A Will is a document which sets out how a person’s assets are to be distributed after his or her death. Before the abolition of estate duty, as the Applicant needs to obtain estate duty clearance before filing the application for a Grant with the Probate Registry, the Inland Revenue Department acted as the gate keeper to prevent possible intermeddling of the deceased’s estate. They will only be entitled to part of the estate (after deduction of the spouse’s entitlement) if the deceased leaves no issue and no parents. In reality, it often happens that 2 or more parties who are entitled to the assets survive and may claim the deceased’s estate together.
The estate agents’ services (with an overview of the sale and purchase procedures)
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.
Can a surviving spouse acquire the matrimonial property owned by the intestate?
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.
- All debts have to be ascertained and paid, or provisions for payment must be made, before the estate is distributed to the beneficiaries.
- 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).
- Under r.21(1)(ii) of Non-Contentious Probate Rules (Cap. 10A), I have a beneficial interest in the estates of my father and mother and am entitled to the respective grants to administration.
- 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.
- Unless the executor is a professional executor, serving as an executor is an unpaid position.
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- The maximum number of administrators (or adminstratrix in case of a female) of an estate is four .
- 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.
- Other substituted modes of service will only be granted if it is shown that personal service cannot be effected after reasonable attempts have been made.
- The power of an executor stems directly from the Will.
- 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.
- 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.
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.
What happens to a will that does not follow the legal requirement?
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).
Therefore, it is worth knowing more about the services provided by estate agents. No matter whether you are a vendor or a purchaser, the first party that you have to deal with is normally the estate agent. (iii) Vendor and purchaser sign a provisional (or preliminary) agreement for sale and purchase of the selected property (the provisional agreement is usually provided by the estate agent). (i) A vendor finds an estate agent(s) to sell the property, and/or a purchaser finds an estate agent(s) to search for appropriate properties to buy; More specifically, families or dependents of the deceased may claim against the estate if they contend that they should be given a share (if not provided under the will or intestacy) or a large share than the share that they are now given under will or intestacy. Note also that there may be claim under Inheritance (Provisions for Families and Dependents) Ordinance (Cap. 481) within 6 months of grant.
Can the testator have more than one Will at the same time?
No matter when the deceased dies, an estate will need to provide for salaries tax, profits tax and property tax due by the deceased up to the date of his/her death. If the deceased died before the abolition of estate duty in 2005 and the net value of the estate is over $7,500,000, estate duty is payable. “Insolvent” means that the assets of the estate are not enough to pay for the debts of the estate. First thing first, the executor/administrator needs to arrange payment or make provisions for the payment of the deceased’s debts, funeral and other expenses in relation to the estate.
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 forzabet 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).
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.
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.
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;
One major difference between an executor and an administrator The maximum number of administrators (or adminstratrix in case of a female) of an estate is four . A “Personal Representative” is a general term for either an executor or an administrator.
When the time limited for appearance has expired, if the Citee fails to appear or prosecute his application for a grant with reasonable diligence, he may apply by inter-partes summons returnable to the Registrar for an order for a grant to himself as provided by r.46(7)(a). Other substituted modes of service will only be granted if it is shown that personal service cannot be effected after reasonable attempts have been made. Rr.45 to 48 of Non-Contentious Probate Rules (Cap. 10A) provide for the procedures on the issuance and service of citations and entry of appearance by a person cited as well as the application for an order for a grant upon nonappearance. If he is entitled under r.21 of Non-Contentious Probate Rules (Cap. 10A), he must first clear off all persons entitled to a grant set out in the categories mentioned above. Without any person having a beneficial interest in the estate, a grant may be made to the Official Administrator. If the executor fails to appear or propound a will within the time limit, you may apply by motion for an order for a grant as if the will were invalid.