PROBATE

I. Preliminary issues to be considered (with or without a Will)

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. 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. A Grant of Representation acts as evidence of a person's right to deal with the estate of the deceased.

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. For example, a deceased might have property in a foreign country. Another example is that a deceased, who is not a Hong Kong resident, leaves property in Hong Kong . Generally speaking, the following rules may provide a reference answer:

• Succession to "immovable property" (e.g. flat, building, land) is governed by the law of the place where the property is located. For example, if you (as a Hong Kong resident) own a flat in England, that flat will usually be governed by the succession law of England after your death.
• Succession to "movable property" (e.g. money, company shares, personal belongings) is governed by the law of the deceased's place of domicile as at the date of death. For example, the movable property of a deceased who is a resident of the United States is usually governed by the succession law of the United States, no mater where such property is located.

2. What are the differences between an estate with a Will and an estate without a Will (in relation to the Grant of Representation)?

A "Grant of Representation" is the collective term for a "Grant of Probate" or a "Grant of Letters of Administration".

A Grant of Probate is a Grant given to the executor (or executrix, in case of a female) named in the last Will of the deceased person. Whilst a Grant of Letters of Administration is a Grant given to an administrator who is the next-of-kin (e.g. the deceased's spouse, child or parent, etc.) where there is no Will, or where no executor has been appointed in the Will.

A "Personal Representative" is a general term for either an executor or an administrator. This Personal Representative has the authority to deal with the deceased's estate, such as to manage and distribute the relevant assets to the beneficiaries.

With a Will

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. If the executor does not wish to take up the appointment, or if no executor appointed by the deceased survives, then the person entitled to the residuary legacy in the Will has priority to apply for a Grant of Letters of Administration (with the relevant Will annexed). 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).

Without a Will

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 rule 21 of the Non-Contentious Probate Rules (Cap. 10A of the Laws of Hong Kong), the order of priority is as follows:

1. the surviving spouse or the surviving partner or partners to a union of concubinage (e.g. the second wife (and the third….) taken during the life of the first wife) entered into before 7 October 1971;
2. the children of the deceased including any children born of a union of concubinage entered into before 7 October 1971, or the issue of any such child who has died during the lifetime of the deceased;
3. the father or mother of the deceased;
4. the brothers and sisters of the deceased or the "issue" of any deceased brother or sister of the deceased who has died during the lifetime of the deceased.

(Note: "Issue" has a special meaning in the succession law which is different from the daily usage. It means any descendants of a person.)

The maximum number of administrators (or adminstratrix in case of a female) of an estate is four . When there is a dispute between persons entitled to a Grant in the same degree (i.e. they are all equally entitled to apply for the Grant), an application has to be made to the High Court to determine who will be appointed as administrators.

The High Court also has the power to appoint a person who is not in the above hierarchy to administer the estate. 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.

One major difference between an executor and an administrator

Although the powers of an executor and an administrator are almost the same, there is one major difference. The power of an executor stems directly from the Will. Therefore, his/her authority and duty as an executor starts from the very moment the testator (the "Will-maker") dies.

An administrator, on the other hand, receives the relevant powers from the Grant of Letters of Administration. Therefore, his/her power to act starts from the date of the Grant but not from the date of the death of the deceased.

IV. Revocation of Wills

Usually a person has to take action to revoke his/her own Will. For example, this might be done by making a new Will or tearing the existing Will into pieces. A circumstance that is often overlooked is the revocation of a Will by the normal operation of law due to a subsequent marriage (a marriage that occurred after the Will was made).

A marriage subsequent to the execution of a Will automatically revokes the Will unless it is proved that the Will was drafted in contemplation of that marriage. For example, a clause is inserted in the Will stating that the subsequent marriage with a named person shall not revoke the Will.

On the other hand, it should be noted that a divorce subsequent to the making of a Will does not automatically revoke that Will. 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.

Republication & Revival

Republication: Republication is a legal process that reaffirms an unrevoked will. This can be achieved by re-executing the will or by referencing the will in a later codicil.

Revival: If a will has been fully or partially revoked, it may be revived by either re-executing the original will or by executing a codicil that clearly demonstrates an intention to revive the will.  Please see s. 17 of the Wills Ordinance (Cap. 30).

II. Making a Will

1. What are the requirements for a valid will?

Formalities

The legal requirements are provided in s.5(1) of Wills Ordinance (Cap. 30):

1. It must be typewritten, handwritten or in any form of printing;
2. It must have the testator’s signature (e.g. inked thumbprint, initials, stamped signature, mark of any shape, a name) or by some other person in his presence and by his direction;
3. The testator must intend to give effect to the will by his signature;
4. The testator’s signature or acknowledgment of his signature must be witnessed by at least two people at the same time; and
5. each witness either (i) attests and signs the will; or (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness). While no form of attestation is required, it is usually advisable to insert an attestation clause in the will.

The will can be written in any languages.

Intention and Capacity

For a will to be valid, a testator needs to show two things: 

1. his intention that the will takes effect upon his death; and
2. his capacity when he made the will.

A testator can normally show his intention by:

1. starting the will with the words “This is the Last Will and Testament of [the testator’s name]”; or
2. hiring a solicitor to make the will.

If you are i) blind or ii) unable to read or write or iii) have authorised someone else to sign the will on your behalf, you need to show that you knew and approved the content of the will at the time of signing.  One way to show it is to have someone read the will to you and have at least two witnesses witness the process. Also, your will should contain a statement confirming that:

1. the document was read to you in the joint presence of all witnesses;
2. you appeared to comprehend and fully approve its contents; and
3. the witnesses signed the will to acknowledge that this was your last will and confirm their capacity as witnesses in your presence at your request.

A testator can normally show his capacity if: 

1. he is 18 years old or above when he signs the will; and
2. he has the mental capacity to know and agree to the content when he signs the will.

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. 

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. Proving this can be extremely difficult. 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. A consultation with a solicitor is advised in these circumstances.

A will may be challenged if it was executed as a result to fraud or undue influence.

The Court may find that the will was invalid on the ground of undue influence if a testator was coerced into executing a will to which he does not desire because of one’s (1) pressure amounting to compulsion of the will of the testator, and (2) the conduct in exerting the pressure is illegitimate. For instance, the testator executed the will under threats. 

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.

Where the testator executed a will that he did not know or approve because of one’s deceptive behaviour, the Court may find that the will was invalid on the ground of fraud.  For instance, false representation was made to the testator and relied by the testator to execute the will, clauses were inserted in the will before it is signed without the testator’s knowledge.

2. What other matters should be considered before making a Will?

Although the following ten points are not an exhaustive list of matters to be considered when making Wills, they can be treated as a good starting point:

i) Domicile (place and right of abode)

Your domicile as at the date of death can have implications on the disposition of estate in your 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. 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. Unless you specify to adopt a domicile of choice, your domicile will usually be the domicile you acquired at birth from your father, rather than the place of your birth.

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. 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.

ii) The Executor(s) of your Will

1. Executor(s) are the people whom you wish to appoint to be responsible for administering your estate. According to section 39 of the Probate and Administration Ordinance, the executor must be over 21 years old at the time of administering the deceased's estate. Instead of individuals, you may also consider appointing a trust corporation to act as Executor(s).
2. You should consult with the executor(s) to determine whether he or she is willing to accept this role.
3. If you choose your spouse to be the only executor/executrix, you must take into account the possibility that you both may unfortunately die in the same accident.
4. You may name two or more persons (up to a maximum of four) to act as your executors. If so appointed, they must do everything in relation to your Will together.

iii) Survivorship Clause

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.

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. This type of gift is known as a substitute gift.

This clause gives a testator control on the ultimate destination of his estate. Without the clause, even if the spouse of the testator:

1. outlives him for only a short period, or
2. presumed to have died after the testator by the operation of the commorientes rule (i.e. where the couple died and it is impossible to determine which spouse died first, the younger spouse is presumed to have died later), the spouse will be presumed to have outlived the testator and be eligible to inherit the estate of the testator.

iv) Funeral Arrangements

Traditionally, declarations for funeral arrangements/burial/cremation are included in Wills. There is however a risk that if the Will cannot be located immediately, these wishes might be overlooked as a result.

v) Personal Effects (personal belongings)

Most often, you will leave your personal belongings to your spouse. 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.

vi) Legacies

You may wish to make specific gifts of money, shares, or real estate to certain persons or charities. 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.

vii) Distribution of your Estate

Age of Distribution: If any beneficiary of an estate is under the age of 18, the executor must hold the child’s share in trust (to keep the relevant assets properly on behalf of this child). Some parents also state in their Wills that a child should not receive his or her inheritance at the age of 18, but at a later age such as 21 or 25, when it is more likely that the child will be mature enough to manage his or her inheritance. 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.

viii) Common Disaster Clause (in relation to married couples)

Most married couples choose to deal with common disaster in their Wills because it is probable that such an event could occur, given that married couples do often travel together. 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. In other words, the estate of the elder deceased will pass to the younger deceased, which will then be further dealt with according to legal regulations.

ix) Persons under Disability

When making a Will, it is advisable for special trust provisions to be arranged for a beneficiary who is a disabled. For example, a trustee or a guardian may be appointed to monitor the assets inherited by the disabled.

x) Guardianship of Minor Children

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. The guardian cannot however displace the rights of a surviving legal parent.

xi) Obligations to Maintain Others

This will be discussed under the heading of "Free Testamentary Capacity".

