The High Court also has the power to appoint a person who is not in the above hierarchy to administer the estate. This Personal Representative has the authority to deal with the deceased’s estate, such as to manage and distribute the relevant assets to the beneficiaries. Whilst a Grant of Letters of Administration is a Grant given to an administrator who is the next-of-kin (e.g. the deceased’s spouse, child or parent, etc.) where there is no Will, or where no executor has been appointed in the Will. A Grant of Probate is a Grant given to the executor (or executrix, in case of a female) named in the last Will of the deceased person.
Death registration
How to distribute the remaining estate in the will; and7. Basic information at the beginning of the will, such as the date of creation and description of the testator;2. For more information on probate, please visit Probate。 If in doubt, you are strongly advised to seek legal advice. The teenage daughters may apply for maintenance and have a good chance to get more than what they get under intestacy laws. The deceased died intestate recently and her husband emerges out of nowhere asking for his share from the estate (i.e. more than 1/2).
Book traversal links for 1. Payment of Debts and Funeral Expenses
In general, the court makes a grant of letters of administration to the person(s) whom it considers will most effectively administer the estate. A valid receipt releases personal representatives from their duty to distribute estate. Estate Duty is charged on the total value of all properties situated in Hong Kong (including all personal assets and real estate) which “pass” (are left behind) or are deemed to pass in connection with a person’s death.
II. The estate agents’ services (with an overview of the sale and purchase procedures)
Under the will in the instant scenario, the grandmother’s estate was to be distributed among A, B and C equally. For both (1) & (2), A and B will take 1/3 each, and D and E will take C’s 1/3 share evenly (i.e. D and E will each take 1/6 of the estate of the grandmother). If you have doubt about the form or substance of such deed, seek legal advice.
Searching for a Will and gaining access to the deceased’s safe deposit box in a bank
Generally speaking, if such deceased gives a general gift of e.g. Lapse happens when the intended beneficiary under the will dies before the deceased. One exception is that the specific gift changes in form only.
- It is a criminal offence to refuse or, without reasonable excuse, omit to register a death as required by law punishable by a fine of HK$2,000 or up to 6 months’ imprisonment.
- To prevent such issues, the testator can include a provision in the receipt clause that specifies the receipt should only be given by an individual who appears to be the treasurer or another suitable officer of the organisation.
- For example, if you were to declare that all your estate goes to your parents, or a charity, without leaving even one dollar to your wife or minor children, such an intention may not be achieved after your death.
- The surviving spouse can make this request in writing to the personal representative within 12 months after the first taking out of representation.
- In such case, the specific gift under the will have to be used to pay off those expenses and the debts too and the beneficiary will not be able to get that gift.
For deaths before 15 th July 2005 , estate duty remains payable. Before the abolition of estate duty on 11 th February 2006 , “Estate Duty Clearance” (evidencing the required duty has been paid) needs to be obtained before an application can be made for a Grant of Representation. In practice, it would be of less significance as the beneficiaries ranking in priority under intestacy, being the surviving spouse and children of the deceased, would generally be the persons expecting financial provisions from the deceased’s estate. You should consider appointing a person to act as guardian (to have legal custody) of any children who are minors (below the age of 18) at the time of your death. Discretionary powers will therefore be given to the executor to distribute as much of the income and/or capital for the benefit of the child as the executor sees fit before the child can formally receive all the assets.
One of the main functions of a Will is to provide instructions for distributing the estate according to the intention of the testator (person making the Will, i.e. the deceased). Any person who, immediately before the death of the deceased, was being maintained either wholly or substantially by the deceased may apply. In other words, even if the deceased leaves behind substantial assets in Hong Kong, the captioned ordinance remains inapplicable if the above domicile/residence requirement is not satisfied. Generally speaking, only documents relevant to an application for a Grant of Representation, or personal items relating to a person other than the deceased and urgently required by that person, can be removed. For deaths between 15 th July 2005 and 10 th February 2006 , the Applicant still needs to follow the old practice to obtain estate duty clearance. The applicant for a Grant of Probate or Letters of Administration (“the Applicant”) should follow the old practice to obtain estate duty clearance before lodging an application to the High Court for a Grant of Representation.
The testator does not necessarily own a general gift at the date of death. He must own the specific gift at the time of his death in order to pass the gift to the designated beneficiary. Therefore, if a person leaves a Will after the death, he or she is said to have died “testate”.
- A residuary gift is the remaining assets of an estate after all the specific and general legacies have been paid and other necessary provisions have been made.
