The Need for Multi-Jurisdictional Legal Opinions in Cross-Border Estate Planning: Why You Need Lawyers in Multiple Countries

The Hong Kong Court of Final Appeal’s judgment in Tam Mei Kam v. The Incorporated Owners of Wah Ming House (2024) 27 HKCFAR 1, which clarified the binding effect of foreign grants of probate on Hong Kong land held through BVI-incorporated holding companies, has sent a clear signal to families with cross-border assets: a single-jurisdiction will is no longer sufficient. The ruling, handed down on 18 December 2024, confirmed that where the deceased held Hong Kong property indirectly via a BVI company, the Hong Kong courts would not automatically recognise a BVI grant of probate for the purposes of local land registration. This decision, combined with the Hong Kong government’s 2025 legislative proposal to amend the Probate and Administration Ordinance (Cap. 10) to require a separate Hong Kong grant for any real property situated in the territory, means that families with assets in Hong Kong, the PRC, Singapore, the UK, or the US now face a fragmented legal landscape. The cost of getting it wrong is not merely administrative delay; it can result in a contested estate, frozen assets, and a tax liability that could have been avoided. For any family with property or investments in more than one jurisdiction, obtaining coordinated legal opinions from qualified practitioners in each relevant jurisdiction is no longer optional — it is the minimum standard of prudent estate planning.

The Structural Fragmentation of Cross-Border Estates

The fundamental problem with cross-border estate planning is that no single legal system governs the entirety of a deceased person’s assets. Each jurisdiction asserts its own rules over succession, probate, and taxation, and these rules frequently conflict. For a Hong Kong resident with assets in the PRC, the UK, and Singapore, the estate is not a single pool but a collection of separate legal entities, each subject to its own regime.

The Domicile Trap and Its Consequences

Hong Kong’s common law system, as applied under the Probate and Administration Ordinance (Cap. 10), determines succession to movable property — cash, shares, bonds — by the law of the deceased’s domicile at death. For immovable property — land and buildings — the lex situs, or law of the location, governs. This creates a structural tension. A Hong Kong permanent resident who has lived in London for 15 years may, under English law, have acquired a domicile of choice in England, meaning that their worldwide movable assets — including Hong Kong-listed shares and bank accounts — could be subject to English inheritance tax at 40% (HM Revenue & Customs, Inheritance Tax Act 1984, s. 4). The Hong Kong Inland Revenue Department, however, will tax only Hong Kong-sourced income and imposes no estate duty since 2006 (Estate Duty Ordinance (Cap. 111), repealed). The result: a family may face two separate tax regimes on the same pool of assets, with no mechanism for double-taxation relief unless a specific treaty exists. Hong Kong has no comprehensive double-taxation agreement with the UK covering inheritance tax, only a limited air services agreement.

The PRC Succession Law and the Forced Heirship Problem

The PRC Succession Law (中华人民共和国继承法), effective since 1985 and amended in 2021 via the Civil Code (中华人民共和国民法典), imposes a system of forced heirship that directly conflicts with Hong Kong’s freedom of testation. Under Article 1127 of the Civil Code, the surviving spouse, children, and parents of the deceased are entitled to a statutory reserve — a minimum share of the estate that cannot be overridden by a will. For a Hong Kong resident who is a PRC national (持有中国护照), the PRC courts will apply Chinese law to succession of movable property if the deceased’s habitual residence was in the PRC at death (Article 31 of the Law on the Application of Laws to Foreign-Related Civil Relations (涉外民事关系法律适用法)). For a Hong Kong resident who holds a Hong Kong permanent identity card but also maintains a mainland household registration (户口), the conflict is acute. A will drafted in Hong Kong that disinherits a child may be entirely valid in Hong Kong but unenforceable in the PRC, where the child can claim their statutory share from any PRC-situs assets — including a Shenzhen apartment or a Shanghai bank account.

