[Direct answer]Before dividing the inheritance, the following six types of property should be identified one by one: first, real estate and its ownership registration, joint ownership, and policy restrictions; second, bank deposits, wealth management products, and securities accounts; third, housing provident funds, pensions, and enterprise annuities; fourth, personal insurance funds, which belong to the inheritance if no beneficiary is specified; fifth, equity, vehicles, and other property rights; sixth, creditor's rights and debts. According to Article 112 of the Civil Code of the People's Republic of China (effective January 1, 2021), inheritance refers to the legal property left by a natural person at the time of death; Article 153 also requires that the marital joint property should first be divided into half for the spouse, and the rest will be considered as inheritance. Although pensions and funeral expenses are not considered as inheritance, they are usually handled together in practice. For a detailed list of assets, please refer to the relevant guidelines.Legal services for inheritanceor entrustBeijing Henglu Law FirmHelp.

I. Legal basis and interpretation of provisions

1. Article 112 of the Civil Code of the People's Republic of China (effective January 1, 2021)

An inheritance is the legal property left by a natural person upon their death, and any property that cannot be inherited according to the law or its nature shall not be inherited. Based on this, two boundaries are defined: first, "personal" property, which is not included if it is registered under someone else's name or belongs to the state or collective; second, "legal" property, whose sources are unclear or whose rights are non-transferable by nature are not subject to division. When identifying the inheritance, the ownership certificates should be checked item by item around the time of death, such as real estate ownership certificates, deposit certificates, deposit records, insurance policies, etc., to avoid mistakenly including property that has been donated or sold during the lifetime of the deceased in the inheritance.

2. Article 1153 of the Civil Code of the People's Republic of China (effective from January 1, 2021)

The property jointly owned by a couple, unless otherwise agreed, shall be divided into two parts when the inheritance is divided: one half shall be allocated to the spouse, and the remaining part shall be the inheritance of the decedent. This step is a prerequisite for the division: the property acquired during the marriage, such as deposits, real estate, and provident funds, must first be separated into the couple's property. Otherwise, the spouse's inherent share will be mistakenly allocated as the inheritance. In practice, the corresponding approach is to first list the jointly owned property, and then annotate the spouse's share and the inheritance share under each item.

3. Practical judicial interpretation guidelines

The common lists of assets identified by the court include: ownership of real estate and mortgages, disputes over agency holding; bank deposit balances and withdrawal flows after death; balances of personal accounts for housing provident funds and pensions; enterprise annuities; personal insurance benefits determined based on the beneficiary's designation; equity, vehicles, and virtual property; creditor's rights (such as loans) and debts (such as unpaid loans). Pensions and funeral expenses are not considered part of the estate, but the court usually divides them in accordance with the principles of inheritance. If the parties are restricted in their ability to investigate assets on their own, they can apply for an investigation order in litigation to inquire about deposits, securities, and housing provident funds. If the conditions are met, the application will generally be granted.

II. Practical Experience of Henglue Law Firm

When handling a large number of cases of statutory inheritance and family property division, Henglue Lawyers observed that the unclear scope of the estate is the first trigger of disputes. There are four common forms: First, one of the heirs controls the bank account and passbook, while the others only know there are deposits but don't know which bank they are in; Second, the real estate is registered under the name of the decedent but involves policies such as housing reform housing, military-owned housing, and central government-owned housing, which restrict its disposition; Third, "invisible assets" such as provident funds, enterprise annuities, and insurance funds are omitted altogether; Fourth, confusing pensions, funeral expenses, and the estate leads to additional disputes.

In such cases, the general tendency of judges is to first determine the couple's joint property and allocate half of it, then list the identifiable inheritance items for division; for applications for investigation orders to inquire about deposits, securities, and provident funds, they are generally granted if the conditions are met; for heirs who conceal or transfer the inheritance, the practice tends to allocate a smaller share to them as appropriate, and the return of the withdrawn funds is also dealt with in the judgment. Therefore, the transaction records of the deceased's deposits often become the focus of litigation in court.

