The creditors should go after the estate’s personal representatives (i.e. the executor or the administrator of the deceased’s estate) . If, however, the deceased leaves behind assets in the Mainland, the intended personal representative may need to seek the Mainland legal advice as to those assets. The personal representative’s duty is to distribute the shares of the company to the beneficiaries (if the will so specifically gifts) or to sell the shares and distribute the sale proceeds to the beneficiaries according to will or the laws of intestacy. The personal representative would be personally liable for the said contractual breach or tortious wrong to that third party and, depending on the circumstances, may or may not be entitled to reimbursement by the estate. A personal representative may assume liability towards third party if he/she commits breach of contract in the name of the estate or commit act of negligence in the course of 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
If the personal representative fails to administer the estate properly, what can the beneficiary do?
An ex parte application must be filed to rebut the presumption. Where the original will is lost, mislaid, or not available, and when an applicant is applying to admit a copy, a rebuttable presumption of revocation arises. If the will is lost, the grant made is limited until the original or a more authentic copy is proved. Where the will is lost and there are no available copies of the will, an application for an order admitting proof of other evidence of its contents can be made to the Registrar under r.53 of Non-contentious Probate Rules (Cap. 10A). In writing signed by him and attested by a solicitor or by any person before whom an affidavit may be sworn. Renounce orally on the hearing of any petition or probate action by counsel on his behalf; or
VI. Administration of Estate
An application should be made for an order to revoke the Letters of Administration under s.33 of Probate and Administration Ordinance (Cap. 10). However, a caveat can be renewed repeatedly every six months, potentially impacting the estate for many years. If all required documents are in order, the application should be submitted as soon as possible. The grant made is limited until the original or a more authentic copy is proved.
In such a case, the Judge may make an order for a grant contrary to the terms in the will. The executor will then be required to accept or renounce his executorship. S.25 of the Probate and Administration Ordinance (Cap. 10) governs the number of grantees to be allowed. (ii) any residuary legatee or devisee holding in trust for any other person;
That is why it is prudent for the personal representative to advertise and wait for at least 2 months as set out in this Part. Exceptions include conveyancing of landed property, which can only be made with the concurrence of all personal representatives. The grant of probate is a proof of the will only and not itself the source of duty/power. If, however, the personal representative delay unreasonably for a prolonged period, it may constitute a ground for removal of that representative from office by the Court. The situation may be different if the will specifically asks the personal representative to run the deceased’s business for a period, or if all the beneficiaries so agree. In general, a personal representative has no powers to hold on to the shares of the deceased and run the company indefinitely.
Can probate be applied for if the original Will is lost and there is only a copy of the Will?
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).
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- It ranges from one to four, except where life or minority interests are involved, in which case a minimum of two individuals are required unless the grantee is a trust corporation.
- Usually no requisition is raised about the proof of the sound mind of the testator if the will was executed before solicitors, clerks or doctors.
- Since grants have not been made in respect of the estates of my father and mother, I must apply for them.
- If all required documents are in order, the application should be submitted as soon as possible.
- For deaths before 15 th July 2005 , estate duty remains payable.
- Therefore, it is worth knowing more about the services provided by estate agents.
- Another exception is a spouse’s right of first refusal over the matrimonial property.
If a Will is found, the Holder (if he/she is the named executor) can take the Will away after making a copy of the same and placing the copy in the safe deposit box. For more information regarding the application procedure, please refer to the website of the Home Affairs Department. With effect from 1st April 2007, the Secretary for Home and Youth Affairs has delegated his power as regards access, inspection and inventory taking of a deceased person’ safe deposit box to the Director of Home Affairs. The deceased’s family members or legal representative must check carefully to see if the deceased had made a Will (or whether the Will on hand is the latest/last Will or not). Whether or not a Will is left by the deceased would affect the application procedure for the Grant of Representation. If the applicant discovers additional assets which have not been included in the verifying affirmation, the applicant should file a Corrective Affirmation/Affidavit verifying the Additional Schedule of Assets and Liabilities (Before Grant).
