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In such a case, forzabet 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;

III. Alterations to Wills

When making a Will, it is advisable for special trust provisions to be arranged for a beneficiary who is a disabled. If no provision is made in a Will and a common disaster occurred rendering it uncertain which spouse survives the other, then the younger is deemed to have survived the elder. 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. For example, if the deceased has two flats (one of them in Hong Kong and the other is situated outside Hong Kong), then the foreign property will not be included in the estate in respect of the Grant of Representation in Hong Kong. On the other hand, the law governing disposition of land/flats (real estate) which are « immovable » is the law where the land/flats are located. The law in some countries (but not in Hong Kong) requires that you must leave a certain proportion of your estate to your children or widow. 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. 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.
  • The law in some countries (but not in Hong Kong) requires that you must leave a certain proportion of your estate to your children or widow.
  • 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.
  • In general, a personal representative has no powers to hold on to the shares of the deceased and run the company indefinitely.
  • 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.
  • For more information regarding the distribution of estate, please go to the « case illustration ».
  • The grant will usually be made to the attorney of the person entitled to the grant.
  • The way to take inventory is to physically search and ascertain those personal belongings of the deceased.

VI. Administration of Estate

In general, the court makes a grant of letters of administration to the person(s) whom it considers will most effectively administer the estate. A valid receipt releases personal representatives from their duty to distribute estate. Estate Duty is charged on the total value of all properties situated in Hong Kong (including all personal assets and real estate) which « pass » (are left behind) or are deemed to pass in connection with a person’s death. If the wife insists that she should get more from the estate than what the laws of intestacy stipulates, she may make an application under Inheritance (Provision for Families and Dependents) Ordinance (Cap. 481). Unless the will shows contrary intention, that beneficiary’s issue will take, in equal shares if more than one, the assets that the deceased originally left behind for that beneficiary. For legal reasons, it is advisable to put the agreement in a deed and have every beneficiary sign it. In case where a professional executor is appointed instead, a charging clause would usually be included in the will which authorizes that professional executor to charge at a certain rate for the work carried out for the estate. Exceptions include where the will expressly providing so, e.g. by way of a gift if the executor is a family member.

Can the testator make one Will to deal with Hong Kong property and another Will to deal with overseas property?

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. 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).
  • But the personal representative must act honestly on the timing of distribution and must not postpone unreasonably.
  • The information available at the Community Legal Information Centre (CLIC) is for preliminary reference only and should NOT be considered as legal advice.
  • If more assets are found later resulting in the value of the estate exceeding $50,000, the Applicant should notify the Director of Home Affairs and, if a confirmation notice has been issued, return it for cancellation.
  • Illegitimate children could succeed to their mother’s estate on her intestacy, but only when there were no surviving legitimate children.
  • Whilst the personal representative may seek to be reimbursed by the estate his/her costs or the opponent’s costs that he/she is ordered to pay, the beneficiaries may oppose on the ground that the personal representative have unreasonably initiated or defended the claim.
54 of Non-Contentious Probate Rules (Cap. 10A), an application for an order for a grant of special administration under section 37 of the Ordinance where a personal representative is residing outside Hong Kong shall be made to the court on motion. A personal representative has a duty to administer the assets of the estate according to the law with due diligence. E.g. if the beneficiaries consider the personal representative having unduly initiated or defended a legal action, they may ask the court not to allow the representative to be reimbursed from the estate for the legal costs. Please also note that a death certificate is generally needed to support an application for a grant of personal representation of the estate of the deceased. Where a personal representative is residing abroad, an application can be made for a grant of special administration if no previous grant has been made. The personal representative of the deceased grantee should first apply for a ‘leading grant’ in the estate of the deceased grantee before applying for the grant de bonis non. Generally speaking, if such deceased gives a general gift of e.g. Lapse happens when the intended beneficiary under the will dies before the deceased. One exception is that the specific gift changes in form only. However, if the will does not include a proper attestation clause, an affidavit of due execution should be filed (Form W3.1) at the time of the application (see r.10 of Non-Contentious Probate Rules (Cap.10)). 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. Documents in support of the application (for a Grant of Letters of Administration) 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. The applicant has to sign that document and swear for the truthfulness of its content in front of a solicitor or a court officer. The Court generally views that an insolvent person is unsuitable to be appointed an administrator.

Probate Series Episode 2: Law of Succession: Common Terms of a Will

(b) a firm (The appointment will typically be considered valid for those individuals who were partners in the firm at the time the will was executed, rather than at the time of the testator’s death.). The Court generally views that an insolvent person is less desirable to be appointed an executor. The applicable ground is that a grant had been obtained by a false or incorrect statement because a will has been discovered after a grant of administration. A citation is used to force some action or step in relation to the taking of the grant to the estate.

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

If the deceased died testate (i.e. he/she had made a Will appointing an executor), the executor is the only person who is entitled to apply for a Grant of Probate of the Will. Whilst the personal representative may seek to be reimbursed by the estate his/her costs or the opponent’s costs that he/she is ordered to pay, the beneficiaries may oppose on the ground that the personal representative have unreasonably initiated or defended the claim. There is no objection for the intended personal representative to repay the debt out of pocket first, and be reimbursed by the estate subsequently. The surviving spouse can make this request in writing to the personal representative within 12 months after the first taking out of representation.

If the executor resides out of Hong Kong and refuses to assume the office, how can he renounce the right to probate?

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; 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).