- An application shall be made within 6 months since the first grant of representation, otherwise, leave of the Court must be obtained.
- Therefore, a testator must specify in the will if he wishes to leave the executor a legacy for taking up the role.
- If the wife insists that she should get more from the estate than what the laws of intestacy stipulates, she may make an application under Inheritance (Provision for Families and Dependents) Ordinance (Cap. 481).
- The duty to account does not arise only at the end of the administration.
- (3) give details of the whereabouts of all properties (including cash) of the estate which the personal representative is duty bound to administer; and
- In such a case, the Judge may make an order for a grant contrary to the terms in the will.
In most cases, there is an assumption that a testator has the necessary mental capacity to make his will and there is no need to provide evidence of it. There is always a question as to which jurisdiction (which country’s law) should govern the administration and succession of estate if some foreign elements are involved. A Grant of Representation acts as evidence of a person’s right to deal with the estate of the deceased. But in general it may be advisable to wait and see if there is any outstanding claim against the estate for a period of 12 months from the deceased’s demise (the so-called “executor’s year”) before full distribution is effected.
It is not a prerequisite to obtain a court order before submitting this application. The application shall be supported by an affidavit setting out the grounds of the application, and if any person served with the subpoena denies that the will is in his possession or control, he may file an affidavit to that effect. 49(2) of Non-Contentious Probate Rules (Cap. 10A), the executor may make an ex parte application to the Registrar under s.7(3) of Probate and Administration Ordinance (Cap. 10) for the issue of a subpoena to bring in a will. If the Court admits the copy will to probate, the order normally includes a direction that the grant is limited until the original will or a more authentic copy will has been proved. In order to have the copy will admitted to probate, forzabet an application must be made to the Registrar under r.53 of the Non-Contentious Probate Rules (Cap. 10A).
It applies only to a deceased who is domiciled in Hong Kong or has been ordinarily resident in Hong Kong at any time in the 3 years immediately preceding his death. Absent will, the estate will be distributed by the laws of intestacy as discussed. That inventory will then be filed in the Schedule of assets and liabilities with the Probate Registry. It is for the executor named in the Will or the intended administrator to take that inventory. However, the surviving renter will be able to remove all contents of the safe deposit box without authorisation from the Home Affairs Department after 12 month from the date of death of the deceased.
One point to note before the abolition of estate duty is that any gift to a registered charity in Hong Kong according to your Will is exempt from estate duty. You may wish to make specific gifts of money, shares, or real estate to certain persons or charities. Most often, you will leave your personal belongings to your spouse. If the beneficiary does not outlive the testator for the specific period, the gift will go to another designated beneficiary if the will so specifies. A survivorship clause is a clause in a will that requires the beneficiary must outlive the testator by a specific period before is eligible to receive the gift. However, if there are any specific terms in that Will which allow the former spouse to take some assets from the deceased’s estate, these terms may be void unless a contrary intention is proved.
Instead, he made a will giving all his assets to his mistress. It is advisable to seek legal advice as soon as possible. It may take months or, in complicated cases, more than a year to obtain grant. You are advised to consult a solicitor for how to take appropriate legal actions to claim repayment. However, since C has died before the grandmother did with two children (D & E) of his/her own, D and E will take equally C’s share of the residuary estate when they reach 18 if not already have or married before 18. The grandmother in the instant scenario had three children, A, B and C, had all survived the grandmother, each child would have taken the residuary estate in equal shares.
In other words, they may be entitled to get a reasonable amount from your estate in order to maintain their living. Your wife and your children could apply to the Court for provisions to be made for them from your estate. For example, if you were to declare that all your estate goes to your parents, or a charity, without leaving even one dollar to your wife or minor children, such an intention may not be achieved after your death. Generally speaking, every person has “free testamentary capacity”. In other words, the estate of the elder deceased will pass to the younger deceased, which will then be further dealt with according to legal regulations. This clause gives a testator control on the ultimate destination of his estate.
If the deceased died testate (i.e. he/she had made a Will appointing an executor), the executor is the only person who is entitled to apply for a Grant of Probate of the Will. Whilst the personal representative may seek to be reimbursed by the estate his/her costs or the opponent’s costs that he/she is ordered to pay, the beneficiaries may oppose on the ground that the personal representative have unreasonably initiated or defended the claim. There is no objection for the intended personal representative to repay the debt out of pocket first, and be reimbursed by the estate subsequently. The surviving spouse can make this request in writing to the personal representative within 12 months after the first taking out of representation.