There are three pitfalls that parties are most likely to fall into: focusing only on real estate while ignoring creditor's rights, debts, and financial assets; withdrawing and dividing deposits without leaving any evidence, which is easily regarded as transferring inheritance in litigation; and mistakenly believing that "it's all going to be divided equally anyway" and giving up on providing evidence of their contributions to the family (such as fulfilling their main duty of supporting their parents and living together for a long time). It's more important to prepare a complete inventory of the estate before dividing it than to rush to distribute it. The order and methods of sorting out the estate can be referred to for reference.Inheritance of property and the practice of dividing and allocating family assetsColumn.

III. Frequently Asked Questions

Q1: Who will check the inventory of the estate, and what should I do if I can't find it?

Heirs can collect documents such as real estate property certificates, deposit books, and insurance policies on their own. If they cannot handle these matters themselves, they can apply to the court for an investigation order after filing a lawsuit. With the order in hand, lawyers can inquire about the beneficiary's bank deposits, wealth management products, securities, housing provident funds, and vehicle information. If necessary, they can also apply to the court for an ex officio investigation. Banks only allow inquiries from the beneficiary or judicial authorities. Heirs usually cannot access others' accounts with just a death certificate, so applying for an investigation order is the mainstream approach.

Q2: Are provident funds and pensions considered part of the estate?

When the heir dies, the balance in the housing provident fund account can be inherited in accordance with the withdrawal regulations of the housing provident fund management center; the unclaimed portion in the basic pension insurance personal account can also be inherited according to law, but the pooled portion is not included. The enterprise annuity shall be handled in accordance with the contract provisions and is generally included in the distributable scope. When handling the matter, it is necessary to provide a death certificate, a proof of kinship, and an inheritance notarization certificate or a valid judgment.

Q3: Is personal insurance compensation considered part of the estate?

There are two scenarios: if a beneficiary has been designated, the insurance payout belongs to the beneficiary and is not part of the estate; according to Article 42 of the Insurance Law of the People's Republic of China (amended in 2009), if no beneficiary has been designated, the beneficiary dies before the insured or legally loses the right to renounce the benefit and there are no other beneficiaries, the insurance payout shall be treated as the insured's estate. If there are insurance policies in the family, check the beneficiary clauses before division.

Q4: How are the pensions and funeral expenses divided?

The two are consolation and funeral assistance for family members, not inheritance, and are not used to pay off the deceased's debts. However, due to their similar nature, in practice, courts usually refer to the principles of statutory inheritance to distribute them among close relatives, and give appropriate care to family members who live with the deceased and fulfill their main care obligations. Family members can first negotiate the distribution ratio, and if no agreement can be reached, they can request to handle it together in the inheritance litigation.

Q5: What should I do if I find that there are still omitted assets after the division of the inheritance?

First, the parties can negotiate to make a supplementary division of the inheritance. If the negotiation fails, the parties may file a lawsuit for inheritance disputes regarding the newly discovered inheritance, which is not completely restricted by the previous division agreement or judgment. However, attention should be paid to the three-year statute of limitations (calculated from the time when the party knows or should have known that his rights have been infringed, in accordance with Article 188 of the Civil Code). If the party discovers clues of the other party's concealment of property before his death, he may claim a smaller share and demand its return at the same time.

IV. Suggestions for Protecting Rights and Interests

  • Before the division, make an inheritance list in five steps: "real estate - deposit and wealth management - provident fund insurance - equity and vehicles - creditor's rights and debts", and check the ownership certificates and the time of death item by item.
  • The party who has access to the account information must not withdraw the transferred funds in advance. They should keep the transaction records and report them truthfully, otherwise they may be deemed to have hidden the inheritance and receive a smaller share.
  • For deposits, securities, and provident funds that cannot be traced, it is necessary to file a lawsuit and apply for an investigation order as soon as possible to avoid the loss of evidence over time.
  • For policy-based properties such as housing reform flats, military-owned flats, and central government-owned flats, it is necessary to first verify the disposition restrictions before discussing the division plan.
  • For cases involving a large number of types of property or significant disputes among the parties, it is recommended to refer to the relevant legal provisions for guidance.Legal services for inheritancePlease consult a lawyer for assistance in asset investigation and scheme design. You can also start by browsing relevant information first.Beijing Henglue Law FirmUnderstand the approach to handling similar cases.

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence materials to avoid missing the statutory time limits. →Legal services for inheritance·Beijing Henglu Law Firm