952-451-4987For instance, the testator executed the will under threats. However, if a testator were a) mentally ill or b) extremely ill and were under medication, he needs to prove that he was conscious for a period such that he knew and agreed to the content of the will when the will was signed. For example, a clause is inserted in the Will stating that the subsequent marriage with a named person shall not revoke the Will. Usually a person has to take action to revoke his/her own Will. No matter whether or not the deceased has made a Will, generally a Grant of Representation will have to be obtained from the Probate Registry of the High Court of the Hong Kong Special Administrative Region before any of the deceased’s assets in Hong Kong can be dealt with.
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.
If there are two personal representatives, can one of them deal with the estate alone?
- A testator should inquire the friend’s age, expertise in administering the estate and whether the friend has conflicts of interests e.g. if the friend is also a beneficiary.
- For details of legal marriage, please go to the topic of “Matrimonial Matters”.
- In such case, unless the overall assets of the estate is not enough to pay off its debt and hence the specific gift has to be sold too, the beneficiary has the right to insist on taking that particular gift.
- 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.
- If the will only deals with the disposition of overseas property, the Court of Hong Kong will refuse grant of probate.
- Exceptions include where the will expressly providing so, e.g. by way of a gift if the executor is a family member.
- Exceptions include specific gift under a will (i.e. the deceased gave a specific asset to a specific beneficiary).
For deaths before 15 th July 2005 , estate duty remains payable. Before the abolition of estate duty on 11 th February 2006 , “Estate Duty Clearance” (evidencing the required duty has been paid) needs to be obtained before an application can be made for a Grant of Representation. In practice, it would be of less significance as the beneficiaries ranking in priority under intestacy, being the surviving spouse and children of the deceased, would generally be the persons expecting financial provisions from the deceased’s estate. You should consider appointing a person to act as guardian (to have legal custody) of any children who are minors (below the age of 18) at the time of your death. Discretionary powers will therefore be given to the executor to distribute as much of the income and/or capital for the benefit of the child as the executor sees fit before the child can formally receive all the assets.
Probate Series Episode 1: Law of Succession: Making a Will
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.
A man could have made a Will that left everything to his legitimate children with no provision for his surviving wife or illegitimate child whom he had been maintaining before his death. Even if the intention of the testator is clearly stated in the Will, it may still be challenged. Late application will not be entertained at all unless with exceptional reasons. This includes ex-spouse, lover, adult child, godchild or even parents and siblings who were so maintained before the deceased’s demise.
What are the requirements for a valid will?
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).
Is there a time limit to apply for a Grant of Probate or Letters of Administration?
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.
Searching for a Will and gaining access to the deceased’s safe deposit box in a bank
- For details, please refer to section 4 of the Intestates’ Estates Ordinance.
- One half will be distributed to the surviving spouse and the other half will be divided equally amongst the child/children of the deceased.
- You may make an application under section 7 of the Probate and Administration Ordinance (Cap 10) to compel the executor to so disclose.
- Then, the applicant should follow the application procedure for summary administration or a Grant of Probate/ Letters of Administration (as the case may be).
- He must own the specific gift at the time of his death in order to pass the gift to the designated beneficiary.
- It may take months or, in complicated cases, more than a year to obtain grant.
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.
(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.
The personal representative of any such person subject to r.25(3) of Non-Contentious Probate Rules forzabet (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.
Instead, he made a will giving all his assets to his mistress. It is advisable to seek legal advice as soon as possible. It may take months or, in complicated cases, more than a year to obtain grant. You are advised to consult a solicitor for how to take appropriate legal actions to claim repayment. However, since C has died before the grandmother did with two children (D & E) of his/her own, D and E will take equally C’s share of the residuary estate when they reach 18 if not already have or married before 18. 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.
But the personal representative must act honestly on the timing of distribution and must not postpone unreasonably. It means that, unless, as mentioned, the assets of the estate are not enough to pay off its debt, a spouse has the right to take the matrimonial property in satisfaction of his/her share under intestacy. There may be costs consequences to the personal representative personally though, especially if the claim is actually a claim involving beneficiaries. The nearest relatives of the deceased present at the death or during the deceased’s last illness or other relevant persons of the deceased are under a duty to register a death from natural causes within 14 days after such death. A testator should inquire the friend’s age, expertise in administering the estate and whether the friend has conflicts of interests e.g. if the friend is also a beneficiary. A caveat is a means of preventing a grant of probate or administration from being sealed without the caveator’s knowledge.
In such a case, the Judge may make an order for a grant contrary to the terms in the will. The executor will then be required to accept or renounce his executorship. S.25 of the Probate and Administration Ordinance (Cap. 10) governs the number of grantees to be allowed. (ii) any residuary legatee or devisee holding in trust for any other person;