Any person having no interest under the will of the deceased but who would have been entitled to a grant if the deceased had died wholly intestate. A testator may choose to give their spouse either an absolute gift or a life interest in his estate. Therefore, wills typically grant personal representatives the power to obtain a receipt from the minor’s parent or guardian. Although an application for a Grant of Probate or Letters of Administration can be made in person, you should consider seeking legal advice if there are complicated issues or disputes involved in the estate (e.g. the deceased has a foreign property). The person entitled to the residuary legacy is the person who can take the remainder of the deceased’s estate after all the other conditions of the Will have been met (i.e. other beneficiaries have been paid, and all the debts and administration expenses have been settled).
Letters of Administration (in case of intestacy)
No matter when the deceased dies, an estate will need to provide for salaries tax, profits tax and property tax due by the deceased up to the date of his/her death. If the deceased died before the abolition of estate duty in 2005 and the net value of the estate is over $7,500,000, estate duty is payable. “Insolvent” means that the assets of the estate are not enough to pay for the debts of the estate. First thing first, the executor/administrator needs to arrange payment or make provisions for the payment of the deceased’s debts, funeral and other expenses in relation to the estate.
Can the testator make one Will to deal with Hong Kong property and another Will to deal with overseas property?
The creditors should go after the estate’s personal representatives (i.e. the executor or the administrator of the deceased’s estate) . If, however, the deceased leaves behind assets in the Mainland, the intended personal representative may need to seek the Mainland legal advice as to those assets. The personal representative’s duty is to distribute the shares of the company to the beneficiaries (if the will so specifically gifts) or to sell the shares and distribute the sale proceeds to the beneficiaries according to will or the laws of intestacy. The personal representative would be personally liable for the said contractual breach or tortious wrong to that third party and, depending on the circumstances, may or may not be entitled to reimbursement by the estate. A personal representative may assume liability towards third party if he/she commits breach of contract in the name of the estate or commit act of negligence in the course of administration. (3) give details of the whereabouts of all properties (including cash) of the estate which the personal representative is duty bound to administer; and
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).
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.
- First thing first, the executor/administrator needs to arrange payment or make provisions for the payment of the deceased’s debts, funeral and other expenses in relation to 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.
- 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.
- If the matrimonial property is worth more than his/her share under intestacy, he/she may pay the shortfall to the estate in return for the whole of the matrimonial property.
- Therefore, a testator may ask the proposed executor in advance to see whether he or she is willing to act.
VI. Administration of Estate
How to distribute the remaining estate in the will; and7. Basic information at the beginning of the will, such as the date of creation and description of the testator;2. For more information on probate, please visit Probate。 If in doubt, you are strongly advised to seek legal advice. The teenage daughters may apply for maintenance and have a good chance to get more than what they get under intestacy laws. The deceased died intestate recently and her husband emerges out of nowhere asking for his share from the estate (i.e. more than 1/2).
Duty to Account
The beneficiaries of an estate may come up with an agreement as to how the estate be distributed. For more information about the distribution of estate under the law of intestacy, please see “If the deceased made no will, how can the relevant estate be distributed” and “What if there are no beneficiaries to distribute to? In such circumstances, the entitlement will go to the residuary estate and be distributed according to the will and/or intestacy laws, as may be applicable. A person will not be forced to take up if he or she does not want to. If the matrimonial property is worth more than his/her share under intestacy, he/she may pay the shortfall to the estate in return for the whole of the matrimonial property. If he/she profit himself/herself from the estate, e.g. use the estate’s money to invest for his/her own profit, he/she will liable to account for the profit so earned.
A personal representative has the duty to account to the beneficiaries for the estate. Generally speaking, a personal representative has the powers to sell the assets of the estate for the purpose of paying debts or expenses of the estate or for the purpose of distribution. Likewise, a personal representative has the powers to defend the estate in a legal action and to reach settlement with the claimant. In particular, a person representative has the power to commence legal proceedings to collect assets for the estate, including but not limited to obtain a freezing order against the party holding the assets so that that party cannot dispose of those assets until court order.
- The deceased died intestate recently and her husband emerges out of nowhere asking for his share from the estate (i.e. more than 1/2).
- One of the main functions of a Will is to provide instructions for distributing the estate according to the intention of the testator (person making the Will, i.e. the deceased).
- 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.
- 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.
- Where the residue is not wholly disposed of by the will, any person entitled to share in the residue
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.
It is possible to revoke a grant of probate or administration if there is a valid reason, and a new grant can be issued instead. The grant will usually be made to the attorney of the person entitled to the grant. Since grants have not been made in respect of the estates of my father and mother, I must apply for forzabet them. A grant de bonis non may be made to any person who is equally entitled as the previous grantee. If he is not entitled under r.21 of Non-Contentious Probate Rules (Cap. 10A), he may apply for the Court to invoke its power under s.36 of Probate and Administration Ordinance (Cap. 10) to pass over a person entitled as an administrator to him.
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.
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.