Shenzhen Small Property Inheritance Faces Contestation Over Illegitimate Child's Heritage? Tang Yunhong Lawyer Fully Involved in Handling, Assists Legitimate Child in Successfully Inheriting All

One, Case Review

By the end of 2022, a father in his 70s surprisingly had a ten-year-old illegitimate child, which directly caused a huge stir within the family, with all the children unable to believe this fact. Moreover, the appearance of the illegitimate child was also very sensitive, as at this time, the Liang family was discussing the distribution of a small property house in Bao'an District, Shenzhen, which was under the father's name. The appearance of the illegitimate child undoubtedly cast a shadow over the family. As the eldest son, Mr. Liang had initially negotiated with the family members, and normally, the house should have belonged to him and his younger brother and sister. However, the appearance of the illegitimate child meant that the distribution process and shares of the house would be redistributed again. Mr. Liang also knew that illegitimate children have equal inheritance rights with legitimate children, meaning that in the future, if inheritance occurs, the shares of the house would include a share for the illegitimate child, facing the risk of losing the house. Mr. Liang felt unable to accept this, as he had been supporting his parents all along. Now, facing the sudden appearance of his father's illegitimate child, Mr. Liang was at a loss. Moreover, the case involved a small property house, which could not be registered as immovable property and could not be legally traded. Mr. Liang entrusted the case to the Dao Hua Marriage and Family Law Firm to handle the dispute.

Secondly, with the involvement of Dao Hua lawyer, the key issues of the dispute are fully sorted out as follows:

1Question on the inheritance rights of children born in marriage and children born out of wedlock?

According to Article 1127 of our Civil Code, illegitimate children enjoy the same rights as legitimate children, and no organization or individual may harm or discriminate against them.

Mr. Tang pointed out that the law explicitly stipulates that children born out of wedlock have the same rights as children born in wedlock, which also means that after the death of Mr. Liang's father, the illegitimate child has the same right to inherit the estate of Mr. Liang's father. Therefore, from a general inheritance perspective, it is difficult to fundamentally circumvent the inheritance rights of the illegitimate child and ultimately achieve Mr. Liang's claim. At the same time, according to Article 1123 of the Civil Code, after the inheritance begins, it shall be handled in accordance with the statutory inheritance; if there is a will, it shall be handled in accordance with the will inheritance or legacy; if there is a legacy and support agreement, it shall be handled in accordance with the agreement. The provisions of this law also clearly stipulate that inheritance must be based on distinguishing between statutory inheritance and will inheritance, which also provides another solution for solving Mr. Liang's troubles.

2、The nature of the small property rights issue, can normal inheritance and distribution procedures be implemented?

After the rural-urbanization transformation in 1992 and 2004, all the collective rural land in Shenzhen has been converted to state-owned land. Therefore, from the perspective of land ownership, Shenzhen no longer has the "small property rights houses" commonly referred to. However, due to historical legacy and the slow progress of old area renovation, a large amount of land in Shenzhen is still held by villagers and village collectives, and the term "small property rights houses" is also widely used. It includes illegal buildings without legal construction permits and without property registration, as well as legal construction permits for farmers' houses, fund-raised houses, and affordable houses, etc.

In this case, the property owned by Liang's father is a private house of historical illegal construction that has been upgraded through the declaration of illegal construction left over from history. Regarding the characteristics of the house, the People's Court usually rejects the claim for confirmation of the sale of the house due to the reason that the house has not been finally confirmed by the administrative authority. Therefore, in this case,To avoid inheritance by illegitimate children, legal measures need to be taken to sever the connection between the illegitimate child and the property. The characteristics of the involved house make it difficult for a series of ordinary economic contracts, including sales and gifts, to take effect, and it is impossible to avoid the possibility of inheritance by the illegitimate child through property transfer.

Three, through comprehensive analysis and judgment, Da Hua Marriage and Family Law Firm seeks breakthrough points in cases.

1. From the perspective of marriage and family contracts, draft a marital agreement to clarify property ownership and legally block the inheritance path of illegitimate children.

It can be clearly stated from the aforementioned analysis that both illegitimate children and legitimate children have equal inheritance rights to the property of Liang's father. However, due to the characteristics of the house involved in the case, it is difficult to circumvent the inheritance issue of the illegitimate child through ordinary contracts such as sales and gifts. Therefore, Tang lawyer, with his own understanding of the small property rights policy and rich experience in resolving small property rights disputes, believes that although the sale and gift of small property rights are prohibited, it does not restrict marital agreements. The house involved in the case was jointly built by Liang Laotou and his wife Feng Laotai after marriage, and it belongs to the joint property of the married couple. Since there is no ownership registration and it cannot be transferred, it is proposed to use the marital family contract as a stepping stone to change the small property rights that belong to the joint property of the couple through a marital agreement, thereby severing the connection between the illegitimate child and the property, and effectively preventing the possibility of the illegitimate child seizing the property by claiming to be Liang Laotou's son.

