Imagine that a California decedent's estate is administered, assets are distributed and the file is closed. Months later, an attorney calls. A previously unknown nephew of the decedent has come forward from overseas with proof of heirship. Suddenly, what seemed like a completed administration becomes a re-opened case, with the executor, administrator, trustee or conservator (collectively referred to as the "personal representative") facing potential liability for distributing assets or making decisions without notifying the correct parties. This scenario underscores why a diligent search for heirs, especially those living abroad, is not optional but imperative.
The California Probate Code defines an "heir" as any person, including the surviving spouse, who is entitled to take property of the decedent by intestate succession under the Code. The shares of each heir can be determined by the decedent's Will, trust instrument or Will substitute or by statute. These rules can also inform conservatorship proceedings where notice is required to be given to the proposed conservatee's relatives, including heirs who could succeed to the estate if the person were deceased. This ensures that those with a potential future interest in the estate have an opportunity to participate, object or provide information relevant to the court's decision.
The personal representative begins with information available in the decedent's or proposed conservatee's personal papers, financial accounts, immigration records and family contacts. Notices are published as required under California law, but these measures may not suffice to reach relatives overseas, particularly as letter-writing has been replaced by e-mail.
Locating heirs in other countries
Locating heirs involves different procedures depending on the country. To provide a guide for California personal representatives, leading counsel in China, Germany, India, Italy, Japan, Mexico, Spain and the United Kingdom were asked to comment on the following topics:
1. Procedures or resources available to establish family relationships;
2. The use of genealogists, notaries or consular officials to verify heirship;
3. Forms of proof recognized by local authorities;
4. Other issues such as privacy concerns for obtaining heirship information; and
5. Resources for obtaining the heir's address for sending notice.
The importance of understanding local records systems, court requirements, and cultural practices when working across borders is highlighted in the discussions that follow.
CHINA (Peter Ni, senior partner at Zhong Lun Law Firm): China has a household registration system that serves as the fundamental proof of family relationships. Household registration operates on a family unit basis, with household registers (kept by competent authorities) and household booklets (kept by family units) typically documenting an individual's family members--including spouses, parents and children. Household registration constitutes the most direct and authoritative document for verifying family relationships in China. This document is not infallible, however, as its information may be incomplete or outdated. Therefore, in addition to the household registration, other documents such as birth certificates, marriage certificates and adoption certificates may also be required. Family relationships between any two individuals can generally be corroborated by one or more of the aforesaid documents. However, for certain special circumstances, such as children born out of wedlock, additional evidence like paternity test reports may be needed.
For Chinese courts, since the aforementioned proof of kinship is issued by competent domestic authorities, they may directly recognize such documents provided that the originals are submitted for verification. China does not recognize affidavits made by individuals to declare kinship, even if such affidavits are notarized (Chinese notary offices cannot notarize such affidavits without supporting documentation).
If proof of kinship is needed in California, the party (heir) typically needs to apply to a competent notary office for notarization of their relationship with the decedent. The applicant must provide the notary office with materials such as the household booklets and birth and marriage certificates. The notary office conducts its review and independent investigation before issuing a notarized certificate confirming the kinship relationship. The certificate does not address whether the applicant actually qualifies as an heir as that is a separate legal matter. After the notary office issues this certificate, it is further submitted to the Foreign Affairs Office for affixing the Hague Apostille seal. The certificate is then ready for submission to the California authorities.
The reissuance of the aforementioned documents proving kinship or the application for notarization of such kinship relationships may be handled by a lawyer upon the client's authorization, provided the client signs a legally valid power of attorney. Privacy concerns are not triggered provided the attorney does not exceed the authorized scope of use for the client's personal information.
If the heir's identity has not been confirmed and the heir needs to be located, the attorney needs to: (1) possess one or more basic pieces of information about the decedent (including name, date of birth, address and Chinese Citizen ID number (considered the most critical identifier for a Chinese citizen); and (2) be authorized to conduct or assist with the investigation. Since personal information inquiries involve privacy concerns, the attorney must obtain relevant authorization. This authorization may stem from the attorney being entrusted by the decedent prior to their passing to assist with estate matters, or from the attorney being commissioned by a known heir to assist with the investigation or handling of estate affairs. Local governments impose varying regulations on attorneys' access to household registration. Some restrict access to attorneys handling litigation or arbitration cases, while others adopt more lenient policies, allowing attorneys to access household registration when necessary for their professional practice.