1. 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.
2. 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. This type of gift is known as a substitute gift.
3. This clause gives a testator control on the ultimate destination of his estate. Without the clause, even if the spouse of the testator: (i) outlives him for only a short period, or (ii) presumed to have died after the testator by the operation of the commorientes rule (i.e. where the couple died and it is impossible to determine which spouse died first, the younger spouse is presumed to have died later), the spouse will be presumed to have outlived the testator and be eligible to inherit the estate of the testator.

3. I have lost all my love and affection for my wife. I plan to leave nothing to her without even mentioning her name in my Will. Can I do that?

Generally speaking, every person has "free testamentary capacity". That means people can, by Will, leave their assets to whomever they wish.

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.

For example, if you were to declare that all your estate goes to your parents, or a charity, without leaving even one dollar to your wife or minor children, such an intention may not be achieved after your death. Your wife and your children could apply to the Court for provisions to be made for them from your estate. In other words, they may be entitled to get a reasonable amount from your estate in order to maintain their living. This is governed by section 3, section 4 and section 5 of the Inheritance (Provision for Family and Dependants) Ordinance.

In theory, the scope of the Inheritance (Provision for Family and Dependants) Ordinance also covers the case of a person who died intestate (without leaving a Will). 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.

7. Abolition of Estate Duty and the procedures for applying for a Grant of Representation

A brief history of the Estate Duty

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. 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. Simply speaking, the estate duty payable is a percentage of the value of the estate. If you want to know the previous rates of Estate Duty (from 1 April 1996 to 10 February 2006), please visit the Inland Revenue Department's webpage.

Abolition of the Estate Duty

There are three stages in relation to the implementation of the abolition of estate duty.

For deaths before 15 th July 2005 , estate duty remains payable. The applicant for a Grant of Probate or Letters of Administration ("the Applicant") should follow the old practice to obtain estate duty clearance before lodging an application to the High Court for a Grant of Representation.

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. Even if the total value of the estate exceeds $7,500,000, only a $100 nominal estate duty will be charged.

For deaths on or after 11th February 2006, the Applicant should follow the new procedure and arrangement which will be described in Procedures.

(Note: For an application for a Grant of Probate, the deceased should have made a Will. Whilst for a Grant of Letters of Administration, there should be no Will, or no executor has been appointed in the Will. Please go to the relevant question and answer to refresh your memory.)

2. Procedures

Documents in support of the application (for a Grant of Probate):

• The death certificate of the deceased (please refer to the Immigration Department's webpage for details of death registration);
• The original Will of the deceased, plus one copy;
• A certificate that shows the relationship of the applicant to the deceased where this relationship is clearly expressed in the Will, e.g. a spouse will lodge a marriage certificate, and a son or daughter will lodge a birth certificate. If the Will identifies the applicant by way of an Identity Document number, present a copy of that Identity Document;
• If none of the above certificate showing the relationship is available, an Affirmation or Affidavit of Identity is required. The affirmation must be executed in the presence of a Commissioner for Oaths by someone who is not related to the applicant and the deceased by blood, marriage or adoption, but who has known the applicant and the deceased well for more than 5 years.

Specified Forms

The Probate Registry has specific forms for use in regard to the above-mentioned documents and procedures. These must be adhered to with such variations or additions as circumstances may require.

Samples of the relevant forms are available upon request at the counter of the Probate Registry at LG3, High Court Building , 38 Queensway, Hong Kong . They can also be downloaded from the Judiciary website.

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).

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

With effect from 1st April 2007, under the delegated authority from the Secretary for Home and Youth Affairs, the Director of Home Affairs takes over from the Commissioner of Inland Revenue the provision of various services for estate beneficiaries through the establishment of an "Estate Beneficiaries Support Unit".

If the value of the estate does not exceed $50,000 and the estate consisted wholly of money, the person who is entitled to apply for the Grant of Probate or Letters of Administration ("the Applicant") can apply for the issue of a confirmation notice from the Home Affairs Department.

The applicant must submit the application to the Estate Beneficiaries Support Unit at 3/F, Southorn Centre, 130 Hennessy Road, Wan Chai, Hong Kong with the following documents:-

1. an application form (HAEU5);
2. an affirmation/affidavit (Form HAEU5-A) which declares that the total value of all properties beneficially owned by the deceased does not exceed $50,000 and the estate is wholly made up of money; and
3. a Schedule of Money of the deceased person in Hong Kong as at the date of death in duplicate (Form HAEU5-S) which sets out the details of the estate.

The following supporting documents (originals and photocopies) must also be submitted:

1. the identity card/passport of the deceased person;
2. the death certificate of the deceased person;
3. the identity card/passport of the applicant;
4. the last will of the deceased person, if any;
5. any document(s) evidencing the relationship between the deceased person and the applicant, e.g. marriage or birth certificate, if the applicant is not the executor of the deceased person;
6. the letter(s) of renunciation duly executed by the person(s) entitled in higher priority to administer the estate, if applicable;
7. the death certificate(s) of the person(s) entitled in higher priority to administer the estate, if applicable;
8. any document(s) evidencing the relationship between person(s) named under (f) and/or (g) and the deceased person, if applicable; and
9. fixed deposit receipt(s)/bank statement(s)/bank passbook(s) in respect of all bank account(s) of the deceased person, showing the bank account balance as at the date of death of the deceased person and those for the last three months before death.

If the affirmation/affidavit is in order, the Director of Home Affairs (under authority delegated by the Secretary for Home and Youth Affairs) will issue a confirmation notice within 12 working days.

The applicant shall then visit the Estate Beneficiaries Support Unit at a scheduled time slot to swear/affirm in an affidavit as to the truthfulness and correctness of the affidavit and the schedule exhibited by the affidavit and collect the confirmation notice and a duplicate copy of the Schedule of Money.

The holder of the confirmation notice will be exempted from the intermeddling provisions and deal with the estates without any grant.

If the banks agree to release the balance in the accounts to the Applicant upon issuance of the confirmation notice, it will not be necessary for the Applicant to proceed further with an application to the Probate Registry either for summary administration or for a Grant of Probate/Letters of Administration. Please note that the banks have the discretion to decide whether to release the balance in the bank accounts stated in the schedule annexed to the confirmation notice.

If more assets are found later resulting in the value of the estate exceeding $50,000, the Applicant should notify the Director of Home Affairs and, if a confirmation notice has been issued, return it for cancellation.  Then, the applicant should follow the application procedure for summary administration or a Grant of Probate/ Letters of Administration (as the case may be).

Details of the application procedure can be viewed from the website of the Home Affairs Department (Estate Beneficiaries Support Services).

2. If the applicant subsequently finds more assets of the deceased after submitting the documents to the Probate Registry, what should he/she do?

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).

For cases where a Grant has already been obtained, the original Grant should be delivered, along with the Corrective Affirmation/Affidavit verifying the Additional Schedule of Assets and Liabilities (After Grant), to the Probate Registry.

The specified forms can be found in the Judiciary's website.

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

For small estates not exceeding $150,000, and consisting only of bank accounts and/or Mandatory Provident Fund money, the Public Application Section of the Probate Registry can normally help the Applicant to summarily administer (in a simple way) the estate without a Grant of Representation. However, the Applicant(s) must be over 21 years of age.

2. Searching for a Will and gaining access to the deceased's safe deposit box in a bank

Whether or not a Will is left by the deceased would affect the application procedure for the Grant of Representation. 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). Their duties include: checking all the personal documents of the deceased, asking the relatives and friends, and enquiring with the deceased's financial or legal advisers.

If the intended executor/administrator has retained a solicitor to obtain the Grant of Probate or Letters of Administration, the solicitor can conduct a Will Search through the Law Society of Hong Kong to find out whether or not the deceased has executed a Will through other solicitors in Hong Kong .

However, the Will Search is not conclusive since the deceased might have made a homemade Will. Most often, the deceased might have put his/her Will in a safe deposit box in a bank. Therefore, another starting point for searching for a Will is to check the deceased's safe deposit box.

1. How to get access to the deceased's safe deposit box in a bank?

Applying for a "Certificate for Inspection"

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.

Either the executor under the Will, the intended administrator having priority to take out a Grant of Letters of Administration, or a surviving renter of the safe deposit box will need to apply for a "Certificate for Necessity of Inspection of Bank Deposit Box" (certificate for inspection) from the Home Affairs Department. For more information regarding the application procedure, please refer to the website of the Home Affairs Department.

On issue of the certificate of inspection, the holder of the certificate for inspection ("the Holder") will need to make an appointment with the Secretary for Home Affairs for the inspection of the deceased's safe deposit box. Such inspection must be carried out in the presence of a bank staff member and two public officers authorized by the Secretary for Home Affairs.

If the safe deposit box is rented jointly with another renter, the surviving renter (if he/she is not the Holder) will need to be present at the inspection. 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.

Taking inventory

The inventory will be prepared by the Holder, with assistance from the public officers whenever necessary. The inventory will be verified by the public officers present at the inspection, and a copy of the inventory will be kept by the bank concerned and the Secretary for Home Affairs for a period of six years. The original inventory will be kept by the Holder.

If a Will is found in the safe deposit box and: i) the Holder is not the executor named in the Will, or ii) there is no executor appointed in the Will and the Holder is not the surviving renter, the Holder is not permitted to remove the Will or prepare the inventory. The safe box will then be closed or sealed immediately by the bank staff after a copy of the Will is made and handed over to the public officers present. The copy of the Will will be kept by the Secretary for Home Affairs for six years.