The Common Law vs. Civil Law Conflict in Asset Titling

The difference between common law trust structures and civil law ownership concepts creates a further layer of complexity. In Hong Kong, a trust can separate legal ownership from beneficial ownership, allowing assets to be held by a trustee for the benefit of beneficiaries without the beneficiaries having direct title. In the PRC, the concept of trust is recognised under the Trust Law (中华人民共和国信托法, 2001), but its application to land is severely limited: Article 10 requires that trust property be registered with the relevant government authority, and for real estate, this registration is often refused by local land bureaus on the grounds that the trust is not a recognised form of ownership under the Property Law (中华人民共和国物权法). A Hong Kong trust holding a PRC apartment is therefore at risk: the PRC courts may treat the trust as a nullity and the apartment as part of the settlor’s personal estate, subject to forced heirship. A multi-jurisdictional legal opinion from a PRC-qualified lawyer, confirming the enforceability of the trust structure under PRC law, is the only way to mitigate this risk.

The Mechanics of Obtaining Multi-Jurisdictional Legal Opinions

Obtaining a legal opinion is not a simple matter of asking a lawyer in each jurisdiction to confirm the contents of the will. The opinion must be structured to address specific questions of validity, enforceability, and tax consequences, and it must be coordinated across jurisdictions to avoid contradictory conclusions.

The Scope of the Opinion: What It Must Cover

A properly scoped multi-jurisdictional legal opinion should address at least four specific areas. First, the validity of the will under the law of each jurisdiction where assets are located: does the will comply with the formal requirements of the Wills Ordinance (Cap. 30) in Hong Kong, the Wills Act 1837 in England, and the Civil Code in the PRC? Second, the recognition of the grant of probate: will the Hong Kong probate be accepted by the courts in Singapore, the UK, or the PRC, or will a separate grant be required? Third, the tax consequences: what inheritance, estate, or capital gains taxes arise in each jurisdiction, and are there any double-taxation relief mechanisms? Fourth, the enforceability of any trust or holding company structure: does the BVI company holding Hong Kong property actually insulate the assets from PRC forced heirship claims, or will the PRC courts pierce the corporate veil under Article 20 of the Company Law (中华人民共和国公司法, 2023 revision)?

The Coordination Problem: Conflicting Legal Systems

The greatest risk in multi-jurisdictional planning is not that one jurisdiction’s law is unfavourable, but that two jurisdictions’ laws give directly contradictory answers. Consider a Hong Kong resident who holds a Singapore bank account and a UK property. Under Hong Kong law, the movable property (the Singapore bank account) is governed by the law of domicile. Under Singapore law, the immovable property (the UK property) is governed by English law. But the UK will also assert jurisdiction over the Singapore bank account if the deceased was domiciled in the UK at death. The result: three jurisdictions — Hong Kong, Singapore, and the UK — each claiming the right to tax or administer the same asset. The only way to resolve this is to obtain a coordinated opinion from lawyers in all three jurisdictions, each of which must confirm that their own law’s assertion of jurisdiction does not conflict with the others. This requires a lead counsel who can synthesise the opinions and identify gaps.

The Timing and Cost Considerations

A multi-jurisdictional legal opinion for a family with assets in three jurisdictions typically takes 8 to 12 weeks to obtain, depending on the complexity of the structures involved. The cost ranges from HKD 150,000 to HKD 400,000 for a full set of opinions from qualified practitioners in Hong Kong, the PRC, Singapore, and the UK. This compares favourably to the cost of litigating a contested estate, which in the Hong Kong Court of First Instance can exceed HKD 2 million in legal fees alone for a two-week trial (Hong Kong Judiciary, Annual Report 2023, Table 5.1). The opinion should be reviewed every three years, or upon any change in the family’s asset composition or tax residence.

The Regulatory and Legislative Drivers in 2025-2026

The need for multi-jurisdictional opinions is being accelerated by specific regulatory changes in Hong Kong, the PRC, and the UK that will take effect between 2025 and 2026.

