, additional time is required. Parties should not treat the plan as closed until notarisation is confirmed in writing.

What is the first step in a will and estate plan covering assets in Mainland China?

The first step is a complete asset inventory by situs and legal form: identifying every asset, the jurisdiction in which it sits for succession purposes, the name in which title is held, and the documentary evidence of that title. Without this map, it is not possible to determine which governing instruments apply, what the forced-heirship exposure is, or whether any existing holding structure affects the succession analysis. The inventory must include the family register (hukou) documentation to confirm the legal family relationships that the Mainland succession rules will apply. Missing an asset at this stage means the plan is incomplete before it starts.

What does the route look like for a will and estate plan covering assets in Mainland China?

The route proceeds in sequence: asset inventory and jurisdictional mapping; forced-heirship and family mapping; instrument selection (coordinated but separate documents for each jurisdiction); execution and notarisation of the Mainland will; execution of incapacity instruments covering Mainland assets; and a scheduled review cycle. Each step has a gate: the next step should not begin until the gate at the current step is passed. The most common failure point is treating Step 4 – notarisation – as optional or deferrable. An unnotarised Mainland will carries material evidentiary risk, and that risk materialises at the worst possible time.

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

How to approach a will and estate plan covering assets in Mainland China