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

Solely rented safe deposit box

After the taking of inventory, any removal of documents from the box before a Grant of Representation must be authorised by the Home Affairs Department (details can be found on the website of the Home Affairs Department - Estate Beneficiaries Support Unit) . 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. Documents and articles of value will not generally be permitted to be removed.

Jointly rented safe deposit box

If the jointly rented safe deposit box has a survivorship agreement with the bank, after the inventory has been prepared, the surviving renter (if he is the executor/administrator or has obtained the written consent of that executor/administrator) can apply to the Home Affairs Department for authorisation to remove the contents of the safe deposit box. 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.

3. How to collect and to take inventory of the deceased's personal belongings if they are not kept inside the deceased's safe deposit box at the bank?

It is for the executor named in the Will or the intended administrator to take that inventory. The way to take inventory is to physically search and ascertain those personal belongings of the deceased. That inventory will then be filed in the Schedule of assets and liabilities with the Probate Registry.

VII. Inheritance (Provision for Families and Dependants) Ordinance

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. Absent will, the estate will be distributed by the laws of intestacy as discussed. In certain circumstances, however, the Court may intervene under the captioned ordinance when families or dependents of the deceased contend that they should be given a share (if not provided under the will or intestacy) or a larger share than the share that they are now given under will or intestacy.

Applicability

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.

In other words, even if the deceased leaves behind substantial assets in Hong Kong, the captioned ordinance remains inapplicable if the above domicile/residence requirement is not satisfied.

Who may apply?

Most typically, applicants are either the spouse of the deceased or infant or disabled child of the deceased where the deceased (1) did not want to pay maintenance to divorce his/her spouse and decided to disinherit the spouse by will instead; or (2) tried to disinherit his/her children born out of his/her previous marriage for the benefit of his/her later marriage.

The possible scope of applicants is much wider though. Any person who, immediately before the death of the deceased, was being maintained either wholly or substantially by the deceased may apply. This includes ex-spouse, lover, adult child, godchild or even parents and siblings who were so maintained before the deceased’s demise.

What does the Court consider?

1. The financial resources of the estate;
2. The current and future financial resources and needs of the applicant(s) and of the beneficiaries;
3. The obligations and responsibility that the deceased had toward the applicant(s) and the beneficiaries;
4. Disability, if any, of the applicant(s) and of the beneficiaries;
5. Conducts of the applicant and other persons (e.g. deceased and beneficiaries) that the Court consider relevant; and
6. If the applicant is the spouse, the Court would consider the application more or less like an application for ancillary relief under divorce (i.e. maintenance).

What order that the Court may make?

It may be order for periodic payment, lump sum or order for transfer of property.

When to apply?

Within 6 months after grant of representation. This is a very rigid deadline. Late application will not be entertained at all unless with exceptional reasons.

11. The allocation of estate has been clearly set out in a Will. Can this prevent all the disputes which may come out during the distribution process?

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). Even if the intention of the testator is clearly stated in the Will, it may still be challenged.

For example, someone who could be a beneficiary under intestacy, or who is not satisfied with his share of the estate under the deceased's Will, could claim that the Will is invalid on the basis that the deceased did not have the mental capacity to make the Will, or was unduly influenced by a third party in making the Will. Any aggrieved party may bring legal action against the executor to contest the validity of the deceased's Will.

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. 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. 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. For more details on the matter, please refer to the relevant question and answer.

To a lesser extent, other practical difficulties may arise. An old lady stated in her Will that her diamond necklace is to be left to her granddaughter. This necklace could not be found in the old lady's home or safe deposit box after her death. Usually the executor is a member of the family or a close and trusted friend of the whole family. How can this executor balance his/her duty to make the requisite inquiries on behalf of the granddaughter and yet maintain a harmonious relationship with the deceased's other family members?

An executor who does not wish to prove the Will personally for whatever reason (e.g. awkward family relationships or time constraints), could appoint a Hong Kong registered trust company to take out a Grant of Representation on his/her behalf, subject to the consent of the beneficiaries of the Will.

2. If the deceased made no Will, how can the relevant estate be distributed?

The order of priority under the law relating to the entitlement of the deceased's estate is similar to the order relating to the eligibility to apply for a Grant of Letters of Administration (please refer to the relevant question and answer).

In reality, it often happens that 2 or more parties who are entitled to the assets survive and may claim the deceased's estate together. The followings are some of the usual scenarios. For details, please refer to section 4 of the Intestates' Estates Ordinance.

(A) The deceased only leaves a spouse

If the deceased leaves a spouse, but leaves no issue, parent, brother or sister of the whole blood (the same parents), or issue of a brother or sister of the whole blood, then the surviving husband or wife is absolutely entitled to the residuary estate (i.e. the whole sum after deduction of the deceased's debts, taxes, funeral, legal and administration expenses from the estate).

(Note: "Issue" has a special meaning in the succession law which is different from the daily usage. It means any descendants of a person.)

(B) The deceased leaves a spouse and issue

If the deceased leaves a spouse and issue, whether or not survived by his/her parents or siblings, the surviving spouse could take the following first:

1. all of the deceased's personal chattels;
2. a sum of $500,000 from the residuary estate.

After the aforesaid $500,000 is paid out, if there is any remaining sum, it would be divided in half. One half will be distributed to the surviving spouse and the other half will be divided equally amongst the child/children of the deceased.

(C) The deceased leaves a spouse, parents and siblings, but no issue

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.

Only if the deceased has no issue can the parents and siblings have a share in the deceased's estate, even if his/her spouse survives . The surviving spouse could take the following first:

1. all of the deceased's personal chattels;
2. a sum of $1,000,000 from the residuary estate.

After the aforesaid $1,000,000 is paid out, if there is any remaining sum, it would be divided in half. One half will be distributed to the surviving spouse and the other half will be distributed to the surviving parent(s).

On the other hand, if one or both parents survive, the siblings cannot obtain a share of the deceased’s estate. They will only be entitled to part of the estate (after deduction of the spouse's entitlement) if the deceased leaves no issue and no parents.

(D) The deceased leaves issue, but no spouse

If the deceased has issue but no surviving spouse, the residuary estate will be distributed to the issue in accordance with the following rules:

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.

However, if a child has predeceased the deceased and leaves behind child(ren) of his/her own, the child(ren) of that predeceased child will take up the share that would have been given to that predeceased child (if more than one, divided on an equal basis).

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.

(E) The share of "illegitimate children"

An illegitimate child means a child whose natural parents are not married in a manner that the laws of Hong Kong recognize. For details of legal marriage, please go to the topic of "Matrimonial Matters".

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). Illegitimate children could succeed to their mother’s estate on her intestacy, but only when there were no surviving legitimate 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.

However, this position has been changed by the Parent and Child Ordinance. Illegitimate children can now enjoy the same succession rights as legitimate ones if their parents die after 19 th June 1993 .

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. In other words, they shall be treated as the children of the adopter but not the children of any other persons.

For more information regarding the distribution of estate, please go to the "case illustration".

5. How does one avoid intermeddling of the estate (handling the estate without permission) after abolition of the Estate Duty?

Before the abolition of estate duty, as the Applicant needs to obtain estate duty clearance before filing the application for a Grant with the Probate Registry, the Inland Revenue Department acted as the gate keeper to prevent possible intermeddling of the deceased's estate.

After the abolition of estate duty, provisions have been made in the laws of Hong Kong to safeguard against intermeddling of an estate. These provisions will be similar to those used in the estate duty era:

• Intermeddling of the deceased's estate is an offence;
• A person would be liable to a fine of $10,000 plus and additional penalty equal to the value of the assets intermeddled if:
  that person intermeddles the estate or the income therefrom and either fails to file an application for summary administration (for cases where the value of the estate does not exceed $150,000) or fails to file an application for a Grant of Probate or Letters of Administration within 12 months from the death of the deceased; OR that person intermeddles with the estate after the 12-month's period without a Grant of Probate or Letters of Administration or summary administration.

For more information on this matter, you can go to the Home Affairs Bureau's webpage.

1. The advantages of making a Will

Any person over the age of 18 may make a Will. A Will is a document which sets out how a person's assets are to be distributed after his or her death. The person making the Will is called the "testator"(if male) or "testatrix"(if female). Therefore, if a person leaves a Will after the death, he or she is said to have died "testate". For those without a Will, they are called "intestate".

If a person makes a Will, he/she can:

1. arrange how his/her assets will be shared amongst relatives other than according to the law of intestate;
2. leave assets to beneficiaries who are not related to him/her, e.g. friends and charities;
3. appoint executor(s) (number of executors not to exceed FOUR) to manage and distribute the assets.

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. This is discussed in the section "Distribution of estate to the relevant parties".

Q1. When making a Will, if the testator only discussed the content of the Will with the lawyer over the phone, but never actually signed any Will, is there a valid Will in place?

Unless you are a person with privileged status (e.g. a soldier on actual military service, or a sailor), you cannot make an oral will. Therefore, in the above circumstances, there is no valid will.

1. What different types of legacies are there?

Specific legacies

It is a gift of something the testator owns at the date he makes his will. The testator must specifically identify or describe the gift in his will. He must own the specific gift at the time of his death in order to pass the gift to the designated beneficiary. Such gifts are usually introduced by the word “my”, e.g. “all my shares in HSBC” or “my apartment: No 2 Sky Towers”.

General legacies

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 does not necessarily own a general gift at the date of death. E.g. “HK$1,000 to my daughter Jane”; “500 shares in HSBC to Jason”.

