26 Oct Google Earth

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).

If the value of the deceased’s estate does not exceed $50,000, will the application procedure be different?

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.
While no provision has expressly prohibited a bankrupt to be appointed as an executor/administrator, the Court generally deemed a bankrupt unsuitable to assume the office. However, an issue may arise in relation to whether a later will was intended by the testator to supersede an earlier will. However, the label does not determine the legal effect of a document.

What are some matters to consider for gifts to various beneficiaries?

• Will the executor only receive the legacy after he has obtained probate and administered the estate?
• The creditors should go after the estate’s personal representatives (i.e. the executor or the administrator of the deceased’s estate) .
• 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.
• For deaths between 15 th July 2005 and 10 th February 2006 , the Applicant still needs to follow the old practice to obtain estate duty clearance.
• Abatement happens when the remaining assets of the estate is not enough to pay off its funeral expenses and debts.
• Administration shall not be granted to more than four persons in respect of the same property.
• Generally speaking, only documents relevant to an application for a Grant of Representation, or personal items relating to a person other than the deceased and urgently required by that person, can be removed.

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.

Duty to Account

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.

• 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.
• In general, a person has the testamentary freedom to decide by his/her will as to how to distribute his/her assets after he/she dies.
• It is a gift of no specifically identified item which the beneficiary is to receive but merely a description of property to be passed.
• You are advised to consult a solicitor for how to take appropriate legal actions to claim repayment.
• 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 estate is insolvent, the personal representative must take extra care.
• The wife may apply for maintenance and she has a good chance to be given a substantive share from the estate.

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.

Can the testator deal with his overseas property in the Will?

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 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.
If a Will is found, the Holder (if he/she is the named executor) can take the Will away after making a copy of the same and placing the copy in the safe deposit box. For more information regarding the application procedure, please refer to the website of the Home Affairs Department. With effect from 1st April 2007, the Secretary for Home and Youth Affairs has delegated his power as regards access, inspection and inventory taking of a deceased person’ safe deposit box to the Director of Home Affairs. The deceased’s family members or legal representative must check carefully to see if the deceased had made a Will (or whether the Will on hand is the latest/last Will or not). Whether or not a Will is left by the deceased would affect the application procedure for the Grant of Representation. If the applicant discovers additional assets which have not been included in the verifying affirmation, the applicant should file a Corrective Affirmation/Affidavit verifying the Additional Schedule of Assets and Liabilities (Before 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.
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.
It is a gift of no specifically identified item which the beneficiary is to receive but merely a description of property to be passed. The testator must specifically identify or describe the gift in his will. It is a gift of something the testator owns at the date he makes his will. If the deceased dies without a Will, the distribution of the assets and who can administer the estate will be governed by the law of intestate. The person making the Will is called the “testator”(if forzabet male) or “testatrix”(if female). After the abolition of estate duty, provisions have been made in the laws of Hong Kong to safeguard against intermeddling of an estate.