12 Sep PROBATE Community Legal Information Centre CLIC

The personal representative of any such person subject to r.25(3) of Non-Contentious Probate Rules (Cap. 10A) The personal representative of any such person subject to r.25(3) of Non-Contentious Probate Rules (Cap. 10A) (A living person is preferred to a personal representative); Will the executor only receive the legacy after he has obtained probate and administered the estate? If the spouse is given an absolute gift, it may be subject to a survivorship clause, which requires the spouse to live longer than the testator by a specified period before they are eligible to receive the gift. Minors cannot issue a valid receipt to personal representatives. 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.
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.

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

The law of your country of domicile as at the date of your death governs gifts of movable properties such as shares and money in bank accounts. Your domicile as at the date of death can have implications on the disposition of estate in your Will. forzabet Typically, the Court requires evidence that at least one medical practitioner has examined and confirmed the ill testator’s mental capacity before signing the will, and has witnessed the process.

What happen if the value of the estate exceeds $50,000 but does not exceed $150,000?

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 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.
• Without any person having a beneficial interest in the estate, a grant may be made to the Official Administrator.
• 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.
• 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.
• Therefore, his/her authority and duty as an executor starts from the very moment the testator (the “Will-maker”) dies.
• After the abolition of estate duty, provisions have been made in the laws of Hong Kong to safeguard against intermeddling of an estate.

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

• A testator may choose to give their spouse either an absolute gift or a life interest in his estate.
• In collecting the assets, the personal representative must act with due diligence, meaning to take reasonable steps to collect all assets due to the deceased as quickly as practically possible.
• Absent will, the estate will be distributed by the laws of intestacy as discussed.
• There are many circumstances under which the representative may postpone full distribution such as ongoing claim by a third party claimant against the estate.
• However, those who allege must prove and the Court requires evidence of such undue influence or coercion, rather than speculation of what the testator had or had not done or should or should not do.
• It is prudent for the personal representative to require the beneficiary to issue a signed receipt upon distribution so as to avoid unnecessary disputes down the road.

Can the executor/administrator initiate a litigation to recover assets of the estate?

That is why it is prudent for the personal representative to advertise and wait for at least 2 months as set out in this Part. Exceptions include conveyancing of landed property, which can only be made with the concurrence of all personal representatives. The grant of probate is a proof of the will only and not itself the source of duty/power. If, however, the personal representative delay unreasonably for a prolonged period, it may constitute a ground for removal of that representative from office by the Court. The situation may be different if the will specifically asks the personal representative to run the deceased’s business for a period, or if all the beneficiaries so agree. In general, a personal representative has no powers to hold on to the shares of the deceased and run the company indefinitely.

When and how can the executor/administrator remove the items inside the deceased’s safe deposit box at a bank?

When the grantee himself has died without fully administering the estate of the deceased, unless there is a chain of executorship, a further or a new grant is required to appoint a personal representative in respect of the unadministered estate. 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. In appropriate cases, the beneficiary may also apply to Court for the removal of the personal representative and for a replacement administrator to be appointed instead. The beneficiary may commence an administration action to compel the personal representative to do his/her work properly. In general, each and every personal representative can deal with the assets of the estate alone and the transaction so conducted would be binding on the estate.
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.
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.

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

More likely than not, his application would either fail or succeed only to a limited extent. Being an able-bodied adult, the son’s chance of a successful application for maintenance is much lower. The deceased therefore made a will giving all his assets to his brother and his 2 nephews instead.

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 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.
Son C may apply for maintenance and has a good chance to get a larger share than 1/3. The deceased died intestate, meaning that Sons A, B and C are to inherit 1/3 of the estate each under laws of intestacy. Physically handicapped though he is, Son C has been a loving and caring son to the deceased. Son C, however, is physically handicapped and is earning minimum wages all along.