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.
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)). Usually no requisition is raised about the proof of the sound mind of the testator if the will was executed before solicitors, clerks or doctors. Documents in support of the application (for a Grant of Letters of Administration) 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. The applicant has to sign that document and swear for the truthfulness of its content in front of a solicitor or a court officer. The Court generally views that an insolvent person is unsuitable to be appointed an administrator.
VI. Administration of Estate
One of the main functions of a Will is to provide instructions for distributing the estate according to the intention of the testator (person making the Will, i.e. the deceased). Any person who, immediately before the death of the deceased, was being maintained either wholly or substantially by the deceased may apply. In other words, even if the deceased leaves behind substantial assets in Hong Kong, the captioned ordinance remains inapplicable if the above domicile/residence requirement is not satisfied. Generally speaking, only documents relevant to an application for a Grant of Representation, or personal items relating to a person other than the deceased and urgently required by that person, can be removed. For deaths between 15 th July 2005 and 10 th February 2006 , the Applicant still needs to follow the old practice to obtain estate duty clearance. 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.
If the will only deals with the disposition of overseas property, the Court of Hong Kong will refuse grant of forzabet 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.
- 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.
- That inventory will then be filed in the Schedule of assets and liabilities with the Probate Registry.
- (C) The deceased leaves a spouse, parents and siblings, but no issue
- An ex parte application must be filed to rebut the presumption.
- The deceased therefore made a will giving all his assets to his brother and his 2 nephews instead.
Administration of Estate
The Court generally views that an insolvent person is unsuitable to be appointed an executor. Probate shall not be granted to more than four persons. Where the residue is not wholly disposed of by the will, any person entitled to share in the residue
Is there a time limit for the distribution of the estate?
When a person dies, there may be estate (the money in bank accounts, company shares, real estate and other assets, etc.) left under the deceased’s name. A failure to observe the proper order can render the personal representatives personally liable. Therefore, his/her authority and duty as an executor starts from the very moment the testator (the “Will-maker”) dies. 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. If the deceased died intestate (i.e. no Will is found or if the Will has been revoked), the right of a person to apply for a Grant of Letters of Administration would be governed by the law of intestacy. How to express personal wishes regarding funeral arrangements in the will.
What can be done if the Will is found after the Letters of Administration is granted?
- 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.
- 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.
- It is typically used when a testator wishes to make minor changes to their existing will by adding, amending, or revoking part of it.
- 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.
- If the executor of the deceased executor proves the unbroken chain, he is the executor of every preceding testator.
A personal representative has the duty to account to the beneficiaries for the estate. Generally speaking, a personal representative has the powers to sell the assets of the estate for the purpose of paying debts or expenses of the estate or for the purpose of distribution. Likewise, a personal representative has the powers to defend the estate in a legal action and to reach settlement with the claimant. In particular, a person representative has the power to commence legal proceedings to collect assets for the estate, including but not limited to obtain a freezing order against the party holding the assets so that that party cannot dispose of those assets until court order.
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.
Generally speaking, if such deceased gives a general gift of e.g. Lapse happens when the intended beneficiary under the will dies before the deceased. One exception is that the specific gift changes in form only.
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.
Grant of Probate
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.
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.