In the event that a child has predeceased the deceased without leaving any child(ren) of his/her own and the deceased has more than one surviving child, the predeceased child’s share of the estate will be equally divided among other surviving children. If the deceased’s children all survived him/her, the residuary estate will be divided equally among them, and the grandchildren will not receive any portion of the estate. On the other hand, if one or both parents survive, the siblings cannot obtain a share of the deceased’s estate. One half will be distributed to the surviving spouse and the other half will be distributed to the surviving parent(s). If the deceased has issue, the deceased’s parents, brothers and sisters cannot obtain anything even if the deceased’s spouse has predeceased (die before) the deceased. (C) The deceased leaves a spouse, parents and siblings, but no issue
- You can appoint a friend to be the executor, but there are generally a few requirements applicable for an individual to be appointed an executor.
- If the executor of the deceased executor proves the unbroken chain, he is the executor of every preceding testator.
- 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.
- The same costs concerns set out above apply more or less equally to the defence of a claim.
- 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.
What happens to a will that does not follow the legal requirement?
- The person making the Will is called the “testator”(if male) or “testatrix”(if female).
- 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 maximum number of administrators (or adminstratrix in case of a female) of an estate is four .
- 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.
- 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).
- 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.
- Usually a person has to take action to revoke his/her own Will.
Factors to be considered when appointing an executor to manage the estate;5. Declaration of the testator’s domicile and its impact on the settlement of the estate;4. The wife may apply for maintenance and she has a good chance to be given a substantive share from the estate. You may make an application under section 7 of the Probate and Administration Ordinance (Cap 10) to compel the executor to so disclose. This is especially so for an executor, for his duty and power comes from the will directly.
Can the testator make one Will to deal with Hong Kong property and another Will to deal with overseas property?
You should apply to the Official Administrator for the exercise of his power to get in and administer the estate. A testator may contact the in-house lawyer of the NGO and inquire if the NGO is willing to act as an executor. Therefore, a testator may ask the proposed executor in advance to see whether he or she is willing to act.
If the will only deals with the disposition of overseas property, the Court of Hong Kong will refuse grant of probate. Please refer to the section about the “Capacity of an executor” for appointing a trusted person to be the executor. A valid will will be duly executed upon the testator’s death. An application shall be made within 6 months since the first grant of representation, otherwise, leave of the Court must be obtained.
One major difference between an executor and an administrator The maximum number of administrators (or adminstratrix in case of a female) of an estate is four . A “Personal Representative” is a general term for either an executor or an administrator.
Grant de bonis non
You may refrain from committing acts which may lead the Court to consider you unsuitable for appointment as an executor. There are few limitations in relation to the choice of an executor. The designated executor always has the option to renounce. You can appoint a friend to be the executor, but there are generally a few requirements applicable for an individual to be appointed an executor.
Can probate be applied for if the original Will is lost and there is only a copy of the Will?
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. 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. 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.
Ademption happens when a specific gift under a will no longer exists at the time of the deceased’s demise. There are many circumstances under which the representative may postpone full distribution such as ongoing claim by a third party claimant against the estate. 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.
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. If a personal representative of a spouse is involved, 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. (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. 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.
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 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). 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?
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.
As a fiduciary, a personal presentative is bound to do his best for the benefit of the estate. He or she may be liable personally for the resulting waste if he/she failed such duty by wilful misconduct or negligence etc. 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).
Therefore, his/her power to act starts from the date of the Grant but not from the date of the death of the deceased. The power of an executor stems directly from the Will. Although the powers of an executor and an administrator are almost the same, there forzabet is one major difference.
Book traversal links for 1. Payment of Debts and Funeral Expenses
A Will is a document which sets out how a person’s assets are to be distributed after his or her death. 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. 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. 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.
Searching for a Will and gaining access to the deceased’s safe deposit box in a bank
No matter when the deceased dies, an estate will need to provide for salaries tax, profits tax and property tax due by the deceased up to the date of his/her death. If the deceased died before the abolition of estate duty in 2005 and the net value of the estate is over $7,500,000, estate duty is payable. “Insolvent” means that the assets of the estate are not enough to pay for the debts of the estate. First thing first, the executor/administrator needs to arrange payment or make provisions for the payment of the deceased’s debts, funeral and other expenses in relation to the estate.
