It is a gift of no specifically identified item which the beneficiary is to receive but merely a description of property to be passed. The testator must specifically identify or describe the gift in his will. It is a gift of something the testator owns at the date he makes his will. 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. The person making the Will is called the “testator”(if male) or “testatrix”(if female). After the abolition of estate duty, provisions have been made in the laws of Hong Kong to safeguard against intermeddling of an estate.
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
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.
Inheritance (Provision for Families and Dependants) Ordinance
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 forzabet June 1993, illegitimate children were not entitled to succeed to their deceased father’s estate if their father died intestate (without a Will).
- This necklace could not be found in the old lady’s home or safe deposit box after her death.
- 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.
- 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.
- More likely than not, his application would either fail or succeed only to a limited extent.
- You are advised to consult a solicitor for how to take appropriate legal actions to claim repayment.
In general, there is no remuneration for a personal representation. The duty to account does not arise only at the end of the administration. (2) give details of movement of assets, incomes and expenditure of the estate;
Abolition of Estate Duty and the procedures for applying for a Grant of Representation
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).
Can a surviving spouse acquire the matrimonial property owned by the intestate?
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.
One point to note before the abolition of estate duty is that any gift to a registered charity in Hong Kong according to your Will is exempt from estate duty. You may wish to make specific gifts of money, shares, or real estate to certain persons or charities. Most often, you will leave your personal belongings to your spouse. 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. A survivorship clause is a clause in a will that requires the beneficiary must outlive the testator by a specific period before is eligible to receive the gift. However, if there are any specific terms in that Will which allow the former spouse to take some assets from the deceased’s estate, these terms may be void unless a contrary intention is proved.
When and how can the executor/administrator remove the items inside the deceased’s safe deposit box at a bank?
The personal representative of any such person subject to r.25(3) of Non-Contentious Probate Rules (Cap. 10A) The personal representative of any such person subject to r.25(3) of Non-Contentious Probate Rules (Cap. 10A) (A living person is preferred to a personal representative); Will the executor only receive the legacy after he has obtained probate and administered the estate? If the spouse is given an absolute gift, it may be subject to a survivorship clause, which requires the spouse to live longer than the testator by a specified period before they are eligible to receive the gift. Minors cannot issue a valid receipt to personal representatives. A residuary gift is the remaining assets of an estate after all the specific and general legacies have been paid and other necessary provisions have been made.
Probate Series Episode 1: Law of Succession: Making a Will
- Under such circumstances, the surviving spouse could make a claim for a share of the estate, and the illegitimate child could claim for maintenance to be provided for him out of the estate pursuant to the Inheritance (Provision for Family and Dependants) Ordinance.
- However, if a testator were a) mentally ill or b) extremely ill and were under medication, he needs to prove that he was conscious for a period such that he knew and agreed to the content of the will when the will was signed.
- 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.
- The applicant for a Grant of Probate or Letters of Administration (“the Applicant”) should follow the old practice to obtain estate duty clearance before lodging an application to the High Court for a Grant of Representation.
- Any person who, immediately before the death of the deceased, was being maintained either wholly or substantially by the deceased may apply.
- 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.
- Typically, the Court requires evidence that at least one medical practitioner has examined and confirmed the ill testator’s mental capacity before signing the will, and has witnessed the process.
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.
An application should be made for an order to revoke the Letters of Administration under s.33 of Probate and Administration Ordinance (Cap. 10). However, a caveat can be renewed repeatedly every six months, potentially impacting the estate for many years. If all required documents are in order, the application should be submitted as soon as possible. The grant made is limited until the original or a more authentic copy is proved.
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). 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. Rr.45 to 48 of Non-Contentious Probate Rules (Cap. 10A) provide for the procedures on the issuance and service of citations and entry of appearance by a person cited as well as the application for an order for a grant upon nonappearance. 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. Without any person having a beneficial interest in the estate, a grant may be made to the Official Administrator. 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.
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.