Provided the aforementioned prerequisites are met, attorneys may personally visit the police station to retrieve the decedent's household registration and personnel files or request the notary office to issue an inquiry letter to the police station. Typically, notary offices may have broader access and channels for inquiries, as they operate between competent authorities, reducing the likelihood of unexpected obstruction. The decedent's household registration or personnel files often contain basic details of their primary family members (although not necessarily comprehensive). If necessary, attorneys or notary offices may conduct further investigations. Additionally, in cases of dispute or potential contention (such as when confirming an inheritance distribution plan), a party may file a lawsuit with the court and request judicial assistance in conducting investigations.
The registered address of an heir typically can be obtained through investigations of household registration or personnel files. However, the registered address may not necessarily match the residence of the individual, meaning that sending notice to the registered address does not guarantee delivery to the party concerned. Nevertheless, querying an individual's household registration and registered address generally represents the maximum scope of actions an attorney can undertake.
GERMANY (Dr. Andreas Richter, LLM, partner, and Dr. Michael Feldner, LLM, associate, at POELLATH): The German registry offices (Standesamt) maintain registers of marriages, civil partnerships, births and deaths:
· The marriage register contains information on the date and place of marriage, the names, birth data, and sex of the spouses, as well as the names adopted after marriage. The same applies to the civil partnership register (registered civil partnership was a previous alternative to marriage for same-sex partners).
· The birth register records the name, place and time of birth of the child, its sex, and the names and sex of the parents.
· The death register records the name, birth data, sex, last residence, and marital status of the deceased, along with details of any spouse or civil partners, and the precise circumstances of death.
Historical registers may also be relevant. Prior to 2007, family status was documented in the family register (Familienbuch), introduced in 1937 and incorporated into the 1957 Civil Status Act, later replaced by the registers described above.
Civil status certificates and access to the civil status registers may be requested by the individuals concerned, their spouses, civil partners, ancestors and descendants. Other persons must demonstrate a legitimate interest.
In principle, heirs do not need to prove their status as heir to acquire the inheritance as it passes ipso iure, meaning that the heir automatically enters into the legal position of the decedent at the moment of death unless the inheritance is renounced. However, depending on the context and the type of asset involved, proof may be necessary to actually receive the assets. A German certificate of inheritance or a European Certificate of Succession is usually required to transfer ownership of German real estate in the land register or to access German bank accounts. Both are public documents that carry evidentiary weight but do not constitute heirship. The competent authority for both is the probate court.
To obtain the German certificate of inheritance, applicants must submit several documents. The authenticity of foreign documents must generally be verified through legalization or, under the Hague Apostille Convention, by apostille. Documents that are not in German have to be translated in German regularly.
Under German law, the principal of succession ipso iure applies so the heir's knowledge of succession is irrelevant. It is therefore of high importance for (potential) heirs to be informed of their status as heirs. Currently, there is proposed legislation to set up a central and publicly accessible register where heirs can find unknown bank accounts belonging to the deceased.
Before applying to the German probate court to appoint a curator of the estate, a U.S. personal representative can also hire a German attorney or a professional heir investigation agency to identify the heirs.
If the heirs are unknown, the competent German probate court initiates an estate curatorship (Nachlasspflegschaft). One of the main tasks of the curator of the estate (Nachlasspfleger) is to identify heirs. The curator of the estate may engage a professional heir investigation agency, which may also act as genealogists. Generally, the curator must first carry out all reasonable investigations themselves and may only commission an investigator if these prove unsuccessful. Exceptions apply in cases requiring special expertise, such as foreign research, emigration, or displacement.
Once heirs have been identified, registry inquiries may be made to determine their addresses. Anyone may, in principle, obtain information from the relevant local authority about a person's name, academic degree and address. Data provided for commercial purposes may only be used for the stated purpose and must thereafter be deleted. The intended purpose must be declared when making the request.
