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Factors to be considered when appointing an executor to manage the estate;5. Declaration of the testator’s domicile and its impact on the settlement of the estate;4. The wife may apply for maintenance and she has a good chance to be given a substantive share from the estate. You may make an application under section 7 of the Probate and Administration Ordinance (Cap 10) to compel the executor to so disclose. This is especially so for an executor, for his duty and power comes from the will directly.

• When the grantee himself has died without fully administering the estate of the deceased, unless there is a chain of executorship, a further or a new grant is required to appoint a personal representative in respect of the unadministered estate.
• The deceased died intestate recently and her husband emerges out of nowhere asking for his share from the estate (i.e. more than 1/2).
• Where a personal representative is residing abroad, an application can be made for a grant of special administration if no previous grant has been made.
• Where the residue is not wholly disposed of by the will, any person entitled to share in the residue
• 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).
• Lapse happens when the intended beneficiary under the will dies before the deceased.

Powers of the Personal Representatives in Dealing with the Assets

You may refrain from committing acts which may lead the Court to consider you unsuitable for appointment as an executor. There are few limitations in relation to the choice of an executor. The designated executor always has the option to renounce. 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.

What happens to a will that does not follow the legal requirement?

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.
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 forzabet 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.
There are a number of situations in which a gift under a will is said to have failed, i.e. the beneficiary cannot get what the will intends to give him/her. Other than exceptions such as above, a beneficiary of the estate generally does not have the right to insist on keeping a particular asset unsold. Exceptions include specific gift under a will (i.e. the deceased gave a specific asset to a specific beneficiary). 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. Please refer to the section about “capacity of an executor”. For an estate more than $150,000, follow the usual procedure for obtaining a grant.

When and how can the executor/administrator remove the items inside the deceased’s safe deposit box at a bank?

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;

Probate Series Episode 1: Law of Succession: Making a Will

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.
When the grantee himself has died without fully administering the estate of the deceased, unless there is a chain of executorship, a further or a new grant is required to appoint a personal representative in respect of the unadministered estate. If the personal representative is ordered by court to pay the opposing party legal costs, the opposing party may enforce the costs against the personal representative personally. In appropriate cases, the beneficiary may also apply to Court for the removal of the personal representative and for a replacement administrator to be appointed instead. The beneficiary may commence an administration action to compel the personal representative to do his/her work properly. 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.
If the deceased died testate (i.e. he/she had made a Will appointing an executor), the executor is the only person who is entitled to apply for a Grant of Probate of the Will. Whilst the personal representative may seek to be reimbursed by the estate his/her costs or the opponent’s costs that he/she is ordered to pay, the beneficiaries may oppose on the ground that the personal representative have unreasonably initiated or defended the claim. There is no objection for the intended personal representative to repay the debt out of pocket first, and be reimbursed by the estate subsequently. The surviving spouse can make this request in writing to the personal representative within 12 months after the first taking out of representation.

Payment of Debts and Funeral Expenses

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.
Details of the application procedure can be viewed from the website of the Home Affairs Department (Estate Beneficiaries Support Services). For deaths on or after 11th February 2006, the Applicant should follow the new procedure and arrangement which will be described in Procedures. However, the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481 of the laws of Hong Kong) empowers the Court to make orders that provisions be made out of the deceased’s estate for certain members of the deceased’s family and dependants. That means people can, by Will, leave their assets to whomever they wish. The guardian cannot however displace the rights of a surviving legal parent. For example, a trustee or a guardian may be appointed to monitor the assets inherited by the disabled.

• The designated executor always has the option to renounce.
• 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.
• It is advisable to seek legal advice as soon as possible.
• 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.
• If in doubt, you are strongly advised to seek legal advice.
• You may apply for the issuance of a citation by the Probate Registry to the executor under s.30(1) of Probate and Administration Ordinance (Cap. 10).
• Any aggrieved party may bring legal action against the executor to contest the validity of the deceased’s Will.

It permits a separate document that has not been executed in compliance with s.5(1) of Wills Ordinance (Cap. 30) to be included as part of the will and be accepted for probate. Under s.23A of the Wills Ordinance (Cap. 30), the Court has the power to rectify a will if the will fails to carry out the testator’s intention due to a clerical mistake or a failure to comprehend his instructions. To prevent such issues, the testator can include a provision in the receipt clause that specifies the receipt should only be given by an individual who appears to be the treasurer or another suitable officer of the organisation.
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.
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.
For instance, the testator executed the will under threats. 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. For example, a clause is inserted in the Will stating that the subsequent marriage with a named person shall not revoke the Will. Usually a person has to take action to revoke his/her own Will. No matter whether or not the deceased has made a Will, generally a Grant of Representation will have to be obtained from the Probate Registry of the High Court of the Hong Kong Special Administrative Region before any of the deceased’s assets in Hong Kong can be dealt with.