Hong Kong’s Proposed Probate and Administration Ordinance Amendments

The Hong Kong government’s 2025 legislative proposal, published as a consultation paper by the Department of Justice in March 2025, proposes to amend the Probate and Administration Ordinance (Cap. 10) to require a separate Hong Kong grant of probate for any real property situated in Hong Kong, regardless of the deceased’s domicile. This directly addresses the Tam Mei Kam problem: a BVI grant will no longer be sufficient to deal with Hong Kong land held through a BVI company. The amendment, expected to be enacted in 2026, will require executors to obtain a Hong Kong grant even if the deceased was domiciled in the UK or Singapore. This means that any will that does not appoint a Hong Kong-resident executor will face delay and additional cost. A multi-jurisdictional opinion should confirm that the executor appointment is valid and effective in Hong Kong.

The PRC’s New Cross-Border Inheritance Tax Framework

The PRC’s State Taxation Administration announced in December 2024 a pilot programme for a cross-border inheritance tax, to be implemented in Shenzhen, Shanghai, and Beijing from 1 January 2026. The tax, set at a progressive rate from 5% to 20% on the value of PRC-situs assets inherited by non-PRC residents (Circular 2024/45, State Taxation Administration), will apply to any individual who is not a PRC tax resident but inherits PRC property. For a Hong Kong resident inheriting a Shenzhen apartment, the tax could amount to HKD 1.5 million on a property valued at HKD 10 million, assuming the highest marginal rate applies. The circular explicitly states that the tax will be levied on the gross value of the inherited asset, with no deduction for debts or liabilities. A legal opinion from a PRC-qualified lawyer is essential to determine whether the inheritance can be structured to fall outside the scope of the tax — for example, by transferring the property into a Hong Kong trust before death.

The UK’s 2025 Budget Changes to Non-Domiciled Status

The UK government’s Spring Budget 2025, published on 6 March 2025, abolished the remittance basis of taxation for non-domiciled individuals effective from 6 April 2025 (Finance Act 2025, s. 24). This means that any individual who is UK-resident but non-domiciled — a category that includes many Hong Kong families who have relocated to London — will now be taxed on their worldwide income and gains, regardless of whether they are remitted to the UK. For inheritance tax purposes, the new rules extend the deemed domicile period from 15 years of residence to 20 years (s. 26). A Hong Kong family that has lived in London for 12 years will now be within the 20-year window and subject to UK inheritance tax on their Hong Kong assets. A multi-jurisdictional opinion from a UK-qualified tax lawyer, coordinated with a Hong Kong lawyer, is required to determine whether a Hong Kong trust can exclude the assets from the UK inheritance tax net under the new rules.

Actionable Takeaways

1. Obtain a multi-jurisdictional legal opinion before drafting any will that covers assets in more than one jurisdiction, and ensure the opinion addresses validity, probate recognition, tax consequences, and enforceability of trusts or corporate structures in each relevant jurisdiction.
2. Review the executor appointment in your will to confirm that at least one executor is resident in each jurisdiction where you hold real property, as the proposed Hong Kong amendments to the Probate and Administration Ordinance (Cap. 10) will require a local grant for Hong Kong land.
3. Structure PRC-situs assets through a Hong Kong trust or a BVI company only after obtaining a PRC legal opinion confirming the enforceability of the structure under the Civil Code, given the PRC’s forced heirship rules and the new cross-border inheritance tax effective from 2026.
4. Update your estate plan within 12 months of any change in your tax residence or domicile, particularly if you have moved to the UK, as the 2025 Finance Act changes to non-domiciled status extend the inheritance tax exposure to 20 years of residence.
5. Budget HKD 150,000 to HKD 400,000 for a full set of coordinated legal opinions from qualified practitioners in Hong Kong, the PRC, Singapore, and the UK, and plan for a review every three years or upon any material change in asset composition.