INDIA (Bijal Ajinkya, partner, and Vatsal Singh, senior associate at Khaitan & Co.): Typically, for receiving an official document that spells out the names of heirs, an application is made under Section 370 of the Indian Succession Act 1925 (ISA) to the district judge, in whose jurisdiction the deceased was residing at the time of death, or if the deceased had no fixed place of residence, within whose jurisdiction any part of the property of the deceased may be found. Such succession certificate is granted in respect of debts and securities. If the deceased were residing outside India and had no fixed place of residence in India, then an application is made in such jurisdiction in which the deceased had a bank account/demat account/provident fund account open.
In the event that an application cannot be made for a succession certificate under Section 370 of the ISA (due to lack of documents/jurisdiction or otherwise), then typically government issued identity records are relied on. Identity records include the passport (spells out the names of parents and spouse); the permanent account number card (PAN Card) (sets forth the father's name); or 10th/12th grade marksheet certified by the concerned education board (marksheet) (sets forth names of both parents); or the birth certificate (sets forth names of both parents). The family composition can be understood to a great extent from these documents. These documents are requisitioned from the concerned legal heirs and/or their family members with their consent.
Courts in India recognize succession certificates, birth certificates or other government issued documents, and judicial determinations. Affidavits are recognized to a lesser degree unless they are being filed in a testamentary proceeding. If the heir cannot be contacted or if details of the heir's whereabouts are unknown, an advertisement can be published in local newspapers, asking such heir to contact the attorney of the deceased. This comes with the risk of being contacted by imposters. Accordingly, families typically prefer to hire third party investigators to assist with the heir search.
ITALY (Nicola Saccardo, Partner, Charles Russell Speechlys): Unlike common law jurisdictions such as California, Italy does not have a formal "probate" procedure. Upon the death of an individual, heirs are automatically vested with ownership, possession, and administration of the estate's assets. Executors (esecutori testamentari) can only be appointed by the testator in the Will; if there is no such appointment, only the heirs themselves are responsible for managing the estate. There is no court-supervised process equivalent to probate unless very specific instances occur.
In Italy, family relationships are established and proven primarily through official documents, all maintained by the local civil registry office (Anagrafe dello Stato Civile). Italian courts recognize these official certificates as proof of family relationships:
· Marriage Certificate (Atto di Matrimonio): This document certifies the marriage between two individuals and is essential for establishing spousal relationships.
· Birth Certificate (Atto di Nascita): This certificate records the birth of an individual and identifies the parents, thus proving parent-child relationships
· Family Status Certificate (Stato di Famiglia): This is an official document that lists all members of a household as registered at a specific address. It can be issued in both current and historical forms, showing the composition of the family at present or at a given time in the past. The "stato di famiglia" is particularly useful for demonstrating the existence and structure of family units.
All these documents are considered valid evidence of the family ties between the deceased and the legitimate heirs.
It is not customary for Italian attorneys to engage genealogists, notaries or consular officials to verify heirship. The official civil status documents (described above) are considered sufficient proof of family relationships. The act itself (i.e., the official certificate) is accepted as evidence, so there is generally no need for further verification by third parties.
For certain activities, such as filing the inheritance tax return, or interacting with banks to obtain letters indicating the balance on accounts upon death, it is necessary to execute an "atto notorio", i.e., a sworn statement made before witnesses, attesting to the main facts of the succession (for example, the personal details of the deceased, date of death, whether the succession is testate or intestate, the identity of the heirs, and whether there are any disputes).
Civil status certificates are considered public documents in Italy, and anyone can request them. However, recent changes have introduced some limitations:
· Previously, any individual could request these certificates without restriction.
· Currently, only attorneys and certain public officials (such as notaries) can request these certificates online.
· Private individuals who are not attorneys or public officials must request certificates in person at the relevant municipal office (sportello comunale).
· There are some certificates (such as extracts of the death deed) that should be required by heirs directly.
This system is designed to balance transparency with privacy, ensuring that sensitive information is not freely accessible online to the general public.
The address of an heir can be obtained through the Certificate of Residence (Certificato di Residenza) which is available from the public registries. This certificate can be requested by attorneys and public officials online, or by private individuals in person at the municipal office. It provides the official registered address of the individual, which can be used for service of notice or other legal communications.
JAPAN (Kenji Horiuchi, partner at Nagashima Ohno & Tsunematsu): Family registry records called "koseki" are commonly used to establish family relationships. These public records are generally created on a household basis and include the names of each household member's parents and children, as well as the location of the registered domicile ("honseki"), which is unique to Japan and a different concept than the current address.
