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. 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. 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.
Letters of administration of the estate of a deceased person are granted where the deceased died wholly intestate. If we were maintained, either wholly or substantially, by the deceased, immediately before the death of the deceased, my father and I would be entitled to apply to the court for an order under s. Assuming that the deceased only leaves siblings and a cousin (i.e. my father), pursuant to s.21(1)(iv) of Non-Contentious Probate Rules (Cap. 10A), the deceased’s siblings have immediate beneficiary interests and are entitled to a grant to administration.
Letters of Administration (in case of intestacy)
For deaths before 15 th July 2005 , estate duty remains payable. Before the abolition of estate duty on 11 th February 2006 , “Estate Duty Clearance” (evidencing the required duty has been paid) needs to be obtained before an application can be made for a Grant of Representation. In practice, it would be of less significance as the beneficiaries ranking in priority under intestacy, being the surviving spouse and children of the deceased, would generally be the persons expecting financial provisions from the deceased’s estate. You should consider appointing a person to act as guardian (to have legal custody) of any children who are minors (below the age of 18) at the time of your death. Discretionary powers will therefore be given to the executor to distribute as much of the income and/or capital for the benefit of the child as the executor sees fit before the child can formally receive all the assets.
Generally speaking, if such deceased gives a general gift of e.g. Lapse happens when the intended beneficiary under the will dies before the deceased. One exception is that the specific gift changes in form only.
If a person (other than the executor) keeps the Will and refuses to give it to the executor, what can the executor do?
One point to note is that for those adopted children (i.e. they have been adopted by persons through a legal adoption process), they have the same status as the natural children. If the deceased parent had a Will and he gave “his children” a gift or a sum of money to share, the illegitimate children were not entitled to share in the gift. Before the 19th June 1993, illegitimate children were not entitled to succeed to their deceased father’s estate if their father died intestate (without a Will).
- If the 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.
- For more information regarding the application procedure, please refer to the website of the Home Affairs Department.
- 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.
- However, if the testator intends to benefit natural and legitimate children only, they must clearly express this in the will.
- The applicant has to sign that document and swear for the truthfulness of its content in front of a solicitor or a court officer.
A personal representative has the duty to account to the beneficiaries for the estate. Generally speaking, a personal representative has the powers to sell the assets of the estate for the purpose of paying debts or expenses of the estate or for the purpose of distribution. Likewise, a personal representative has the powers to defend the estate in a legal action and to reach settlement with the claimant. In particular, a person representative has the power to commence legal proceedings to collect assets for the estate, including but not limited to obtain a freezing order against the party holding the assets so that that party cannot dispose of those assets until court order.
Is there a time limit for the distribution of the estate?
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. He may apply for a Duplicate Grant in person or through a firm of solicitors in Hong Kong. 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. If the executor of the deceased executor proves the unbroken chain, he is the executor of every preceding testator. 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. Otherwise, the administration shall generally be granted to the Official Administrator under r.21(3) of Non-Contentious Probate Rules (Cap. 10A).
Grant of Probate
(1) show the opening balance (including capital assets) and closing balance; 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). 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. Abatement happens when the remaining assets of the estate is not enough to pay off its funeral expenses and debts. In such case, the intended beneficiary will not get that specific gift.
- Lapse happens when the intended beneficiary under the will dies before the deceased.
- Where a personal representative is residing abroad, an application can be made for a grant of special administration if no previous grant has been made.
- The deceased died intestate recently and her husband emerges out of nowhere asking for his share from the estate (i.e. more than 1/2).
- Where the residue is not wholly disposed of by the will, any person entitled to share in the residue
- 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.
- 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).
S.25 of Probate and Administration Ordinance (Cap. 10) governs the number of grantees to be allowed. 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. A’s wife is alive but refused to apply for Letters of Administration.
That is why it is prudent for the personal representative to advertise and wait for at least 2 months as set out in this Part. Exceptions include conveyancing of landed property, which can only be made with the concurrence of all personal representatives. The grant of probate is a proof of the will only and not itself the source of duty/power. If, however, the personal representative delay unreasonably for a prolonged period, it may constitute a ground for removal of that representative from office by the Court. The situation may be different if the will specifically asks the personal representative to run the deceased’s business for a period, or if all the beneficiaries so agree. In general, a personal representative has no powers to hold on to the shares of the deceased and run the company indefinitely.
More likely than not, his application would either fail or succeed only to a limited extent. Being an able-bodied adult, the son’s chance of a successful application for maintenance is much lower. The deceased therefore made a will giving all his assets to his brother and his 2 nephews instead.
No matter when the deceased dies, an estate will need to provide for salaries tax, profits tax and property tax due by the deceased up to the date of his/her death. If the deceased died before the abolition of estate duty in 2005 and the net value of the estate is over $7,500,000, estate duty is payable. “Insolvent” means that the assets of the estate are not enough to pay for the debts of the estate. First thing first, the executor/administrator needs to arrange payment or make provisions for the payment of the deceased’s debts, funeral and other expenses in forzabet relation to the estate.
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. In that case, a testator must also specify the conditions in which the executor will receive the legacy, e.g. Therefore, a testator must specify in the will if he wishes to leave the executor a legacy for taking up the role. It is a gift of a stated amount of money to a beneficiary.
Another exception is a spouse’s right of first refusal over the matrimonial property. The same costs concerns set out above apply more or less equally to the defence of a claim. All the other joint tenant(s) need(s) to do is to register the death certificate of the deceased joint tenant. For other pension schemes, you need to refer to the scheme documents and contact the person-in-charge accordingly. For more details about death registration, please visit the Immigration Department’s website. 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.
When making a Will, it is advisable for special trust provisions to be arranged for a beneficiary who is a disabled. If no provision is made in a Will and a common disaster occurred rendering it uncertain which spouse survives the other, then the younger is deemed to have survived the elder. If the Will is silent on this matter, these properties will fall into the residue of the estate and will be sold, with the proceeds forming part of the cash residue. For example, if the deceased has two flats (one of them in Hong Kong and the other is situated outside Hong Kong), then the foreign property will not be included in the estate in respect of the Grant of Representation in Hong Kong. On the other hand, the law governing disposition of land/flats (real estate) which are “immovable” is the law where the land/flats are located. The law in some countries (but not in Hong Kong) requires that you must leave a certain proportion of your estate to your children or widow.
