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.
Can probate be applied for if the original Will is lost and there is only a copy of the Will?
It is not a prerequisite to obtain a court order before submitting this application. 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. 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. 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. 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).
- For details of legal marriage, please go to the topic of “Matrimonial Matters”.
- In such case, unless the overall assets of the estate is not enough to pay off its debt and hence the specific gift has to be sold too, the beneficiary has the right to insist on taking that particular gift.
- If the Court admits the copy will to probate, the order normally includes a direction that the grant is limited until the original will or a more authentic copy will has been proved.
- Exceptions include where the will expressly providing so, e.g. by way of a gift if the executor is a family member.
- Exceptions include specific gift under a will (i.e. the deceased gave a specific asset to a specific beneficiary).
- If the will only deals with the disposition of overseas property, the Court of Hong Kong will refuse grant of probate.
- 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.
If the personal representative fails to administer the estate properly, what can the beneficiary do?
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.
In such a case, the Judge may make an order for a grant contrary to the terms in the will. The executor will then be required to accept or renounce his executorship. S.25 of the Probate and Administration Ordinance (Cap. 10) governs the number of grantees to be allowed. (ii) any residuary legatee or devisee holding in trust for any other person;
Book traversal links for The estate agents’ services (with an overview of the sale and purchase procedures)
The testator does not necessarily own a general gift at the date of death. He must own the specific gift at the time of his death in order to pass the gift to the designated beneficiary. Therefore, if a person leaves a Will after the death, he or she is said to have died “testate”.
- 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.
- 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.
- Declaration of the testator’s domicile and its impact on the settlement of the estate;4.
- For more information regarding the application procedure, please refer to the website of the Home Affairs Department.
- It is advisable to seek legal advice as soon as possible.
- 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).
- 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.
Death registration
The beneficiaries of an estate may come up with an agreement as to how the estate be distributed. For more information about the distribution of estate under the law of intestacy, please see “If the deceased made no will, how can the relevant estate be distributed” and “What if there are no beneficiaries to distribute to? In such circumstances, the entitlement will go to the residuary estate and be distributed according to the will and/or intestacy laws, as may be applicable. A person will not be forced to take up if he or she does not want to. If the matrimonial property is worth more than his/her share under intestacy, he/she may pay the shortfall to the estate in return for the whole of the matrimonial property. If he/she profit himself/herself from the estate, e.g. use the estate’s money to invest for his/her own profit, he/she will liable to account for the profit so earned.
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.
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 may apply for the issuance of a citation by the Probate Registry to the executor under s.30(1) forzabet of Probate and Administration Ordinance (Cap. 10). Yes, if the person has an interest in a deceased’s estate.
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.
An ex parte application must be filed to rebut the presumption. 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. If the will is lost, the grant made is limited until the original or a more authentic copy is proved. 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). In writing signed by him and attested by a solicitor or by any person before whom an affidavit may be sworn. Renounce orally on the hearing of any petition or probate action by counsel on his behalf; or
There are three stages in relation to the implementation of the abolition of estate duty. Simply speaking, the estate duty payable is a percentage of the value of the estate. 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).
For more information regarding the distribution of estate, please go to the “case illustration”. In other words, they shall be treated as the children of the adopter but not the children of any other persons. Illegitimate children could succeed to their mother’s estate on her intestacy, but only when there were no surviving legitimate children. For details of legal marriage, please go to the topic of “Matrimonial Matters”.