Koseki records are updated, deleted or created to reflect significant life events such as the birth of a child, marriage, divorce, or death, based on applications submitted by household members. Consequently, a single person may have multiple koseki records. To confirm family relationships, it is necessary to track down all the koseki created throughout the life of the relevant household members, which can take a couple of months depending on the number of heirs. Koseki records created in or after 1886 are publicly available, unless they have been discarded (the retention period for public records was extended in 2010).
Koseki records can be obtained by either (a) a household member or their spouse, parents or children; or (b) lawyers or other statutory professionals. Since koseki records contain private information, requests by lawyers or other statutory professionals require a legitimate reason such as confirming heirships under Japanese family law. However, a request to confirm heirships for individuals who are heirs under California law but not heirs under Japanese family law, may require additional documentation, such as a statement from a California authority or attorney explaining the necessity of such a request under California law. When initiating a request, lawyers or other statutory professionals must identify the municipality in which the relevant koseki is registered and provide the registered domicile or address of at least one household member. A koseki cannot be obtained using only the name and date of birth of the relevant household member.
It is common practice in Japan to use koseki information to verify family relationships, rather than using other methods, such as genealogists or notaries. Although Japanese courts can accept any evidence of a certain level of credibility and objectivity, any discrepancies or deviations from the koseki information must be reasonably explained.
Koseki records do not include the current address of household members. Therefore, to confirm the current addresses of heirs, one must obtain either (i) residential records, called "juminhyo," or (ii) a supplementary family register, called "koseki-no-fuhyo." The process for obtaining these documents is similar to the one described above for koseki.
MEXICO (Melanie Iñiguez, associate; Verónica Esquivel, principal associate; Alfonso López, partner; and Ricardo Claudio León, partnerat Garrigues law firm): Family relationships in Mexico are primarily established through official documentation issued by the local Civil Registry. Mexico does not maintain a centralized "family register" system but the combination of birth, marriage and death certificates serves a similar function. These records constitute the principal legal evidence of familial ties. Such records include birth certificates to prove direct descent; marriage certificates to determine spousal rights; and death certificates, necessary to initiate probate proceedings. In situations where the official records are missing, incomplete or contain discrepancies, individuals may pursue judicial proceedings to establish family relationships. In such cases, courts may consider testimonial evidence, private documents and DNA testing to prove kinship. Judicial procedures allow testimonial evidence including declarations from relatives or acquaintances. Additional forms of proof such as affidavits, sworn statements, genealogical charts or expert testimony, may also be admitted to reinforce the evidentiary record. However, in most cases, these do not carry the same legal weight as public records. Such evidence can help establish legal standing in both intestate and testate probate cases.
The use of genealogists in Mexico is relatively uncommon, except in complex cases involving unclear, unknown or disputed family trees, where a private genealogical investigation may be helpful. The legal system primarily relies on civil registry records to establish kinship and verify heirship, making genealogical services an exception rather than a standard practice.
Attorneys generally rely on the following professionals:
· Notaries Public. In Mexico, notaries are legally authorized to handle probate matters, particularly in non-contentious cases. When there is no dispute, the entire probate process, including the issuance of the Declaration of Heirs (Declaratoria de Herederos) and the distribution of assets, can be conducted before a notary without court involvement. The notary may conduct searches in the Local State Notarial Archive and the Public Registry of Property to identify any other Wills executed by the decedent. However, these searches are focused on locating testamentary documents, no on identifying heirs.
· Consular Officials. While consulates do not have the authority to verify or establish heirship, they play an important role in facilitating cross-border matters. This includes assisting foreign heirs in obtaining civil registry documents and ensuring that foreign documentation complies with Mexican legal requirements. Their involvement is particularly relevant when heirs reside outside Mexico or when foreign documents must be presented in Mexican legal proceedings. In any case, disregarding whether the proceeding is judicial or extrajudicial, to avoid failing to call all potential heirs to a proceeding, particularly when there is no Will, publications will be carried out in relevant newspapers signaling the date for the Declaration of Heirs Meeting.
