Under ss.21(1) and (2) of Non-Contentious Probate Rules (Cap. 10A), my father and I do not have a beneficial interest in the estate. He must prove that the potential administrator is clearly unsuitable e.g. he is missing or refuses to apply for the Letters of Administration. 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.
- Therefore, it is worth knowing more about the services provided by estate agents.
- For deaths before 15 th July 2005 , estate duty remains payable.
- Since grants have not been made in respect of the estates of my father and mother, I must apply for them.
- Instead, he made a will giving all his assets to his mistress.
- 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.
- If the spouse is given an absolute gift, it may be subject to a survivorship clause, which requires the spouse to live longer than the testator by a specified period before they are eligible to receive the gift.
When and how can the executor/administrator remove the items inside the deceased’s safe deposit box at a bank?
Letters of administration of the estate of a deceased person are granted where the deceased died wholly intestate. If we were maintained, either wholly or substantially, by the deceased, immediately before the death of the deceased, my father and I would be entitled to apply to the court for an order under s. Assuming that the deceased only leaves siblings and a cousin (i.e. my father), pursuant to s.21(1)(iv) of Non-Contentious Probate Rules (Cap. 10A), the deceased’s siblings have immediate beneficiary interests and are entitled to a grant to administration.
Grant of Probate
Any person having no interest under the will of the deceased but who would have been entitled to a grant if the deceased had died wholly intestate. A testator may choose to give their spouse either an absolute gift or a life interest in his estate. Therefore, wills typically grant personal representatives the power to obtain a receipt from the minor’s parent or guardian. Although an application for a Grant of Probate or Letters of Administration can be made in person, you should consider seeking legal advice if there are complicated issues or disputes involved in the estate (e.g. the deceased has a foreign property). The person entitled to the residuary legacy is the person who can take the remainder of the deceased’s estate after all the other conditions of the Will have been met (i.e. other beneficiaries have been paid, and all the debts and administration expenses have been settled).
Book traversal links for 1. Payment of Debts and Funeral Expenses
- 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).
- Please refer to the section about the “Capacity of an executor” for appointing a trusted person to be the executor.
- 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.
- Whilst the law in Hong Kong confers absolute testamentary freedom on individuals, it also recognizes the need for an individual to make financial provisions from his estate for his spouse and those who had been dependent on him financially during his lifetime.
- The beneficiaries of an estate may come up with an agreement as to how the estate be distributed.
- 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.
You should apply to the Official Administrator for the exercise of his power to get in and administer the estate. A testator may contact the in-house lawyer of the NGO and inquire if the NGO is willing to act as an executor. Therefore, a testator may ask the proposed executor in advance to see whether he or she is willing to act.
Book traversal links for The estate agents’ services (with an overview of the sale and purchase procedures)
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. In that case, a testator must also specify the conditions in which the executor will receive the legacy, e.g. Therefore, a testator must specify in the will if he wishes to leave the executor a legacy for taking up the role. It is a gift of a stated amount of money to a beneficiary.
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.
If the will only deals with the disposition of overseas property, the Court of Hong Kong will refuse grant of probate. Please refer to the section about the “Capacity of an executor” for appointing a trusted person to be the executor. A valid will will be duly executed upon the testator’s death. An application shall be made within 6 months since the first grant of representation, otherwise, leave of the Court must be obtained.
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
Payment of Debts and Funeral Expenses
Furthermore, he has to apply for and file a certified copy of the Schedule of Assets and Liabilities (including the Additional Schedule) and the Will (if any); and pay the necessary administration fees. He may apply for a Duplicate Grant in person or through a firm of solicitors in Hong Kong. S.33 of the Probate and Administration Ordinance (Cap. 10) set out circumstances where the grant “ought not to have been granted or contains an error” , then the court can revoke it. If the executor of the deceased executor proves the unbroken chain, he is the executor of every preceding testator. However, we may also apply for the Court to invoke its power under s.36 of Probate and Administration Ordinance (Cap. 10) to appoint us to be the administrators of the estate. Otherwise, the administration shall generally be granted to the Official Administrator under r.21(3) of Non-Contentious Probate Rules (Cap. 10A).
For more information regarding the distribution of estate, please go to the “case illustration”. In other words, they shall be treated as the children of the adopter but not the children of any other persons. Illegitimate children could succeed to their mother’s estate on her intestacy, but only when there were no surviving legitimate children. For details of legal marriage, please go to the topic of “Matrimonial Matters”.
If the executor does not wish to take up the appointment, or if no executor appointed by the deceased survives, then the person entitled to the residuary legacy in the Will has priority to apply for a Grant of Letters of Administration (with the relevant Will annexed). If the estate is insolvent, the personal representative must take extra care. The personal representative has to take reasonable steps to make sure that there is no outstanding debt owed by the estate before distribution. When there is a dispute between persons entitled to a Grant in the same degree (i.e. they are all equally entitled to apply for the Grant), an application has to be made to the High Court to determine who will be appointed as administrators.
Details of the application procedure can be viewed from the website of forzabet 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.
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).