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.

Letters of Administration (in case of intestacy)

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.

What should the executor/administrator do if he has lost the Grant?

  • Even if the total value of the estate exceeds $7,500,000, only a $100 nominal estate duty will be charged.
  • This is discussed in the section “Distribution of estate to the relevant parties”.
  • An application should be made for an order to revoke the Letters of Administration under s.33 of Probate and Administration Ordinance (Cap. 10).
  • 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.
  • 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.
  • Unless the will shows contrary intention, that beneficiary’s issue will take, in equal shares if more than one, the assets that the deceased originally left behind for that beneficiary.

If a gift is given to an unincorporated association, all members of that association receive that gift. The testator must check and confirm the name, address and the charitable status of the charity. Unless the executor is a professional executor, serving as an executor is an unpaid position. However, if the testator intends to benefit natural and legitimate children only, they must clearly express this in the will. Such a gift is intended for a group of beneficiaries rather than for individual recipient(s). When beneficiaries are recognized through a general or collective formula, typically based on their relationship rather than by name, a gift is considered to be to a class.

If the personal representative fails to administer the estate properly, what can the beneficiary do?

Instead, he may apply 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). If the testator has publicized the existence of his Will during his lifetime, the applicant may not be able to swear to the intestacy of the deceased. We must prove that the potential administrators are clearly unsuitable e.g. they refuse to apply for the Letters of Administration or that it is more convenient to do so. 3 of the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481) and might have beneficial interest in the estate. However, my father and I may have beneficial interest in the estate by virtue of s. Therefore, the deceased’s siblings have immediate beneficial interest in the estate, but my father and I do not have immediate beneficial interest in the estate.

III. Alterations to Wills

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).

What can be done if the Will is found after the Letters of Administration is granted?

Therefore, his/her power to act starts from the date of the Grant but not from the date of the death of the deceased. The power of an executor stems directly from the Will. Although the powers of an executor and an administrator are almost the same, there is one major difference.
Under the will in the instant scenario, the grandmother’s estate was to be distributed among A, B and C equally. For both (1) & (2), A and B will take 1/3 each, and D and E will take C’s 1/3 share evenly (i.e. D and E will each take 1/6 of the estate of the grandmother). If you have doubt about the form or substance of such deed, seek legal advice.
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.

  • 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.
  • Exceptions include conveyancing of landed property, which can only be made with the concurrence of all personal representatives.
  • (1) show the opening balance (including capital assets) and closing balance;
  • In case where a professional executor is appointed instead, a charging clause would usually be included in the will which authorizes that professional executor to charge at a certain rate for the work carried out for the estate.
  • However, an issue may arise in relation to whether a later will was intended by the testator to supersede an earlier will.
  • For example, if the deceased has two flats (one of them in Hong Kong and the other is situated outside Hong Kong), then the foreign property will not be included in the estate in respect of the Grant of Representation in Hong Kong.
  • 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.

You should apply to the Official Administrator for forzabet 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.
Whilst the law in Hong Kong confers absolute testamentary freedom on individuals, it also recognizes the need for an individual to make financial provisions from his estate for his spouse and those who had been dependent on him financially during his lifetime. 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. Any aggrieved party may bring legal action against the executor to contest the validity of the deceased’s Will.

Administration of Estate

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.
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.