Note the different effects produced by the following clauses:

• “I give 500 shares in HSBC to Jason”: This is a general gift. If I do not own 500 shares in HSBC at the time of death, my personal representative will need to buy 500 shares in HSBC for Jason.
• “I give my shares in HSBC to Jason”: My personal representative will only distribute the HSBC shares that I own to Jason and will not need to buy any new shares. This is a specific gift, but it may fail for uncertainty.  It is better to specify the amount of the shares.

Pecuniary legacies

It is a gift of a stated amount of money to a beneficiary. E.g. “HK$1,000 to my daughter Ruby”.

Demonstrative legacies

1. A gift in a will that is not a gift of a specified asset in the testator’s estate, but instead designates a specific amount or quantity to be paid from a specified source. For instance, “I give to my sister HKD100 from my savings account with Y bank”.
2. A demonstrative legacy is a general legacy in nature, but it is directed to be fulfilled from a specified fund or a particular part of the testator’s estate.

Residuary legacies

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.

Class legacies

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. Such a gift is intended for a group of beneficiaries rather than for individual recipient(s). g. “To my children”, but not “To my children, Peter and Wing”.

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

Particular Beneficiaries (Minors, Children, Spouses, Executors, Employees & Charities etc)

Minors

Minors cannot issue a valid receipt to personal representatives. A valid receipt releases personal representatives from their duty to distribute estate. Therefore, wills typically grant personal representatives the power to obtain a receipt from the minor’s parent or guardian.

Children

Without any contrary intention in the will, the term “child” or “children” are typically interpreted to include both adopted children and illegitimate children (i.e. children who are born to parents who are not married to each other). However, if the testator intends to benefit natural and legitimate children only, they must clearly express this in the will. Also, stepchildren are not automatically included and must be specifically provided for in the will.

Spouses

A testator may choose to give their spouse either an absolute gift or a life interest in his 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. Please refer to the section about “Survivorship Clause”.

Executors

Unless the executor is a professional executor, serving as an executor is an unpaid position.  Therefore, a testator must specify in the will if he wishes to leave the executor a legacy for taking up the role.  In that case, a testator must also specify the conditions in which the executor will receive the legacy, e.g. Will the executor only receive the legacy after he has obtained probate and administered the estate?

Employees

The testator should specify whether the employee will only receive the legacy if the employee is still in the testator's employment at the date of death.

Charities

The testator must check and confirm the name, address and the charitable status of the charity. 

If a gift is given to an unincorporated association, all members of that association receive that gift.  Therefore, a receipt must be obtained from each member.  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.

3. What precautions should be taken when drafting a Will?

i) Construing the Will

Two general assumptions are typically made by the Court when interpreting a will, unless they are successfully challenged or rebutted: i) ordinary meaning is to be given to ordinary words; and ii) technical meaning is to be given to technical words.

ii) Admissibility of extrinsic evidence

S.23B of Wills Ordinance (Cap. 30) provides that extrinsic evidence relevant to a testator’s intention may be admitted to assist the Court’s interpretation of the will under the following circumstances:-

1. in so far as any part of it is meaningless;
2. in so far as the language used in any part of it is ambiguous on the face of it; and
3. in so far as evidence, other than evidence of the testator’s intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances.

iii) Rectification of Wills

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.

An application shall be made within 6 months since the first grant of representation, otherwise, leave of the Court must be obtained.

iv) Incorporation by reference (of separate independent document to form part of the Will) 

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.

The document must be: 

1. clearly identified in the will;
2. in existence at the date of the will; and
3. referred to in the will as being in existence.

4. FAQ

1. What is the difference between a will and a "平安紙"? 

"平安紙" is a term commonly used to refer to a will.  However, the label does not determine the legal effect of a document.  If the "平安紙" complies with s.5 of the Wills Ordinance (Cap. 30), it is a will in nature.  Otherwise, it is not a will.

2. I am very afraid that my will will not be executed according to my wishes. What can I do to guarantee the due execution of my will after my death?

A valid will will be duly executed upon the testator’s death.

Therefore, you should ensure the validity of your will.

A valid will:

1. Complies substantially with the formal requirements under s. 5 of Wills Ordinance (Cap. 30);
2. shows a testator’s unequivocal intention to make a will; and
3. shows a testator’s mental competence in giving instructions for the preparation and execution of the will.

To ensure due compliance of the relevant requirements, you may consider instructing a solicitor to arrange for the preparation and the execution of your will.

You may also appoint a trusted person to be the executor or an independent professional executor especially if the size of the estate justifies the associated professional fees.

Please refer to the section about the “Capacity of an executor” for appointing a trusted person to be the executor.

4. Can the testator have more than one Will at the same time? 

Yes. It is possible to make a second will to stand cumulatively with the first will (assuming the contents therein are not inconsistent). 

However, an issue may arise in relation to whether a later will was intended by the testator to supersede an earlier will. A will is revoked by a later will which contains an express revocation clause under s.13(1) of the Wills Ordinance (Cap. 30).  The question becomes whether or not the will contains a revocation clause.  It depends on the words used in the wills and their interpretation. 

If a later will does not contain an express revocation clause, but the content therein is inconsistent with an earlier will, the later will is presumed to have revoked an earlier will, either wholly or in part.

Complications arise where there is no express revocation clause but the will refers to “my old/ previous/ former/ replaced/ cancelled will“. Such phrases should be avoided if the later will is not intended to revoke the earlier will.

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

Yes, but grant of probate may be an issue.

If the will only deals with the disposition of overseas property, the Court of Hong Kong will refuse grant of probate.  As a result, the will cannot be executed or administered in Hong Kong.

6. Can the testator make one Will to deal with Hong Kong property and another Will to deal with overseas property?

Yes, but execution and administration may be an issue because probate of the will which deals with the property in Hong Kong may only be obtained if:

1. an affidavit is filed to verify the will; and
2. an attested copy of the will which deals with the overseas property is annexed to the affidavit.

7. Can a bankrupt be appointed as an executor/administrator?

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.

8. Can I write my own will without the help of lawyers?

Yes, but you have to ensure the compliance of formality.

9. What happens to a will that does not follow the legal requirement?

If a will complies substantially with the formal requirements under s. 5 of Wills Ordinance (Cap. 30), it will still be held as valid.

However, if the will is held as invalid, the Court will inquire if there is a prior and valid will. 

If the answer is yes, that will become the last valid and subsisting will of the deceased.

If the answer is no, the deceased will die intestate.  The Intestates’ Estates Ordinance (Cap. 73) applies.

III. Alterations to Wills

1. What are the ways that I can amend my will?

Alteration of a will after execution is governed by s.16(2) of the Wills Ordinance (Cap. 30).  Alterations made to a will after it has been signed can be validly effected where the testator and two witnesses sign in the margin, or some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referencing the alteration at the end of some other part of the will.

2. What is a Codicil?

A will can also be amended by executing a codicil. A codicil is a legal document that supplements a will. It is typically used when a testator wishes to make minor changes to their existing will by adding, amending, or revoking part of it. Although a codicil is executed in the same way as a will, it must explicitly reference the originl will to which it supplements.  A codicil is defined as part of a will in s.2 of Wills Ordinance (Cap. 30).

V. Obtaining Grant of Probate (Death with a Will) v.s. Obtaining Grant of Letters of Administration (Death without a Will, i.e. Intestate)

3. Grant of Probate

1. Eligibility

Order of priority

R. 19 of Non-Contentious Probate Rules (Cap. 10A) provides for the order of priority as follows:

(i) the executor;

(ii) any residuary legatee or devisee holding in trust for any other person;

(iii) any residuary legatee or devisee for life;

(iv) the ultimate residuary legatee or devisee

or,

where the residue is not wholly disposed of by the will, any person entitled to share in the residue

or,

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);

(v) any specific legatee or devisee

or

any creditor

or,

the personal representative of any such person subject to r.25(3) of Non-Contentious Probate Rules (Cap. 10A)

or,

where the estate is not wholly disposed of by the will, any person who does not have an immediate beneficial interest in the estate, but may have a beneficial interest in the event of an accretion of the estate;(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 but who would have been entitled to a grant if the deceased had died wholly intestate.

Number

S.25 of the Probate and Administration Ordinance (Cap. 10) governs the number of grantees to be allowed. Probate shall not be granted to more than four persons.

Capacity

A person will not be appointed as an executor if he: 

1. is under 21 years old;
2. suffers from mental/ severe physical disability to the extent that renders him incapable of managing his own affairs (see r. 33 of Non-Contentious Probate Rules (Cap. 10A)); or
3. in prison.

The Court generally views that an insolvent person is unsuitable to be appointed an executor.

1. The executor is missing or refuses to take up the appointment. Can another person apply for a Grant? What does he need to do?

Yes, if the person has an interest in a deceased’s estate.

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).  The executor will then be required to accept or renounce his executorship.

You should lodge a draft citation to the Registrar. R.45 of the Non-Contentious Probate Rules (Cap. 10A) provides for the formal requirement of the citation.

If the executor is missing, depending on the circumstances, you may call upon the executor to :

• accept or refuse probate using Form C2.2. The relevant provision is 46(1) of the Non-Contentious Probate Rules (Cap. 10A) ;
• take probate or to take a grant using Form C2.2. The relevant provision is under 46(3) of the Non-Contentious Probate Rules (Cap. 10A)) ; or
• propound a will and use Forms C.2.1 and C2.2 with necessary modifications.

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 should also lodge a draft affidavit for the Registrar’s approval.

