Inheritance Law in Hong Kong
It is a criminal offence under the Probate and Administration Ordinance to administer or deal with any property of the deceased without lawful authority or reasonable excuse. Section 60J of the Probate and Administration Ordinance is relevant. Thus, the family of the decedent or any persons entitled to administer the estate may not take possession of or administer any part of the estate unless he/she has obtained a grant for the administration of the estate from the Probate Registry of the High Court of Hong Kong. For instance, even if the decedent’s bank account is accessible (e. g. the password to the bank account of the decedent is known), it is an offence for any person to take possession of the estate, only the authorized executor or administrator is entitled to deal with the deceased’s estate.
Under Hong Kong laws, in order to administer the estate of the Deceased, a Grant shall be obtained first.
A grant is commonly known as the “undertaker paper? It includes Probate and Letters of Administration, both of them are court orders. The court authorize the executor to administer the Deceased’s estate according to the directions in the Will; or the court authorized the administrator to administer the Deceased’s estate in accordance with the law.
If the Deceased left a Will and appointed the executor, the executor shall apply to the court for probate, the court will authorize the executor to administer the Deceased’s estate.
If the Deceased is intestate, or no executor is appointed in the Will, or no executor in the Will is able or willing to act for whatever reasons, the court will appoint a person to act as administrator and authorize him/her a Letters of Administration according to the order of the priority of persons entitled to the application of administration of the Deceased’s estate.
Rule 21 of the Non-contentious Probate Rules (Cap.10A) governs the order of priority for different persons to make the application for Grant. In simple words, the order of priority is:
- Spouse,
- The child or children of the Deceased,
- The father and/or mother of the Deceased,
- The brother and/or sister of the Deceased.
- Statutory Inheritance
Article 4 of the Intestates Estates Ordinance (Cap. 73) provides the succession to estate on intestacy as follows:
(1)
|
If the intestate leaves a spouse, but without leaving any issue, parent of sibling, the surviving spouse will be entitled to all the residuary estate (meaning the assets after paying all debt or other liabilities).
|
(2)
|
If the intestate leaves both spouse and issues, the surviving spouse will be entitled to all the personal chattels left by the deceased and a sum of HKD 500,000 and then a half of the remaining estate, and the issues shall be entitled to the other half of the remaining estate in equal shares.
|
(3)
|
If the intestate leaves issues but no spouse, the surviving issues will be entitled to all the estate.
|
(4)
|
If the intestate leaves no issue but leaving spouse and parent, the surviving spouse will be entitled to be distributed with all the personal chattels left by the deceased and a sum of HKD1,000,000 and then a half of the remaining estate, and the parents shall be entitled to the other half of the remaining estate.
|
(5)
|
If the intestate leaves no spouse and no issue, but leaving parents, the parents shall be entitled to all the estate.
|
(6)
|
If the intestate leaves no spouse, no issue, no parent, but leaving surviving siblings, then the surviving siblings shall be entitled to all estate.
|
- Procedures for Applying to be the Administrator
The documents normally required for an application for a Letters of Administration include:
(1)
|
An affirmation for an application to become administrator.
|
(2)
|
Evidence supporting the above application includes the death certificate of the deceased, the applicant’s identity document, documents proving the relationship between the deceased and the applicant.
|
(3)
|
If the deceased is domiciled outside Hong Kong, an separate ex parte application by way of affirmation is also required to state that the basis of the application.
|
(4)
|
If the deceased is domiciled outside Hong Kong, a legal affirmation from a lawyer of the place of the deceased’s domicile place may be required to prove that the applicant is a person entitled to administer the deceased’s estate under the law of the deceased’s domiciled place.
|
(5)
|
If the applicant is a person not ordinarily residing in Hong Kong, the court will also require the applicant to provide surety guarantee to ensure that after he/she is appointed as the administrator of the estate, he or she will not damage the interest of other people such as other inheritors or creditors of the estate.
|
- The legal Process of Applying to be Executor of a Will
An application for probate to the court requires the submission of the following documents:
(1)
|
An original copy of the Will;
|
(2)
|
An application by way of affidavit to apply for a probate of the Will;
|
(3)
|
If the Will is not witnessed by a practicing solicitor in Hong Kong, the court will usually requires affidavit evidence made by the testamentary witness stating the circumstances under which he has witnessed the signing of the Will by the deceased;
|
(4)
|
Applicant’s identification documents.
|
- How long will it take for a Grant to be issued?
A Grant will be issued once you have met all legal requirements and answered all requisitions to the satisfaction of the Registrar. The length of time required varies from on e case to another. For simple and straightforward case, it usually takes about 5 to 7 weeks on average. However if the nature of the estate is complicated, the length of time required may be longer.
|
