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. 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. To prevent such issues, the testator can include a provision in the receipt clause that specifies the receipt should only forzabet be given by an individual who appears to be the treasurer or another suitable officer of the organisation.
Grant de bonis non
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. A personal representative has a duty to administer the assets of the estate according to the law with due diligence. 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. 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. 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 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.
Can I write my own will without the help of lawyers?
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. This is discussed in the section “Distribution of estate to the relevant parties”. For those without a Will, they are called “intestate”.
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. He must prove that the potential administrator is clearly unsuitable e.g. he is missing or refuses to apply for the Letters of Administration. 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.
- 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 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.
- More likely than not, his application would either fail or succeed only to a limited extent.
- 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.
- It is a gift of no specifically identified item which the beneficiary is to receive but merely a description of property to be passed.
- You are advised to consult a solicitor for how to take appropriate legal actions to claim repayment.
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.
- If the will only deals with the disposition of overseas property, the Court of Hong Kong will refuse grant of probate.
- Exceptions include where the will expressly providing so, e.g. by way of a gift if the executor is a family member.
- 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 specific gift under a will (i.e. the deceased gave a specific asset to a specific beneficiary).
- 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.
- For details of legal marriage, please go to the topic of “Matrimonial Matters”.
- 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)).
The creditors should go after the estate’s personal representatives (i.e. the executor or the administrator of the deceased’s estate) . If, however, the deceased leaves behind assets in the Mainland, the intended personal representative may need to seek the Mainland legal advice as to those assets. The personal representative’s duty is to distribute the shares of the company to the beneficiaries (if the will so specifically gifts) or to sell the shares and distribute the sale proceeds to the beneficiaries according to will or the laws of intestacy. The personal representative would be personally liable for the said contractual breach or tortious wrong to that third party and, depending on the circumstances, may or may not be entitled to reimbursement by the estate. A personal representative may assume liability towards third party if he/she commits breach of contract in the name of the estate or commit act of negligence in the course of administration. (3) give details of the whereabouts of all properties (including cash) of the estate which the personal representative is duty bound to administer; and
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”.
What if the estate includes a business?
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).
Instead, he made a will giving all his assets to his mistress. It is advisable to seek legal advice as soon as possible. It may take months or, in complicated cases, more than a year to obtain grant. You are advised to consult a solicitor for how to take appropriate legal actions to claim repayment. 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. 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.
II. The estate agents’ services (with an overview of the sale and purchase procedures)
But the personal representative must act honestly on the timing of distribution and must not postpone unreasonably. 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. There may be costs consequences to the personal representative personally though, especially if the claim is actually a claim involving beneficiaries. 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. 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 caveat is a means of preventing a grant of probate or administration from being sealed without the caveator’s knowledge.
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.
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.
Can a surviving spouse acquire the matrimonial property owned by the intestate?
As such, in case of insolvency, legal assistance is advisable. All debts have to be ascertained and paid, or provisions for payment must be made, before the estate is distributed to the beneficiaries. An example of a debt incurred after death is the management fee of a property that is owned by the deceased. Debts can be incurred both before and after the death of the deceased. You should consult your own lawyer if you want to obtain further information or legal assistance concerning any specific legal matter. The information available at the Community Legal Information Centre (CLIC) is for preliminary reference only and should NOT be considered as legal advice.
In default of any such person it shall be granted to the Official Administrator. The citation and verifying affidavit must be personally served (r.45(4)). In the given scenario, he can clear off all person with prior entitlement to a grant by a Citation. For a person who died on or after 11 th February 2006 , the relevant application fee is $265 and the fee for engrossment of a Grant is $72. Administration shall not be granted to more than four persons in respect of the same property.
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