After the draft citation and the draft affidavit are approved, you should:-

• file and personally serve on the executor i) the citation; and ii) the sworn affidavit and
• enter a caveat if it has not been previously entered. The relevant provision is 45(3) of the Non-Contentious Probate Rules (Cap. 10A);

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.  The relevant provisions are r.46(7)(a) and (c) of the Non-Contentious Probate Rules (Cap. 10A).

If the executor fails to appear or propound a will within the time limit, you may apply by motion for an order for a grant as if the will were invalid. The relevant provision is r.47 of the Non-Contentious Probate Rules (Cap. 10A)). In such a case, the Judge may make an order for a grant contrary to the terms in the will.

2. If the executor resides out of Hong Kong and refuses to assume the office, how can he renounce the right to probate?

The procedure is provided in s.29 of Probate and Administration Ordinance (Cap. 10).  He can either:

Renounce orally on the hearing of any petition or probate action by counsel on his behalf; or

in writing signed by him and attested by a solicitor or by any person before whom an affidavit may be sworn. (Renunciation of Probate should use Form No W2.1 and of Administration with the Will annexed, Form No W2.2; renunciation of letters of Administration should use Form L2.1)

1. Can probate be applied for if the Will is lost and there are no available copies of the Will?

Where the will is lost and there are no available copies of the will, an application 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). The Court may direct that the application be made on summons to the Registrar or judge or to the court on motion: r.60 of Non-Contentious Probate Rules (Cap. 10A).

The party propounding the will bears the burden to rebut the default presumption that the will was revoked by destruction by the deceased in his lifetime.

If the will is lost, the grant made is limited until the original or a more authentic copy is proved.

2. Can probate be applied for if the original Will is lost and there is only a copy of the Will? 

Where the original will is lost, mislaid, or not available, and when an applicant is applying to admit a copy, a rebuttable presumption of revocation arises.

In order to have the copy will admitted to probate, an application must be made to the Registrar under r.53 of the Non-Contentious Probate Rules (Cap. 10A). 

An ex parte application must be filed to rebut the presumption.

An applicant who seeks to admit the copy will to proof has the burden of proving that it has not been revoked by adducing evidence of surrounding circumstances, e.g. declaration of unchanged affection or intention to rebut the presumption. The evidence may vary according to the circumstances, including relevant matters like the character of the custody, the character of the testator, his relationship with the beneficiaries under the will and other next of kin since the making of the will up to his death, the contents of the will, and whether he had any cause to revoke it.

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. 

3. If a person (other than the executor) keeps the Will and refuses to give it to the executor, what can the executor do?

Under r. 49(2) of Non-Contentious Probate Rules (Cap. 10A), the executor may make an ex parte application to the Registrar under s.7(3) of Probate and Administration Ordinance (Cap. 10) for the issue of a subpoena to bring in a will.  The application shall be supported by an affidavit setting out the grounds of the application, and if any person served with the subpoena denies that the will is in his possession or control, he may file an affidavit to that effect. It is not a prerequisite to obtain a court order before submitting this application.

5. Letters of Administration (with Will annexed)

1. Eligibility

Order of priority

R.19 of Non-Contentious Probate Rules (Cap. 10A) governs the order of priority of persons entitled to an administration with the will annexed, namely:

(i) the executor;

(ii) any residuary legatee or devisee holding in trust for any other person;

(iii) any residuary legatee or devisee for life;

(iv) the ultimate residuary legatee or devisee

or,

where the residue is not wholly disposed of by the will, any person entitled to share in the residue

or,

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);

(v) any specific legatee or devisee or any creditor or the personal representative of any such person subject to r.25(3) of Non-Contentious Probate Rules (Cap. 10A) or where the estate is not wholly disposed of by the will, any person who does not have an immediate beneficial interest in the estate but who may have a beneficial interest in the event of an accretion to the estate;

(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.

Choice between persons entitled in the same degree

In general, the court makes a grant of letters of administration to the person(s) whom it considers will most effectively administer the estate.

R.25 of Non-Contentious Probate Rules (Cap. 10A) offers some guidance as to how the Court makes a selection between those entitled:

1. A grant may be made to any person entitled without notice to any other persons entitled in the same degree.
2. Any dispute between persons entitled to a grant in the same degree should be resolved by bringing a summons before the Registrar. As a result, the person issuing such summons will enter a caveat, and the Registrar will not allow any grant to be sealed until the dispute is resolved.
3. A living person is preferred to the personal representatives of a deceased person who would, if living, be entitled in the same degree.
4. A person not under disability is preferred to an infant entitled in the same degree.

Number

Administration shall not be granted to more than four persons in respect of the same property.  If there is a minority or if a life interest, administration shall be granted to a trust corporation, with or without an individual, or to not less than two individuals: s.25(1) of Probate and Administration Ordinance (Cap. 10).

Capacity

A person will not be appointed as an administrator if he: 

1. is under 21 years old;
2. suffers from mental/ severe physical disability to the extent that renders him incapable of managing his own affairs (see r. 33 of Non-Contentious Probate Rules (Cap. 10A); or
3. in prison.

The Court generally views that an insolvent person is unsuitable to be appointed an administrator.

2. Procedures

Documents in support of the application (for a Grant of Letters of Administration)

1. A properly executed oath in the appropriate specified form (see below).
2. The death certificate of the deceased
3. The original will and a clean copy will
4. A certificate showing the relationship of the applicant to the deceased (e.g. the marriage certificate of the applicant and the deceased, or the birth certificate(s) of the child(ren) of the deceased, or the birth certificate of the deceased for a parent applicant)
5. A copy of the HKID cards of the deceased and the applicant
6. If applicable, Affidavit of justification for sureties (Form M3.1) and surety's guarantee (Form M3.2)

Specified Forms

• Affirmation/ Affidavit by administrator with will (sole executor has died/ renounced): Form W1.3a/ W1.3b
• Affirmation/ Affidavit by administrator with will (for Grant de bonis non): Form S.3.2a/ S.3.2b. Please refer to the section regarding Grant de bonis non.

Usually no requisition is raised about the proof of the sound mind of the testator if the will was executed before solicitors, clerks or doctors.

However, if the will does not include a proper attestation clause, an affidavit of due execution should be filed (Form W3.1) at the time of the application (see r.10 of Non-Contentious Probate Rules (Cap.10)).

If the will is not engrossed by typewriter or computer, but done in handwriting, an affidavit (Form W3.2) should be filed to inform the Court as to who wrote the will – whether it was the deceased or somebody else on his behalf.

If the situations stipulated in sub-sections (a) to (f) of r.38(1) under Non-Contentious Probate Rules (Cap. 10A) arise, affidavit of justification for sureties (Form M3.1) and surety's guarantee (Form M3.2).

4. Letters of Administration (in case of intestacy)

1. Eligibility

Order of priority / Order of Entitlement

When a deceased died without a will, his next-of-kin who has a beneficial interest in the estate (“next-of-kin with beneficial interests”) shall be entitled to a grant of administration in the order of priority as set out in r.21 of Non-Contentious Probate Rules (Cap. 10A), namely:

1. the surviving spouse or the surviving partner or partners to a union of concubinage entered into before 7 October 1971;
2. the children of the deceased including any children born of a union of concubinage entered into before 7 October 1971, or the issue of any such child who has died during the lifetime of the deceased;
3. parents;
4. siblings or the issue of any deceased siblings of the deceased who has died during the deceased’s lifetime;
5. grandparents; and
6. uncles and aunts of the deceased, or the issue of any deceased uncle or aunt of the deceased who has died during the lifetime of the deceased.

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.

E.g. A has passed away.  A’s wife is alive but refused to apply for Letters of Administration.  A’s only son is ineligible to apply for A’s Letters of Administration until he has proven that A’s wife has waived her right to apply for A’s Letters of Administration.

Without any person having a beneficial interest in the estate, a grant may be made to the Official Administrator. 

Alternatively, a grant may be made to the creditor or to any person who, notwithstanding that he has no immediate beneficial interest in the estate, may have a beneficial interest in the event of an accretion of the estate, or is, by virtue of s.3 of the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481), entitled to apply to the court for an order under s.4 of that Ordinance.

In general, the court makes a grant of letters of administration to the person(s) whom it considers will most effectively administer the estate.

Choice between persons entitled in the same degree

R.25 of Non-Contentious Probate Rules (Cap. 10A) offers some guidance as to how the Court makes a selection between those entitled:-

1. A grant may be made to any person entitled without notice to any other persons entitled in the same degree.
2. Any dispute between persons entitled to a grant in the same degree should be resolved by bringing a summons before the Registrar. As a result, the person issuing such summons shall enter a caveat, and the Registrar will not allow any grant to be sealed until the dispute is resolved.
3. A living person is preferred to the personal representatives of a deceased person who would, if living, be entitled in the same degree.
4. A person not under disability is preferred to an infant entitled in the same degree.

If a personal representative of a spouse is involved,

• Where a spouse is beneficially entitled to only part of estate of the deceased as ascertained at the time of the application for grant with the other next-of-kin, the other living next-of-kin with beneficial interests would be preferred to the personal representative of the spouse.
• Where a spouse is beneficially entitled to the whole estate of the deceased as ascertained at the time of the application for grant, the personal representative of the spouse is preferred to the next-of-kin with beneficial interests.

Number

s.25 of Probate and Administration Ordinance (Cap. 10) governs the number of grantees to be allowed. 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.

