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).
Payment of Debts and Funeral Expenses
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.
- Son C may apply for maintenance and has a good chance to get a larger share than 1/3.
- A Will is a document which sets out how a person’s assets are to be distributed after his or her death.
- 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.
- Simply speaking, the estate duty payable is a percentage of the value of the estate.
- Renounce orally on the hearing of any petition or probate action by counsel on his behalf; or
Searching for a Will and gaining access to the deceased’s safe deposit box in a bank
- Exceptions include conveyancing of landed property, which can only be made with the concurrence of all personal representatives.
- 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.
- 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.
- However, an issue may arise in relation to whether a later will was intended by the testator to supersede an earlier 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.).
- An application should be made for an order to revoke the Letters of Administration under s.33 of Probate and Administration Ordinance (Cap. 10).
- The grandmother in the instant scenario had three children, A, B and C, had all survived the grandmother, each child would have taken the residuary estate in equal shares.
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. Absent will, the estate will be distributed by the laws of intestacy as discussed. That inventory will then be filed in the Schedule of assets and forzabet liabilities with the Probate Registry. It is for the executor named in the Will or the intended administrator to take that inventory. However, the surviving renter will be able to remove all contents of the safe deposit box without authorisation from the Home Affairs Department after 12 month from the date of death of the deceased.
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
When and how can the executor/administrator remove the items inside the deceased’s safe deposit box at a bank?
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.
An application should be made for an order to revoke the Letters of Administration under s.33 of Probate and Administration Ordinance (Cap. 10). However, a caveat can be renewed repeatedly every six months, potentially impacting the estate for many years. If all required documents are in order, the application should be submitted as soon as possible. The grant made is limited until the original or a more authentic copy is proved.
Is there a time limit to apply for a Grant of Probate or Letters of Administration?
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.
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.
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.
Instead, he may apply 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). If the testator has publicized the existence of his Will during his lifetime, the applicant may not be able to swear to the intestacy of the deceased. We must prove that the potential administrators are clearly unsuitable e.g. they refuse to apply for the Letters of Administration or that it is more convenient to do so. 3 of the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481) and might have beneficial interest in the estate. However, my father and I may have beneficial interest in the estate by virtue of s. Therefore, the deceased’s siblings have immediate beneficial interest in the estate, but my father and I do not have immediate beneficial interest in the estate.
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.
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.
As such, in case of insolvency, legal assistance is advisable. All debts have to be ascertained and paid, or provisions for payment must be made, before the estate is distributed to the beneficiaries. An example of a debt incurred after death is the management fee of a property that is owned by the deceased. Debts can be incurred both before and after the death of the deceased. You should consult your own lawyer if you want to obtain further information or legal assistance concerning any specific legal matter. The information available at the Community Legal Information Centre (CLIC) is for preliminary reference only and should NOT be considered as legal advice.