In other words, they may be entitled to get a reasonable amount from your estate in order to maintain their living. Your wife and your children could apply to the Court for provisions to be made for them from your estate. 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. Generally speaking, every person has “free testamentary capacity”. 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. This clause gives a testator control on the ultimate destination of his 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).
Therefore, it is worth knowing more about the services provided by estate agents. No matter whether you are a vendor or a purchaser, the first party that you have to deal with is normally the estate agent. (iii) Vendor and purchaser sign a provisional (or preliminary) agreement for sale and purchase of the selected property (the provisional agreement is usually provided by the estate agent). (i) A vendor finds an estate agent(s) to sell the property, and/or a purchaser finds an estate agent(s) to search for appropriate properties to buy; 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. Note also that there may be claim under Inheritance (Provisions for Families and Dependents) Ordinance (Cap. 481) within 6 months of grant.
II. The estate agents’ services (with an overview of the sale and purchase procedures)
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.
What should the executor/administrator do if he has lost the Grant?
- The above documents must be lodged together with the documents listed in the section “Documents in support of the application” (see below) with the Probate Registry.
- 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.
- 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.
- However, the label does not determine the legal effect of a document.
- Factors to be considered when appointing an executor to manage the estate;5.
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.
If the personal representative fails to administer the estate properly, what can the beneficiary do?
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.
- If you have doubt about the form or substance of such deed, seek legal advice.
- Otherwise, the administration shall generally be granted to the Official Administrator under r.21(3) of Non-Contentious Probate Rules (Cap. 10A).
- 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 .
- 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.
- 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 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.
- Probate shall not be granted to more than four persons.
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. A testator may choose to give their spouse either an absolute gift or a life interest in his estate. Therefore, wills typically grant personal representatives the power to obtain a receipt from the minor’s parent or guardian. 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). 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).
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.
Can I write my own will without the help of lawyers?
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.
Son C may apply for maintenance and has a good chance to get a larger share than 1/3. The deceased died intestate, meaning that Sons A, B and C are to inherit 1/3 of the estate each under laws of intestacy. Physically handicapped though he is, Son C has been a loving and caring son to the deceased. Son C, however, is physically handicapped and is earning minimum wages all along.
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. Absent will, the estate will be distributed by the laws of intestacy as discussed. That inventory will then be filed in the Schedule of assets and liabilities with the Probate Registry. It is for the executor named in the Will or the intended administrator to take that inventory. 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 forzabet from the date of death of the deceased.
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”.
When and how can the executor/administrator remove the items inside the deceased’s safe deposit box at a bank?
One half will be distributed to the surviving spouse and the other half will be divided equally amongst the child/children of the deceased. For details, please refer to section 4 of the Intestates’ Estates Ordinance. Usually the executor is a member of the family or a close and trusted friend of the whole family. This necklace could not be found in the old lady’s home or safe deposit box after her death.
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). If the estate is insolvent, the personal representative must take extra care. The personal representative has to take reasonable steps to make sure that there is no outstanding debt owed by the estate before distribution. 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.
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.