Capacity

A person will not be appointed as an administrator if he:

1. is under 21 years old;
2. suffers from mental/ severe physical disability to the extent that renders him incapable of managing his own affairs (see r. 33 of Non-Contentious Probate Rules (Cap. 10A); or
3. in prison.

The Court generally views that an insolvent person is unsuitable to be appointed an administrator.

1. The person entitled to the Letters of Administration in priority is missing or refuses to apply for the Letters of Administration. Can another person apply for it? What does he need to do?

Please refer to the section regarding “Order of priority / Order of Entitlement”.

If he is entitled under r.21 of Non-Contentious Probate Rules (Cap. 10A), he must first clear off all persons entitled to a grant set out in the categories mentioned above.

In the given scenario, he can clear off all person with prior entitlement to a grant by a Citation.

Rr.45 to 48 of Non-Contentious Probate Rules (Cap. 10A) provide for the procedures on the issuance and service of citations and entry of appearance by a person cited as well as the application for an order for a grant upon nonappearance.

He should lodge a draft citation (Form C2.2) to be settled by the Registrar (r.45(1)) as well as a draft affidavit for approval.

After the draft citation and the draft verifying affidavit are approved, he should file the citation together with the properly sworn affidavit and at the same time enter a caveat (if it has not been previously entered).

The citation and verifying affidavit must be personally served (r.45(4)). Other substituted modes of service will only be granted if it is shown that personal service cannot be effected after reasonable attempts have been made.

When the time limited for appearance has expired, if the Citee fails to appear or prosecute his application for a grant with reasonable diligence, he may apply by inter-partes summons returnable to the Registrar for an order for a grant to himself as provided by r.46(7)(a).

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.  He must prove that the potential administrator is clearly unsuitable e.g. he is missing or refuses to apply for the Letters of Administration.

2. My father’s cousin died without a will. He was unmarried and had no children. His siblings do not want to apply for the Letters of Administration due to their old age. Can my father or I apply for the Letters of Administration?

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. In default of any such person it shall be granted to the Official Administrator.

My father and I are issues of the uncle and aunt of the deceased. 

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.

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.

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.

However, my father and I may have beneficial interest in the estate by virtue of s. 3 of the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481). 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. 3 of the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481) and might have beneficial interest in the estate.

If my father and I have grounds to establish beneficial interests under s. 3 of the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481), then we must prove that the deceased’s living siblings have waived their rights to the grant, and apply for the grant of administration by virtue of s.21(4) of Non-Contentious Probate Rules (Cap. 10A).

Otherwise, the administration shall generally be granted to the Official Administrator under r.21(3) of Non-Contentious Probate Rules (Cap. 10A).

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.  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.

2. Procedures

Documents in support of the application (for a Grant of Letters of Administration)

1. A properly executed oath in the appropriate specified form (see below).
2. The death certificate of the deceased
3. A certificate showing the relationship of the applicant to the deceased (e.g. a photocopy of the marriage certificate of the applicant and the deceased, or the birth certificate(s) of the child(ren) of the deceased, or the birth certificate of the deceased for a parent applicant)
4. A copy of the HKID cards of the deceased and the applicant
5. If the situations stipulated in sub-sections (a) to (f) of 38(1) under Non-Contentious Probate Rules (Cap. 10A) arise, affidavit of justification for sureties (Form M3.1) and surety's guarantee (Form M3.2).

Specified Forms

The appropriate forms should be used for the applicants’ oath:

• a surviving spouse including a partner to a union of concubinage (Form L1.1a, L1.1b, L1.2a, L1.2b);
• children (Form L1.3a, L1.3b);
• parents (Form L1.4a, L1.4b);
• siblings (Form L1.5a, L1.5b);
• grandparents (Form L.1.6a, L1.6b in the capacity of the lawful grandmother/grandfather of the deceased); and
• uncles and aunts (Form L.1.6a or L1.6b in the capacity of the lawful uncle/aunt of the deceased).

1. If the testator publicized the existence of his Will during his lifetime but the Will cannot be found after he died, can the Letters of Administration be applied for?

Letters of administration of the estate of a deceased person are granted where the deceased died wholly intestate.

When an applicant applies for Letters of Administration, he is required to prove intestacy.  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.

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). The Court may direct that the application be made on summons to the Registrar or judge or to the court on motion: r.60 of Non-Contentious Probate Rules (Cap. 10A).

The party propounding the will bears the burden to rebut the default presumption that the will was revoked by destruction by the deceased in his lifetime.

The grant made is limited until the original or a more authentic copy is proved.

6. Special Grant

1. Grant de bonis non

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.

Under s.34 of the Probate and Administration Ordinance (Cap. 10), chain of executorship applies when the deceased executor dies after proving the deceased testator’s will and the executor obtains a grant of probate to the deceased executor’s will.  If the executor of the deceased executor proves the unbroken chain, he is the executor of every preceding testator.

Eligibility

A grant de bonis non may be made to any person who is equally entitled as the previous grantee.

If the deceased grantee was the only person taking a beneficial interest in the residuary estate of the deceased (e.g. the only person entitled to the estate on an intestacy, or the sole residuary legatee and devise named in a will), a grant de bonis non will be made to his personal representative. 

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.

Where the deceased was survived by a surviving spouse, by virtue of r.21(5) of Non-Contentious Probate Rules (Cap. 10A), the personal representative of a person in any of the classes mentioned in r.21(1) and in r.21(2) shall be preferred to the personal representative of a spouse who had died without taking a beneficial interest in the whole estate of the deceased as ascertained at the time of the application for the grant.

The general rule applies: a living person is preferred (except by direction of a registrar) to the personal representative of a deceased person who had an equal title to a grant.

Procedures

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.  This must be done by the appropriate form of affirmation or affidavit (Form no. S3.1a (or S3.1b) (without will) or S3.2a (or S3.2b) (with will)).

1. My father died intestate many years ago. My mother did not obtain a Letter of Administration. My mother just died intestate. What should I do to administer the estates of my father and mother? 

Since grants have not been made in respect of the estates of my father and mother, I must apply for them.

Under r.21(1)(ii) of Non-Contentious Probate Rules (Cap. 10A), I have a beneficial interest in the estates of my father and mother and am entitled to the respective grants to administration.

For the relevant procedure, please see the section regarding Letter of Administration – Procedures.

2. Grant durante absentia

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.

Eligibility

The grant will usually be made to the attorney of the person entitled to the grant.

If there is a minority, or if a life interest arises under the will or intestacy, two attorneys or a trust corporation, with or without an individual in addition, must be appointed to obtain the grant: s. 25 of Probate and Administration Ordinance (Cap. 10).

Procedures

Under r. 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.

8. Revocation of grants

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. 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.

A grant will commonly be revoked on the following grounds:

• a later will is found;
• the will is proven to be invalid;
• the “deceased” is proven not to be dead;
• the person claiming to be the person entitled to the grant is proven not to be so;
• a person with a higher priority comes forward; and
• where the grant was issued without regard to a caveat.

9. FAQ

1. Is there a time limit to apply for a Grant of Probate or Letters of Administration?

No, there is no time limit.  If all required documents are in order, the application should be submitted as soon as possible.  However, except with the leave of the Registrar, no grant of probate or of administration with the will annexed shall issue within 7 days of the death of the deceased and no grant of administration shall issue within 14 days of the death of the deceased: r.5(3) of Non-Contentious Probate Rules (Cap. 10A).

6. What should the executor/administrator do if he has lost the Grant?

He may apply for a Duplicate Grant in person or through a firm of solicitors in Hong Kong.

He shall attend the Probate Registry directly and file such application by way of an affidavit:

1. explaining how the Grant was lost and/or misplaced;
2. providing reason(s) that a Duplicate Grant is necessary; and
3. undertaking to the Court to return the Duplicate Grant to the Probate Registry if the “original” Grant is found later.

Furthermore, he has to apply for and file a certified copy of the Schedule of Assets and Liabilities (including the Additional Schedule) and the Will (if any); and pay the necessary administration fees.

7. What are citations and caveats to a Will?

A citation is used to force some action or step in relation to the taking of the grant to the estate. It is issued by the Probate Registry and takes four main types:

1. a citation to accept or refuse a grant, governed by r.46 of the Non-Contentious Probate Rules (Cap. 10A);
2. a citation to force executors who are entitled to apply for a grant, but who have not yet done so, to apply for a grant governed by r.46 of the Non-Contentious Probate Rules (Cap. 10A);
3. a citation to clear off prior right to a grant governed by r.46 of the Non-Contentious Probate Rules (Cap. 10A);
4. a citation to propound the will, governed by r.47.

A caveat is a means of preventing a grant of probate or administration from being sealed without the caveator's knowledge. It remains valid for six months, after which it becomes ineffective unless renewed. However, a caveat can be renewed repeatedly every six months, potentially impacting the estate for many years. Strictly speaking, a caveat should only be lodged to prevent the making of a grant in the event where there is a dispute of validity of the grant or the entitled person, but they are often used to safeguard third-party claims against the estate, which may be considered an abuse of the process.

8. What can be done if the Will is found after the Letters of Administration is granted?

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 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.

9. I don’t have many close relatives. Can I appoint a friend or an institution, e.g. an NGO, to be the executor of my will? If yes, what should I do / prepare to make such an arrangement?

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.   The friend cannot be appointed as an executor if he:

1. Is under 21 years old;
2. suffers from mental/ severe physical disability to the extent that renders him incapable of managing his own affairs; or
3. in prison.

The Court generally views that an insolvent person is less desirable to be appointed an executor.