In obtaining heirship information, in most cases, when obtaining public information or documents related to an heir, such as birth, marriage or death certificates, no ID is required as long as the solicitant provides the Unique Population Registry Code (CURP) or full personal information such as name, date of birth, name of father or mother and place of birth. However, some states do require an official photo identification such as a voter ID card (INE), passport or professional license.
When exact details are incomplete or unknown, it can be more challenging to obtain the information; however, most Civil Registry offices may assist with manual searches of physical archives, especially for older records that are not digitized, requiring the individual to provide estimated information such as an appropriate birth year, parent's full name or possible states of registration.
In contrast, when the information sought originates from a judicial proceeding, the requestor must present valid government-issued identification (e.g., passport, INE, or professional license). Additionally, it is necessary to demonstrate a legal interest in the case. This may include presenting a power of attorney when acting on behalf of another person or a court order authorizing access. Attorneys typically must provide their professional license along with a signed authorization from the individual involved.
Access to judicial records is generally restricted to parties directly involved in the case, their legal representatives, or individuals with court authorization. While certain judicial information may be available to the public under transparency laws, access is limited when privacy, legal confidentiality, or security concerns are present.
In judicial probate proceedings, the court may issue official search requests (oficios de búsqueda) to public and private entities, such as tax authorities, electoral registries, and social security institutions, requesting any available records or address information related to the individual in question. These searches are generally limited to entities within the state where the proceeding is taking place. However, in some cases, they may reveal information about individuals residing in other regions or even abroad.
SPAIN (Florentino Carreno, partner at Cuatrecasas): In Spain, family relationships are primarily established and evidenced through the following means:
· Civil Registries: The Civil Registry is the main source of information regarding births, marriages, deaths and filiation. Certificates issued by the Civil Registry (birth, marriage and death certificates) are official documents that prove family relationships of Spanish nationals or foreigners whose vital events have been registered in Spain.
· Family Book (Libro de Familia): This is an official document that records civil status events and family relationships (marriage, birth of children, deaths, etc.)
· National Identity Document (DNI): The Spanish National Identity Documents contains relevant information such as the names of the parents and place of birth.
· Baptismal Certificate: If the person was baptized, it is possible to request a baptismal certificate from the church, which also provides information about the parents and godparents, who are often family members.
In rare or complex cases, particularly when information is missing or the inheritance involves distant relatives, practitioners may resort to:
· Genealogists and Private Investigators: Especially in complex international succession cases or when it is difficult to identify all heirs, professional genealogists or private investigators may be engaged to reconstruct family trees and locate heirs.
· Notaries: Notaries play a fundamental role in the administration of estates in Spain. They are public officers and are responsible for authorizing notarial deeds of declaration of intestate heirs (when there is no Will) and for verifying the documentation provided.
· Consular Officials: In cases where heirs reside abroad, consulates may assist in obtaining documents, legalizations, and in verifying the identity and status of heirs.
Spanish courts recognize various forms of evidence to establish heirship, including:
· Certificates of Heirs: Notarial deeds of declaration of intestate heirs, issued by notaries, which identify the legal heirs in the absence of a Will.
· Judicial Resolutions: In the event of a dispute or when the succession is processed judicially, the judge may issue a resolution determining who the heirs are.
· Sworn Statements: In some cases, sworn statements or declarations before a notary may be admitted, although they generally require supporting documentation to establish legal heirship.
· Civil Registry Certificates: Birth, marriage, and death certificates, as previously mentioned, to evidence family relationships.
The collection and processing of personal data in the context of succession is subject to data protection regulations (the General Data Protection Regulation and the Spanish Organic Law on Data Protection). Access to Civil Registry Information is limited to persons with a legitimate interest and requires justification of such interest (article 3 of OLDP).
To notify an heir, the following methods may be used:
· Consulting the Municipal Register (Padrón Municipal): This is the register of residents, but access is restricted and generally requires justification or the authorization of the individual concerned.
· Engaging Private Investigators or Genealogists: In cases where the heir is difficult to locate.
In all cases, it is essential to comply with data protection regulations and to justify the legitimate interest in accessing such information.
UNITED KINGDOM (Patrick Harney, partner, and Sarah Albury, of counsel at Mishcon de Reya LLP): The primary resource for establishing family relationships is the General Register Office (GRO). The GRO oversees civil registration in England and Wales. It maintains the national archive of all births, marriages, civil partnerships and deaths dating back to 1837. Scotland and Northern Ireland maintain similar but different registries. The electoral register may also contain relevant information.
