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.
Is there a time limit to apply for a Grant of Probate or Letters of Administration?
While no provision has expressly prohibited a bankrupt to be appointed as an executor/administrator, the Court generally deemed a bankrupt unsuitable to assume the office. However, an issue may arise in relation to whether a later will was intended by the testator to supersede an earlier will. However, the label does not determine the legal effect of a document.
One half will be distributed to the surviving spouse and the other half will be divided equally amongst the child/children of the deceased. For details, please refer to section 4 of the Intestates’ Estates Ordinance. Usually the executor is a member of the family or a close and trusted friend of the whole family. This necklace could not be found in the old lady’s home or safe deposit box after her death.
- A citation is used to force some action or step in relation to the taking of the grant to the estate.
- In the given scenario, he can clear off all person with prior entitlement to a grant by a Citation.
- Your wife and your children could apply to the Court for provisions to be made for them from your estate.
- However, my father and I may have beneficial interest in the estate by virtue of s.
- If the executor refuses to take up the appointment, you should use Form C2.2 to call upon the executor to accept or refuse probate under r.46(1) of the Non-Contentious Probate Rules (Cap. 10A).
- In general, the court makes a grant of letters of administration to the person(s) whom it considers will most effectively administer the estate.
- One point to note is that for those adopted children (i.e. they have been adopted by persons through a legal adoption process), they have the same status as the natural children.
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.
Can the testator make one Will to deal with Hong Kong property and another Will to deal with overseas property?
It permits a separate document that has not been executed in compliance with s.5(1) of Wills Ordinance (Cap. 30) to be included as part of the will and be accepted for probate. Under s.23A of the Wills Ordinance (Cap. 30), the Court has the power to rectify a will if the will fails to carry out the testator’s intention due to a clerical mistake or a failure to comprehend his instructions. 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.
If there are two personal representatives, can one of them deal with the estate alone?
When a person dies, there may be estate (the money in bank accounts, company shares, real estate and other assets, etc.) left under the deceased’s name. A failure to observe the proper order can render the personal representatives personally liable. Therefore, his/her authority and duty as an executor starts from the very moment the testator (the “Will-maker”) dies. This power is useful when the next-of-kin of the deceased, who would otherwise be entitled to be appointed as administrator, is under 21 years old or has insufficient mental or physical capacity to administer the estate. If the deceased died intestate (i.e. no Will is found or if the Will has been revoked), the right of a person to apply for a Grant of Letters of Administration would be governed by the law of intestacy. How to express personal wishes regarding funeral arrangements in the will.
In the event that a child has predeceased the deceased without leaving any child(ren) of his/her own and the deceased has more than one surviving child, the predeceased child’s share of the estate will be equally divided among other surviving children. If the deceased’s children all survived him/her, the residuary estate will be divided equally among them, and the grandchildren will not receive any portion of the estate. On the other hand, if one or both parents survive, the siblings cannot obtain a share of the deceased’s estate. One half will be distributed to the surviving spouse and the other half will be distributed to the surviving parent(s). If the deceased has issue, the deceased’s parents, brothers and sisters cannot obtain anything even if the deceased’s spouse has predeceased (die before) the deceased. (C) The deceased leaves a spouse, parents and siblings, but no issue
In general, there is no remuneration for a personal representation. The duty to account does not arise only at the end of the administration. (2) give details of movement of assets, incomes and expenditure of the estate;
Administration of Estate
Ademption happens when a specific gift under a will no longer exists at the time of the deceased’s demise. There are many circumstances under which the representative may postpone full distribution such as ongoing claim by a third party claimant against the estate. If the matrimonial property is worth more than his/her share under intestacy, he or she may pay the shortfall to the estate in return for the whole of 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 a gift is given to an unincorporated association, all members of that association receive that gift. The testator must check and confirm the name, address and the charitable status of the charity. Unless the executor is a professional executor, serving as an executor is an unpaid position. However, if the testator intends to benefit natural and legitimate children only, they must clearly express this in the will. Such a gift is intended for a group of beneficiaries rather than for individual recipient(s). When beneficiaries are recognized through a general or collective formula, typically based on their relationship rather than by name, a gift is considered to be to a class.
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, an application must be made to the Registrar under r.53 of the Non-Contentious Probate Rules (Cap. 10A).
- You may wish to make specific gifts of money, shares, or real estate to certain persons or charities.
- For example, a trustee or a guardian may be appointed to monitor the assets inherited by the disabled.
- An example of a debt incurred after death is the management fee of a property that is owned by the deceased.
- 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.
- 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.
Instead, he may apply 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). If the testator has publicized the existence of his Will during his lifetime, the applicant may not be able to swear to the intestacy of the deceased. We must prove that the potential administrators are clearly unsuitable e.g. they refuse to apply for the Letters of Administration or that it is more convenient to do so. 3 of the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481) and might have beneficial interest in the estate. However, my father and I may have beneficial interest in the estate by virtue of s. Therefore, the deceased’s siblings have immediate beneficial interest in the estate, but my father and I do not have immediate beneficial interest in the estate.
For instance, false representation was made to the testator and relied by the testator to execute the will, clauses were inserted in the will before it is signed without the testator’s knowledge. Where the testator executed a will that he did not know or approve because of one’s deceptive behaviour, the Court may find that the will was invalid on forzabet the ground of fraud. However, those who allege must prove and the Court requires evidence of such undue influence or coercion, rather than speculation of what the testator had or had not done or should or should not do.
Factors to be considered when appointing an executor to manage the estate;5. Declaration of the testator’s domicile and its impact on the settlement of the estate;4. The wife may apply for maintenance and she has a good chance to be given a substantive share from the estate. You may make an application under section 7 of the Probate and Administration Ordinance (Cap 10) to compel the executor to so disclose. This is especially so for an executor, for his duty and power comes from the will directly.
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