NGO: An NGO may be appointed executor if it is: 

(a) a trust corporation: 

1. a corporation appointed by the court in any particular case to be a trustee (if authorised by its constitution to act as trustee); and
2. any trust company registered under the Trustee Ordinance ( 29), it may be appointed executor; or

(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 designated executor always has the option to renounce. Therefore, a testator may ask the proposed executor in advance to see whether he or she is willing to act. 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 testator may contact the in-house lawyer of the NGO and inquire if the NGO is willing to act as an executor.  To ensure that the appointment is valid and acceptable, it is best practice to incorporate the relevant standard terms and conditions of a trust corporation into the will.

10. Would the preparation for arrangement be any different if the size of my estate is (1) less than $50,000; (2) more than $50,000 but less than $150,000; or (3) more than $150,000?

For an estate less than $50,000, if the estate consists of money only and the deceased did not beneficially own other properties in Hong Kong not being money, you can apply for a confirmation notice from the Home Affairs Department which allows you to administer the estate without any grant.  (Please see the section on confirmation notice)

For an estate more than $50,000 but less than $150,000, and if the estate consists of only bank accounts and/ or mandatory provident fund money, you can apply for the estate be administered summarily without any grant under s.15 of the Probate and Administration Ordinance (Cap. 10).  You should apply to the Official Administrator for the exercise of his power to get in and administer the estate.  To support your application, you should file an affidavit (Form N1.1) sworn with the Registry and exhibit a schedule (Form N4.1) setting out the assets and liabilities of the deceased as at the date of his death known to the applicant and other documents that the Registrar may require.

For an estate more than $150,000, follow the usual procedure for obtaining a grant. (Please see the sections on Grant of Probate, Letters of Administration (with will) and Letters of Administration (without will))

11. Are there any limitations of who can be my executor?

There are few limitations in relation to the choice of an executor.

But a person with the following attributes cannot be appointed as an executor: 

1. Under 21 years old;
2. suffers from mental/ severe physical disability to the extent that renders him incapable of managing his own affairs (Please see s.33 of Non-Contentious Probate Rules) (Cap.10A));
3. in prison

The Court generally views that an insolvent person is less desirable to be appointed an executor.

12. As the executor (who is not a direct relative of the testator, e.g. friend or an NGO), are there any preparations that I can make?

You may refrain from committing acts which may lead the Court to consider you unsuitable for appointment as an executor.

Please refer to the section about “capacity of an executor”.

1. Death registration

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. It is a criminal offence to refuse or, without reasonable excuse, omit to register a death as required by law punishable by a fine of HK$2,000 or up to 6 months’ imprisonment.

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.

For more details about death registration, please visit the Immigration Department’s website.

1. Payment of Debts and Funeral Expenses

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.

Debts

Debts can be incurred both before and after the death of the deceased. For example, the deceased might have used his/her credit card to purchase goods and died before the balance becomes due. An example of a debt incurred after death is the management fee of a property that is owned by the deceased. All debts have to be ascertained and paid, or provisions for payment must be made, before the estate is distributed to the beneficiaries.  The personal representative has to take reasonable steps to make sure that there is no outstanding debt owed by the estate before distribution. The safe way to do so is by advertisement in the Gazette (and newspaper), asking the potential creditors to come forward to the personal representative with the particulars of their claim in at least 2 months’ time: s.29 of Trustee Ordinance (Cap. 29).

Insolvent Estate

“Insolvent” means that the assets of the estate are not enough to pay for the debts of the estate. If the estate is insolvent, the personal representative must take extra care. After settling the funeral expenses and other testamentary expenses, he or she must observe the priority set out in section 63 and schedule 1 of the Probate and Administration Ordinance (Cap. 10) and the Bankruptcy Ordinance (Cap. 6) when he tries to pay off the deceased’s debt.

A failure to observe the proper order can render the personal representatives personally liable. As such, in case of insolvency, legal assistance is advisable.

Maintenance Claim

Note also that there may be claim under Inheritance (Provisions for Families and Dependents) Ordinance (Cap. 481) within 6 months of grant. More specifically, families or dependents of the deceased may claim against the estate if they contend that they should be given a share (if not provided under the will or intestacy) or a large share than the share that they are now given under will or intestacy.

Taxes

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. 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.

Other Expenses

Other expenses to be paid out of the estate, apart from funeral expenses, include: the expenses incurred for obtaining legal advice, the costs and expenses incurred in the application for the grant of representation and the Court fees.

Timing of Distribution

There is no hard rule. 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. 

2. What property constitutes assets?

Property formed part of the estate

Real property: i.e. landed properties. A personal representative needs to register the grant of representation at the Land Registry before he/she can effectively deal with the property.

Chattels: items such as cars, watches and jewelries etc.

Bank accounts: the personal representative should present the grant of probate/letters of administration to the bank.

Insurance policies: If the beneficiary of the policy is the deceased himself, the personal administrator will need to collect the insurance money, if any, according to the policy. 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. See below.

Mandatory Provident Fund/Other Pension Schemes: For MPF, please refer to the website of the Mandatory Provident Fund Schemes Authority for more information. For other pension schemes, you need to refer to the scheme documents and contact the person-in-charge accordingly.

Company Shares: The personal representative does not step into the shoes of the deceased and become a member (i.e. shareholder) of the company automatically upon grant. He or she needs to ask the company to register him or her as a member: s.158 of Companies Ordinance (Cap 622).

Property not formed part of the estate

Property held in joint tenancy: it passes to other joint tenant(s) the moment the deceased dies. All the other joint tenant(s) need(s) to do is to register the death certificate of the deceased joint tenant.

Nominated property: e.g. some pension policy states that the benefits will pass to another person upon the pensioner’s demise.

Life insurance policies written in trust for a named beneficiary: the insurer would pay the insurance money to the beneficiary directly.

3. Powers of the Personal Representatives in Dealing with the Assets

Collecting & Securing Assets

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. There may be costs consequences to the personal representative personally though, especially if the claim is actually a claim involving beneficiaries. 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. To make sure he or she will be entitled to recovering the costs from the estate, the prudent way to do in case of doubt is for the personal representative to obtain authorization from the Court before commencing or defending the action (such authorization is called “Beddoe order”).

Likewise, a personal representative has the powers to defend the estate in a legal action and to reach settlement with the claimant. The same costs concerns set out above apply more or less equally to the defence of a claim.

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.

Powers To Dispose of the Assets

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.

Exceptions include specific gift under a will (i.e. the deceased gave a specific asset to a specific beneficiary). 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.

Another exception is a spouse’s right of first refusal over the matrimonial property. 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. If the matrimonial property is worth more than his/her share under intestacy, he or she may pay the shortfall to the estate in return for the whole of the matrimonial property. Please refer to question 1 of Case Illustration for details.

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.  

Powers of Management of the Assets, e.g. postpone distribution, delegate, insure, mortgage/charge, investment

Time for distribution: There was a saying of “executor’s year” which expects a personal representative to distribute the assets according to the will or intestacy in one year after the deceased’s demise. But it is far from a hard rule. There are many circumstances under which the representative may postpone full distribution such as ongoing claim by a third party claimant against the estate. A representative may make partial and proportional distribution if the circumstances require and/or permit. But the personal representative must act honestly on the timing of distribution and must not postpone unreasonably.

Delegation: Generally speaking, insofar as reasonable, a personal representative may delegate his powers to an agent, e.g a solicitor or an accountant when the estate is complicated: s.27 of Trustees Ordinance (Cap 29).  

Insurance, mortgage/charge, investment: If there are reasonable grounds why distribution cannot be effected immediately, e.g. minority interest, outstanding debt or litigation or unripeness to sell, a personal representative may exercise powers to manage such as power to insure, to mortgage or to invest.

4. Distribution of Assets

Obtaining receipts

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.

Failure of gifts

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. E.g. ademption, abatement and lapse.

Ademption happens when a specific gift under a will no longer exists at the time of the deceased’s demise. In such case, the intended beneficiary will not get that specific gift. One exception is that the specific gift changes in form only. E.g. The deceased said in the will “I give my shares in ABC company to my Son” and the company changes its name to XYZ before his demise. The Son will get the shares of XYZ.

Abatement happens when the remaining assets of the estate is not enough to pay off its funeral expenses and debts. In such case, the specific gift under the will have to be used to pay off those expenses and the debts too and the beneficiary will not be able to get that gift.

Lapse happens when the intended beneficiary under the will dies before the deceased. But if the beneficiary is a descendent of the deceased, then the gift will go to the issue of that deceased beneficiary under s.23 of the Wills Ordinance (Cap. 30).     

Income and interest

Generally speaking, if in his/her will the deceased gives a specific gift, e.g. a specific apartment or a specific stock, to a beneficiary, the beneficiary is entitled also to the income of the gift since the demise of the deceased, e.g. the rent generated by that apartment and dividend given by the company.

Generally speaking, if such deceased gives a general gift of e.g. 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).

5. Duty to Account

A personal representative has the duty to account to the beneficiaries for the estate. The account shall: 

(1) show the opening balance (including capital assets) and closing balance;

(2) give details of movement of assets, incomes and expenditure of the estate;

(3) give details of the whereabouts of all properties (including cash) of the estate which the personal representative is duty bound to administer; and

(4) support the account with documentary evidence.

The duty to account does not arise only at the end of the administration. A personal representative has to account to the beneficiaries as to the aforesaid from time to time during administration e.g. every 3, 6 or 12 months. Failure to render proper accounts without reasonable excuses is a ground for the Court to remove such representative from office.