And this methodBy entering into a marital agreement, Tang Lawyer skillfully achieved the effect of transferring the ownership of the small property rights house involved in the case, and the clarity of the agreement content also successfully blocked the path for the illegitimate child to inherit the house. Moreover, the issuance of the marital agreement did not disrupt the current rental management matters of the house involved for Mr. Liang's family, nor did it destroy the stability and harmony of the family.Dao Hua lawyer takes a different approach.By resolving the issue of property division through a marital contract, this has solved a difficult problem that has troubled countless lawyers. Thanks to the rich professional knowledge of Dao Hua lawyer and thorough case studies, a successful discussion of the solution of marital agreement has been achieved, laying a foundation for the subsequent drafting of the will and the smooth division of the property.

2. Ms. Feng made a will, distributing the inheritance share of the house involved in the case, perfectly fulfilling Mr. Liang's claim.

By entering into a marital agreement, successfully separating the private child of Mr. Liang from the inheritance of the small property rights house involved in the case, but for Mr. Liang, the issue of distribution of the house involved in the case has not been finally resolved. Therefore, Tang Lawyer took advantage of the momentum and, under the circumstances that the family's attention to the house involved in the case was high and there was no dispute in the distribution, through Ms. Feng's will, the small property rights house allocated by the marital agreement was distributed through a will. Under the premise of putting aside other property disputes, a separate will was made for the house involved in the case. On one hand, it successfully achieved Mr. Liang's demands, and on the other hand, it also preserved the autonomy of the parties. For the remaining property, it was handled internally by the family. Tang Lawyer's concept also reflects the consistent philosophy of the Daohua Family Law Firm, that is, mediation as the main strategy and litigation as the auxiliary strategy. In the field of marriage and family law, it cannot be emphasized that litigation is the only solution. It is necessary to find multiple breakthroughs based on the characteristics of marriage and family law. Therefore, in this case, after the property involved in the case changed from the joint property of the couple to Ms. Feng's personal property, Daohua Lawyers only distributed the will for the house. For the rest of the property, it was negotiated and confirmed internally by the family. While achieving the client's demands, it also fully guaranteed the autonomy of the parties.

Four, during the process of signing the agreement, Mr. Liang worried about being left without support in old age and having no one to support him. The lawyer Dao Hua communicated with the parties involved and again resolved the issue of elderly support by entering into an agency lease agreement.

After drafting the marital agreement, the usually cooperative Liang Lao'er suddenly changed his behavior and refused to sign the marital agreement. Lawyer Dao Hua patiently communicated with Liang Lao'er to understand his concerns about not signing the marital agreement. It turned out that this house has always been in a rented state, and the monthly rent has been the main source of Liang Lao'er's livelihood. However, if Liang Lao'er signs the marital agreement with his wife, he will no longer have a share of this house, which will become the personal property of his wife, Feng Lao Tai. In this way, his source of livelihood will no longer be guaranteed, and the over-seventy Liang Lao'er worries that he will face the situation of being unprovided for in the future.

Although Liang Laotou and Feng Laotai are married, there is no legal contract governing their relationship. Liang Laotou dared not take this risk. After understanding Liang Laotou's concerns, the Dao Hua lawyer quickly discussed solutions, and at the same time, informed Feng Laotai and the client of Liang Laotou's worries. Through the tireless efforts of the Dao Hua lawyer, repeated communication with the client's family, continuous coordination of interests, and easing the relationship between the client and Liang Laotou, constructive proposals were made to promote a win-win situation for all parties. Ultimately, the client expressed understanding and agreed to pay rent to Liang Laotou as alimony. With the help of the Dao Hua lawyer, both parties reached an agreement on the rent share, agreeing that the client would act as the lessee and the rent collected must be divided according to the authorization letter for house rental given to Liang Laotou during his lifetime. This way, both the risk of a dispute over the property of the illegitimate child and the worry of Liang Laotou being left without support in old age were resolved.The lawyer of Dao Hua successfully resolved Mr. Liang's concerns by actively communicating with the parties involved, drafting a power of attorney for house rental, perfectly satisfying both parties' demands, ensuring their interests, and avoiding legal risks.

Five, insights from law enforcement

Shenzhen, due to its special historical reasons, has a large number of private rural houses. In response to this, the Shenzhen Housing and Urban-Rural Construction Bureau and the Shenzhen Planning and Natural Resources Bureau jointly issued the "Notice on Strengthening the Investigation and Handling of Transactions of Residential Historical Illegal Buildings," which contains several points related to residential historical illegal buildings. The core content includes four points: community shareholding cooperative companies shall not affix their official seal or issue relevant proofs for the transaction documents of residential historical illegal buildings; notary institutions and law firms shall not provide notarization or witnessing services for illegal transaction activities.