English solicitors employ professional genealogists in intestacy cases. Locating the address of an heir for notice purposes may involve using the electoral register or other public records. Tracing agents and credit databases such as Experian may be able to supply more current information for missing heirs. Where genealogists are employed, they would generally undertake searches in these sources as part of their work as well as undertaking searches at the GRO.
Foreign personal representatives may have to comply with UK
General Data Protection Regulation (GDPR) in obtaining
data related to potential heirs. The rules around GDPR are complex and
specialist advice will likely be necessary. If the foreign personal
representative is subject to UK GDPR, they must, at the request of an heir,
provide certain information to such heir, e.g., how long the heir's data will
be stored and held by the foreign personal representative. The foreign personal
representative will also have to be careful about how the data is processed,
ensuring that the foreign personal representative process the data to comply
with legal obligations. Lay administrators are thought not to be subject the GDPR requirements.
Notaries in England primarily authenticate documents for use abroad by
notarizing affidavits or statements. Their role would not generally extend to
undertaking inquiries to verify the heirs individually and would more likely be
limited to providing a certificate of foreign law confirming how the English
law of intestacy is applicable to the estate.
If it becomes clear that there is an heir but the personal representatives cannot locate such heir, there are steps that can be taken to mitigate the liability of the personal representative should the estate be distributed without having located the missing heir. One such step is a S27 notice.
S27 of the Trustee Act 1925 allows administrators of a decedent's estate to place a notice in the London Gazette, which is a publication which contains various legal warnings/notices. The notice would also be placed in a national newspaper and possibly in addition in a newspaper circulating in the locality where the decedent was last resident. The notice should say that the administrators intend to distribute the estate and give a period no shorter than two months for any potential beneficiary to make a claim. Provided the administrators do not distribute before the notice period expires and no beneficiary makes a claim within that period, the administrators will not be personally liable to any beneficiary who comes forward in the future. The missing beneficiary can still make a claim against the other beneficiaries to whom the estate was distributed.
An administrator could also apply to court for a Benjamin Order. Such an order permits the administrators of a decedent's estate permission to distribute the estate in a particular manner, for example, allowing them to assume that there are no other heirs, or that one of the heirs has died. The effect of such an order is that the administrators cannot be pursued by the missing beneficiary for a breach of trust and cannot be held personally liable. The missing heir, however, does not lose his entitlement to his share of the estate. He can still pursue the other beneficiaries to whom the estate was distributed.
If an heir cannot be found in circumstances where it is thought the heir may have died, the Presumption of Death Act 2013 can be of assistance. Under this act, administrators can apply to court for a declaration that a person is presumed to have died at a specific time and then proceed to distribute the estate on the basis that the individual died on the date specified by the declaration.
It may also be possible to purchase missing beneficiary insurance. This is a type of insurance policy that will pay out the missing heir's share of the estate should the heir subsequently appear and make a claim to it.
The Probate Registry will require various documents such as the original or a duplicate of the foreign legal document entrusting the estate administration to those appointed as administrators by the competent authority in the jurisdiction where the decedent died domiciled. This may be a certificate of heirship or other judicial determination such as a grant of letters of administration. In all cases, an inheritance tax account must be filed with the HMRC before an application for a grant can be made.
The onus is upon the lawyer filing the application for a grant of letters of administration with the Probate Registry to undertake all necessary inquiries to be satisfied that the correct individuals have been identified as the persons entitled to take the grant. As the entitlement to take the grant mirrors the beneficial entitlement under the rules of intestacy, it follows that these inquiries will also establish who are the heirs to the decedent's estate. Where there is uncertainty as to who are the heirs and therefore who are the persons entitled to apply or the grant of letters of administration, genealogists will likely be employed to assist.
Conclusion
Locating heirs abroad is not a "one size fits all" exercise. Each country's system must be respected and navigated carefully through foreign counsel. Early engagement with foreign counsel is essential as gathering and authenticating the required documentation can take months and may delay estate or trust distribution.
By understanding and complying with the procedural differences between countries, California personal representatives and California counsel can avoid costly missteps, protect themselves from liability and ensure that assets are ultimately delivered to the rightful heirs, wherever in the world they may be.