If the value of the deceased’s estate does not exceed $50,000, will the application procedure be different?
- The testator should specify whether the employee will only receive the legacy if the employee is still in the testator’s employment at the date of death.
- You should apply to the Official Administrator for the exercise of his power to get in and administer the estate.
- A’s wife is alive but refused to apply for Letters of Administration.
- Son C, however, is physically handicapped and is earning minimum wages all along.
- If the Will is silent on this matter, these properties will fall into the residue of the estate and will be sold, with the proceeds forming part of the cash residue.
- The holder of the confirmation notice will be exempted from the intermeddling provisions and deal with the estates without any grant.
- It is a gift of a stated amount of money to a beneficiary.
But the personal representative must act honestly on the timing of distribution and must not postpone unreasonably. It means that, unless, as mentioned, the assets of the estate are not enough to pay off its debt, a spouse has the right to take the matrimonial property in satisfaction of his/her share under intestacy. There may be costs consequences to the personal representative personally though, especially if the claim is actually a claim involving beneficiaries. The nearest relatives of the deceased present at the death or during the deceased’s last illness or other relevant persons of the deceased are under a duty to register a death from natural causes within 14 days after such death. A testator should inquire the friend’s age, expertise in administering the estate and whether the friend has conflicts of interests e.g. if the friend is also a beneficiary. A caveat is a means of preventing a grant of probate or administration from being sealed without the caveator’s knowledge.
Another exception is a spouse’s right of first refusal over the matrimonial property. The same costs concerns set out above apply more or less equally to the defence of a claim. All the other joint tenant(s) need(s) to do is to register the death certificate of the deceased joint tenant. For other pension schemes, you need to refer to the scheme documents and contact the person-in-charge accordingly. For more details about death registration, please visit the Immigration Department’s website. 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.
It is typically used when a testator wishes to make minor changes to their existing will by adding, amending, or revoking part of it. A codicil is a legal document that supplements a will. If the answer is forzabet no, the deceased will die intestate.
Unless you are a person with privileged status (e.g. a soldier on actual military service, or a sailor), you cannot make an oral will. This is discussed in the section “Distribution of estate to the relevant parties”. For those without a Will, they are called “intestate”.
The beneficiaries of an estate may come up with an agreement as to how the estate be distributed. For more information about the distribution of estate under the law of intestacy, please see “If the deceased made no will, how can the relevant estate be distributed” and “What if there are no beneficiaries to distribute to? In such circumstances, the entitlement will go to the residuary estate and be distributed according to the will and/or intestacy laws, as may be applicable. A person will not be forced to take up if he or she does not want to. If the matrimonial property is worth more than his/her share under intestacy, he/she may pay the shortfall to the estate in return for the whole of the matrimonial property. If he/she profit himself/herself from the estate, e.g. use the estate’s money to invest for his/her own profit, he/she will liable to account for the profit so earned.
Under r.21 of Non-Contentious Probate Rules (Cap. 10A), the persons having a beneficial interest in the estate are preferred to be granted the administration. If a personal representative of a spouse is involved, If one can prove that all persons in the preceding order are either deceased or have waived their eligibility, he or she can apply for the grant of administration. (vi) any legatee or devisee, whether residuary or specific, entitled on the happening of any contingency, or any person having no interest under the will of the deceased who would have been entitled to a grant if the deceased had died wholly intestate. If the executor fails to appear or prosecute his application for a grant within the time limit, you may apply by inter-partes summons returnable to the Registrar for the appropriate order.
Details of the application procedure can be viewed from the website of the Home Affairs Department (Estate Beneficiaries Support Services). For deaths on or after 11th February 2006, the Applicant should follow the new procedure and arrangement which will be described in Procedures. However, the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481 of the laws of Hong Kong) empowers the Court to make orders that provisions be made out of the deceased’s estate for certain members of the deceased’s family and dependants. That means people can, by Will, leave their assets to whomever they wish. The guardian cannot however displace the rights of a surviving legal parent. For example, a trustee or a guardian may be appointed to monitor the assets inherited by the disabled.