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).
In the event that a child has predeceased the deceased without leaving any child(ren) of his/her own and the deceased has more than one surviving child, the predeceased child’s share of the estate will be equally divided among other surviving children. If the deceased’s children all survived him/her, the residuary estate will be divided equally among them, and the grandchildren will not receive any portion of the estate. On the other hand, if one or both parents survive, the siblings cannot obtain a share of the deceased’s estate. One half will be distributed to the surviving spouse and the other half will be distributed to the surviving parent(s). If the deceased has issue, the deceased’s parents, brothers and sisters cannot obtain anything even if the deceased’s spouse has predeceased (die before) the deceased. (C) The deceased leaves a spouse, parents and siblings, but no issue
Powers of the Personal Representatives in Dealing with the Assets
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.
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.
Abolition of Estate Duty and the procedures for applying for a Grant of Representation
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.
- When making a Will, it is advisable for special trust provisions to be arranged for a beneficiary who is a disabled.
- Simply speaking, the estate duty payable is a percentage of the value of the estate.
- A Will is a document which sets out how a person’s assets are to be distributed after his or her death.
- The order of priority under the law relating to the entitlement of the deceased’s estate is similar to the order relating to the eligibility to apply for a Grant of Letters of Administration (please refer to the relevant question and answer).
- The Court generally views that an insolvent person is unsuitable to be appointed an executor.
- To apply for the grant de bonis non, it must be established that there is no chain of executorship and all executors named in the will of the deceased must be cleared off, i.e. by reciting their death or renunciation.
- Son C may apply for maintenance and has a good chance to get a larger share than 1/3.
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).
- 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.
- 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).
- (3) give details of the whereabouts of all properties (including cash) of the estate which the personal representative is duty bound to administer; and
- The duty to account does not arise only at the end of the administration.
- Therefore, a testator must specify in the will if he wishes to leave the executor a legacy for taking up the role.
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.
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.
Unless you are a person with privileged status (e.g. a soldier on actual military service, or a sailor), you cannot make an oral will. This is discussed in the section “Distribution of estate to the forzabet relevant parties”. For those without a Will, they are called “intestate”.
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.
If a person (other than the executor) keeps the Will and refuses to give it to the executor, what can the executor do?
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
What if the estate includes a business?
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.
What are some matters to consider for gifts to various beneficiaries?
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.
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;
II. The estate agents’ services (with an overview of the sale and purchase procedures)
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.
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