Attorney Tang Yunhong believes that the legal relationship between the two parties in this case is not complex, but the handling of the controversial property is very complex. The situation of Shenzhen's small property rights houses is complex, with various situations such as "green books," "two certificates and one document," and "historical legacy receipts." Green book houses, based on their non-market commercial housing nature, although they belong to a type of small property rights houses, are consistent with commercial houses with real estate certificates in inheritance, and the ownership of the house can be inherited through will/legacy inheritance or legal inheritance.And for the "historical legacy receipts" and other small property houses that have not been registered for property rights, as they do not have a legal ownership certificate, the general practice is to directly inherit the ownership of the house, but the usufruct can be inherited.

Lawyer Tang Yunhong pointed out that the small property houses in this case were transferred to the name of Grandma Feng through a marital agreement to prevent the natural child from inheriting the heritage. At the same time, as a marriage and family case,How important it is to avoid disputes over property inheritance from illegitimate children through contracts, it is equally important to mediate the conflicts between the parties' families. Balancing both monetary and interpersonal considerations is the key to a perfect resolution of this case. For the legal team, drafting contracts for small property rights requires lawyers to have a strong professional level, and communication between parents and children requires lawyers to have sufficient wisdom to resolve disputes.

(Tang Lawyer)

Six, Index of Relevant Laws and Regulations

Article 1071 of the Civil Code of the People's Republic of China states, "Illegitimate children shall enjoy the same rights as legitimate children, and no organization or individual may harm or discriminate against them."

Article 1127 of the Civil Code of the People's Republic of China states, "The term 'children' in this chapter includes legitimate children, illegitimate children, adopted children, and stepchildren with a foster relationship."

Article 216 of the Civil Code of the People's Republic of China states, "The real estate registration book is the basis for the ownership and content of real rights. The real estate registration book is managed by the registration authority."

Article 12 of the Land Management Law of the People's Republic of China stipulates: "The registration of land ownership and land use rights shall be implemented in accordance with the laws and administrative regulations on real estate registration. The land ownership and land use rights registered in accordance with the law shall be protected by law, and no unit or individual may infringe upon them."

5. Article 2 of the "Notice on Strengthening the Investigation and Handling of Transactions of Illegal Historical Buildings in Residential Areas" stipulates: Notaries and law firms shall not provide notarization or witness services for the transaction of illegal historical buildings in residential areas. The judicial administrative department shall strengthen the supervision over the notarization or witness services of notaries and law firms, and resolutely investigate and handle the acts of providing notarization and witness services in violation of laws and regulations.

Article 1 of the Decision of the Standing Committee of the Shenzhen Municipal People's Congress on Resolutely Investigating and Handling Illegal Buildings stipulates: Illegal buildings refer to buildings and structures constructed without the approval of the planning and natural resources department, without obtaining the construction planning permit or temporary construction permit, and constructed arbitrarily.

Article 4 of the "Measures for the Acquisition of Full Ownership and Listing of Economically Affordable Housing in Shenzhen" stipulates: The right holder of economically affordable housing shall meet the following conditions simultaneously when applying for the acquisition of full ownership or listing for trading: (1) The applicant is the right holder of the "Real Estate Certificate" or "Real Property Certificate" (non-market commercial housing) registered for economically affordable housing, and has obtained the written consent of other right holders; (2) The sales and purchase contract has been signed for 5 years; (3) For the purchase of this set of economically affordable housing, mortgage loans have been taken out and mortgages have been set, which must be agreed upon in writing by the mortgagee; (4) There are no laws, regulations, or contractual provisions that prohibit the acceptance of applications for the acquisition of full ownership of housing or listing for trading; (5) Other conditions stipulated by laws, regulations, and normative documents.

Section 7: Team Introduction

Dao Hua Marriage and Family Law Firm, ten years focused on · major property marriage and family legal services, expert in marriage inheritance and family disputes (mediation/trial), is [Shenzhen nativeOne of the influential brands in marriage inheritance and wealth management legal services.

The team has handled over 1000 cases related to marriage inheritance, and has extensive mediation and litigation experience in the resolution of major complex marriage and family matters, inheritance disputes, will drafting, and family property distribution. Applying local wisdom, the team is skilled in handling difficult divorce property division cases involving Shenzhen's small property rights houses, village committee shares, will drafting and notarization, and inheritance disputes, winning unanimous praise from clients.

Adhering to the philosophy of "securing property safety, preventing legal risks, and empowering wealth appreciation," we gather experts from industries such as law, banking, insurance, and finance and taxation. With a wealth of successful cases, we provide a comprehensive package of solutions for high-net-worth individuals (including those from Hong Kong, Macau, and foreign nationals) in marriage, family affairs, and wealth inheritance, to achieve the beautiful vision of risk prevention and control, debt isolation, and family wealth inheritance.

Asset types include: real estate (residential property, small property rights, land use rights, etc.), various property rights (equity, debt, relocation compensation, copyright, invention patents, etc.).

The team has completed the compilation of "A Collection of Successful Cases of Dao Hua Marriage and Inheritance" and "Legal Practice of Family Wealth Transmission," achieving remarkable achievements in both legal practice and theoretical research.