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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.
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.

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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.

• 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 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.
• A’s wife is alive but refused to apply for Letters of Administration.
• You should apply to the Official Administrator for the exercise of his power to get in and administer the estate.
• The holder of the confirmation notice will be exempted from the intermeddling provisions and deal with the estates without any grant.
• Son C, however, is physically handicapped and is earning minimum wages all along.
• It is a gift of a stated amount of money to a beneficiary.

In default of any such person it shall be granted to the Official Administrator. The citation and verifying affidavit must be personally served (r.45(4)). In the given scenario, he can clear off all person with prior entitlement to a grant by a Citation. For a person who died on or after 11 th February 2006 , the relevant application fee is $265 and the fee for engrossment of a Grant is $72. Administration shall not be granted to more than four persons in respect of the same 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.
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.

Duty of Not to Waste and Duty as a Fiduciary

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.

• The above documents must be lodged together with the documents listed in the section “Documents in support of the application” (see below) with the Probate Registry.
• It is prudent for the personal representative to require the beneficiary to issue a signed receipt upon distribution so as to avoid unnecessary disputes down the road.
• Debts can be incurred both before and after the death of the deceased.
• Absent will, the estate will be distributed by the laws of intestacy as discussed.
• 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.
• A testator may choose to give their spouse either an absolute gift or a life interest in his estate.

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

Probate Series Episode 1: Law of Succession: Making a Will

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 forzabet 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.
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.

The estate agents’ services (with an overview of the sale and purchase procedures)

For instance, the testator executed the will under threats. However, if a testator were a) mentally ill or b) extremely ill and were under medication, he needs to prove that he was conscious for a period such that he knew and agreed to the content of the will when the will was signed. For example, a clause is inserted in the Will stating that the subsequent marriage with a named person shall not revoke the Will. Usually a person has to take action to revoke his/her own Will. No matter whether or not the deceased has made a Will, generally a Grant of Representation will have to be obtained from the Probate Registry of the High Court of the Hong Kong Special Administrative Region before any of the deceased’s assets in Hong Kong can be dealt with.

What happen if the value of the estate exceeds $50,000 but does not exceed $150,000?

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.
The personal representative of any such person subject to r.25(3) of Non-Contentious Probate Rules (Cap. 10A) The personal representative of any such person subject to r.25(3) of Non-Contentious Probate Rules (Cap. 10A) (A living person is preferred to a personal representative); Will the executor only receive the legacy after he has obtained probate and administered the estate? 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. Minors cannot issue a valid receipt to personal representatives. 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.
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.

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.