6. Duty of Not to Waste and Duty as a Fiduciary

A personal representative has a duty to administer the assets of the estate according to the law with due diligence. He or she may be liable personally for the resulting waste if he/she failed such duty by wilful misconduct or negligence etc.

As a fiduciary, a personal presentative is bound to do his best for the benefit of the estate. 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.

If the personal representative steals form the estate, he/she may further be criminally liable.

7. Liabilities Towards Third Parties

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. 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.

8. Remuneration

In general, there is no remuneration for a personal representation. Exceptions include where the will expressly providing so, e.g. by way of a gift if the executor is a family member. In case where a professional executor is appointed instead, a charging clause would usually be included in the will which authorizes that professional executor to charge at a certain rate for the work carried out for the estate.

9. FAQ

1. What if the estate includes a business?       

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. In general, a personal representative has no powers to hold on to the shares of the deceased and run the company indefinitely. The most he can do is to run it for a short period in order to sell it at a good price. 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.

3. Can a surviving spouse acquire the matrimonial property

If the intestate leaves a flat in which the surviving spouse was residing at the time of the intestate’s death, the surviving spouse has the right to ask for that flat (commonly  called matrimonial property) to be given to him/her in satisfaction of his/her share under intestacy. 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. The surviving spouse can make this request in writing to the personal representative within 12 months after the first taking out of representation.

4. Can a beneficiary refuse to take up the entitlement to an estate?  

A person will not be forced to take up if he or she does not want 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. 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? E.g. what if all the beneficiaries under the will have predeceased the deceased and have left no issue, and the deceased has no surviving families under the laws of intestacy?”.  

5. Is there a time limit for the distribution of the estate?

As discussed, the starting point is within 12 months from the demise of the deceased. But there are many circumstances that may reasonably delay the distribution. 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.

6. What is a deed of family arrangement? When to use it?

The beneficiaries of an estate may come up with an agreement as to how the estate be distributed. For example, some may prefer taking up the deceased’s stocks and some prefer cash and some prefer landed properties. As long as all the beneficiaries agree, such agreement is generally enforceable. For legal reasons, it is advisable to put the agreement in a deed and have every beneficiary sign it. If you have doubt about the form or substance of such deed, seek legal advice.

7. My grandmother just died and my grandfather died many years ago. She had three children, A, B and C. C passed away one year ago. C had two children, D and E. (1) If my grandmother died with a will directing her estate be distributed among A, B and C evenly, how is the estate be distributed? (2) If my grandmother died intestate, how is the estate distributed?

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).  

In relation to scenario (1), according to s.23 of Wills Ordinance, where a beneficiary of a will:

• is a descendent of the testator;
• passes away before the testator does; and
• leaves behind issue.

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.

Under the will in the instant scenario, the grandmother’s estate was to be distributed among A, B and C equally. Since C was a descendent of the grandmother and passed away before she did, leaving behind issue D and E, D and E will take C’s entitlement under the will in equal shares.

In relation to scenario (2), according to s.4 of the Intestate’s Estates Ordinance, if the deceased leaves issue but no spouse, the residuary estate (i.e. the estate after deduction of the deceased’s debts, taxes, funeral, legal and administration expenses etc) will be distributed as follows:

• child(ren) of the deceased take equal shares (contingent on attaining the age of 18 or on earlier marriage), and
• the issue of any child(ren) who pre-deceased the deceased take(s) equally their respective parent’s share (contingent on attaining age of 18 or on earlier marriage).

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. 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.

8. The husband died without a will. Before he died, the wife was the guardian of the husband. If their child has been lost for many years and has never taken care of the two elders, can the wife inherit the entire estate?

Under laws of intestacy, the wife may not. If the wife insists that she should get more from the estate than what the laws of intestacy stipulates, she may make an application under Inheritance (Provision for Families and Dependents) Ordinance (Cap. 481). See Part VII.

Meanwhile, if, upon due investigation, there is evidence suggesting that that child has died before the deceased did and has left no child of his/her own, the wife may apply to the Court for an order authorizing the distribution of the estate on the footing that no provision is given to that child. Such order is called “Benjamin Order”.

9. What if the deceased died in the Mainland China, but domiciled in Hong Kong, how can the intended personal representative proceed with the application of grant?      

He or she can proceed as if the deceased died in Hong Kong. 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.

10. If a creditor fails to collect his outstanding debt from the debtor before the death of the debtor, how can the creditor protect himself and chase for repayment?

The creditors should go after the estate's personal representatives (i.e. the executor or the administrator of the deceased's estate) . There are several steps the creditors could take to protect themselves:

1. First of all, they should conduct a probate search at the Probate Registry at the cost of $18. This could help ascertain whether there is a current application for a Grant of Representation or whether a Grant has been issued.
2. If a Grant has been issued, the creditors can apply to the Court for a copy of the Grant (which contains the particulars of the executor/ administrator). The creditors can contact the executor/ administrator, and they may take legal actions to chase for the debts.
3. If no Grant has been issued, the creditors can file a Caveat (similar to a caution/warning notice, which costs $72 and lasts for 6 months) at the Probate Registry to ensure that the Caveat will have to be dealt with before the Grant can be issued.

You are advised to consult a solicitor for how to take appropriate legal actions to claim repayment.

12. If the deceased had a credit card debt, should the intended personal representative clear the debt first or apply for a grant of probate/letter of administration first?

It may take months or, in complicated cases, more than a year to obtain grant. Meanwhile, the interest of a credit card debt can be prohibitively high. There is no objection for the intended personal representative to repay the debt out of pocket first, and be reimbursed by the estate subsequently. This is especially so for an executor, for his duty and power comes from the will directly. The grant of probate is a proof of the will only and not itself the source of duty/power.

13. If there are two personal representatives, can one of them deal with the estate alone?

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.

Exceptions include conveyancing of landed property, which can only be made with the concurrence of all personal representatives.

14. If I am a beneficiary under intestacy or under a previous will, or if I have reasons to believe that I am a beneficiary under the latest will, can I ask the executor under the latest will to disclose to me the contents of the will? If the executor refuses to do so, what can I do?

You may make an application under section 7 of the Probate and Administration Ordinance (Cap 10) to compel the executor to so disclose.

15. If the personal representative fails to administer the estate properly, what can the beneficiary do?

The beneficiary may commence an administration action to compel the personal representative to do his/her work properly. 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.

If a beneficiary is of the view that the personal representative has wasted the assets the estate by misconduct or negligence and is minded to recover those assets from the personal representative, there may be certain statutory limitation period applicable (usually but not necessarily 6 years). Exactly when the limitation starts to run and when it expires can be technical and complicated. It is advisable to seek legal advice as soon as possible. 

16. If the personal representative fails to pay off the deceased’s debts before distribution, will he or she be personally liable for the debts?

Probably. 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.

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

Yes. But beware of the costs consequences. See point 3 of this Part and question 18 of FAQ.

18. Is the personal representative personally liable for the costs arising out of the litigation in relation to the deceased's 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. 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. Whenever in doubt, especially when the opponent is one of the beneficiaries, the prudent way to do is to first seek a Beddoe order before initiating or defending a claim. See point 3 of this Part.

19. What if there are no beneficiaries to distribute to? E.g. what if all the beneficiaries under the will have predeceased the deceased and have left no issue, and the deceased has no surviving families under the laws of intestacy?

The assets of the estate will go to the government. It is called “bona vacantia”, meaning, ownerless property.

Case Illustration

1. The deceased, a wealthy man, has a mistress and has been emotionally detached for a long time from his wife whom he had married for 20 years. The deceased does not want to pay a dime of maintenance to his wife and hence never divorced his wife. Instead, he made a will giving all his assets to his mistress. The deceased and the wife are childless.

The wife may apply for maintenance and she has a good chance to be given a substantive share from the estate.

2. The deceased, a wealthy widower, has 3 adult sons, namely, A, B & C. Sons A and B are both highly-educated and highly-paid professionals. Son C, however, is physically handicapped and is earning minimum wages all along. Physically handicapped though he is, Son C has been a loving and caring son to the deceased. The deceased died intestate, meaning that Sons A, B and C are to inherit 1/3 of the estate each under laws of intestacy.

Son C may apply for maintenance and has a good chance to get a larger share than 1/3.

3. The deceased, a wealthy widower, has an adult son. The son dropped out from high school at the age of 16 and has been depending on the deceased financially all along. The son was a big spender and he only talked to the deceased when he asked for money. The deceased therefore made a will giving all his assets to his brother and his 2 nephews instead.

Being an able-bodied adult, the son’s chance of a successful application for maintenance is much lower. More likely than not, his application would either fail or succeed only to a limited extent. 

4. The deceased is a wealthy woman with 2 teenage daughters. She was married 20 years ago but her husband left the family for another woman in the Mainland 15 years ago and has lost contact since then. The deceased raised the daughters by running a small business which turned out to be a big success. Being a traditional Chinese, the deceased has never divorced her husband. Meanwhile, grateful for the deceased’s love and care, the 2 daughters have done very well in school and have been a sweetheart to the deceased. 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).

The teenage daughters may apply for maintenance and have a good chance to get more than what they get under intestacy laws.

VI. Administration of Estate

REMINDER: Administration of estate often involves complicated issues that do not have easy answers. The below is merely a summary of the general principles and the common issues. It cannot possibly cover each and every scenario. If in doubt, you are strongly advised to seek legal advice.

VIII. Videos