There are a number of situations in which a gift under a will is said to have failed, i.e. the beneficiary cannot get what the will intends to give him/her. Other than exceptions such as above, a beneficiary of the estate generally does not have the right to insist on keeping a particular asset unsold. Exceptions include specific gift under a will (i.e. the deceased gave a specific asset to a specific beneficiary). If it is a life policy whose beneficiary is someone other than the deceased (e.g. deceased’s families), it does not fall within a part of the estate. Please refer to the section about “capacity of an executor”. For an estate more than $150,000, follow the usual procedure for obtaining a grant.
Payment of Debts and Funeral Expenses
- Most often, you will leave your personal belongings to your spouse.
- A Will is a document which sets out how a person’s assets are to be distributed after his or her death.
- For instance, the testator executed the will under threats.
- 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.
- Renounce orally on the hearing of any petition or probate action by counsel on his behalf; or
- In other words, they shall be treated as the children of the adopter but not the children of any other persons.
- 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.
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. If the deceased parent had a Will and he gave “his children” a gift or a sum of money to share, the illegitimate children were not entitled to share in the gift. Before the 19th June 1993, illegitimate children were not entitled to succeed to their deceased father’s estate if their father died intestate (without a 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.
- Illegitimate children could succeed to their mother’s estate on her intestacy, but only when there were no surviving legitimate children.
- 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.
- But the personal representative must act honestly on the timing of distribution and must not postpone unreasonably.
- 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.
- If the personal representative is ordered by court to pay the opposing party legal costs, the opposing party may enforce the costs against the personal representative personally.
- The information available at the Community Legal Information Centre (CLIC) is for preliminary reference only and should NOT be considered as legal advice.
Inheritance (Provision for Families and Dependants) Ordinance
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.
As a fiduciary, a personal presentative is bound to do his best for the benefit of the estate. He or she may be liable personally for the resulting waste if he/she failed such duty by wilful misconduct or negligence etc. HK$1,000,000 to a beneficiary, the beneficiary is entitled to interest from the end of the 12 months after the deceased’s demise (i.e. the so-called executor’s year).
If the executor resides out of Hong Kong and refuses to assume the office, how can he renounce the right to probate?
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.
(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.
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).
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.
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.
Can probate be applied for if the original Will is lost and there is only a copy of the Will?
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). You may apply for the issuance of a citation by the Probate Registry to the executor under s.30(1) of Probate and Administration Ordinance (Cap. 10). Yes, if the person has an interest in a deceased’s 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 forzabet the hearing of any petition or probate action by counsel on his behalf; or
Grant of Probate
The Court generally views that an insolvent person is unsuitable to be appointed an executor. Probate shall not be granted to more than four persons. Where the residue is not wholly disposed of by the will, any person entitled to share in the residue
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. Under such circumstances, the surviving spouse could make a claim for a share of the estate, and the illegitimate child could claim for maintenance to be provided for him out of the estate pursuant to the Inheritance (Provision for Family and Dependants) Ordinance. Any aggrieved party may bring legal action against the executor to contest the validity of the deceased’s Will.
You may refrain from committing acts which may lead the Court to consider you unsuitable for appointment as an executor. There are few limitations in relation to the choice of an executor. The designated executor always has the option to renounce. You can appoint a friend to be the executor, but there are generally a few requirements applicable for an individual to be appointed an executor.
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