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).
Grant of Probate
If the wife insists that she should get more from the estate than what the laws of intestacy stipulates, she may make an application under Inheritance (Provision for Families and Dependents) Ordinance (Cap. 481). 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. For legal reasons, it is advisable to put the agreement in a deed and have every beneficiary sign it. 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. Exceptions include where the will expressly providing so, e.g. by way of a gift if the executor is a family member.
Is there a time limit for the distribution of the estate?
Ademption happens when a specific gift under a will no longer exists at the time of the deceased’s demise. There are many circumstances forzabet under which the representative may postpone full distribution such as ongoing claim by a third party claimant against the estate. If the matrimonial property is worth more than his/her share under intestacy, he or she may pay the shortfall to the estate in return for the whole of the matrimonial property.
Book traversal links for The estate agents’ services (with an overview of the sale and purchase procedures)
- 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.
- A grant de bonis non may be made to any person who is equally entitled as the previous grantee.
- For example, if you were to declare that all your estate goes 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.
- 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 such case, the specific gift under the will have to be used to pay off those expenses and the debts too and the beneficiary will not be able to get that gift.
- The guardian cannot however displace the rights of a surviving legal parent.
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).
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;
Inheritance (Provision for Families and Dependants) Ordinance
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 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.
- Unless the executor is a professional executor, serving as an executor is an unpaid position.
- It applies only to a deceased who is domiciled in Hong Kong or has been ordinarily resident in Hong Kong at any time in the 3 years immediately preceding his death.
- If, however, the deceased leaves behind assets in the Mainland, the intended personal representative may need to seek the Mainland legal advice as to those assets.
- If the executor does not wish to take up the appointment, or if no executor appointed by the deceased survives, then the person entitled to the residuary legacy in the Will has priority to apply for a Grant of Letters of Administration (with the relevant Will annexed).
- All debts have to be ascertained and paid, or provisions for payment must be made, before the estate is distributed to the beneficiaries.
- 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.
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.
Only if the deceased has no issue can the parents and siblings have a share in the deceased’s estate, even if his/her spouse survives . The order of priority under the law relating to the entitlement of the deceased’s estate is similar to the order relating to the eligibility to apply for a Grant of Letters of Administration (please refer to the relevant question and answer). How can this executor balance his/her duty to make the requisite inquiries on behalf of the granddaughter and yet maintain a harmonious relationship with the deceased’s other family members?
In general, the court makes a grant of letters of administration to the person(s) whom it considers will most effectively administer the estate. A valid receipt releases personal representatives from their duty to distribute estate. Estate Duty is charged on the total value of all properties situated in Hong Kong (including all personal assets and real estate) which “pass” (are left behind) or are deemed to pass in connection with a person’s death.
The creditors should go after the estate’s personal representatives (i.e. the executor or the administrator of the deceased’s estate) . If, however, the deceased leaves behind assets in the Mainland, the intended personal representative may need to seek the Mainland legal advice as to those assets. The personal representative’s duty is to distribute the shares of the company to the beneficiaries (if the will so specifically gifts) or to sell the shares and distribute the sale proceeds to the beneficiaries according to will or the laws of intestacy. The personal representative would be personally liable for the said contractual breach or tortious wrong to that third party and, depending on the circumstances, may or may not be entitled to reimbursement by the estate. A personal representative may assume liability towards third party if he/she commits breach of contract in the name of the estate or commit act of negligence in the course of administration. (3) give details of the whereabouts of all properties (including cash) of the estate which the personal representative is duty bound to administer; and
Powers of the Personal Representatives in Dealing with the Assets
In general, a person has the testamentary freedom to decide by his/her will as to how to distribute his/her assets after he/she dies. The way to take inventory is to physically search and ascertain those personal belongings of the deceased. Then, the applicant should follow the application procedure for summary administration or a Grant of Probate/ Letters of Administration (as the case may be). If more assets are found later resulting in the value of the estate exceeding $50,000, the Applicant should notify the Director of Home Affairs and, if a confirmation notice has been issued, return it for cancellation. The holder of the confirmation notice will be exempted from the intermeddling provisions and deal with the estates without any grant. Even if the total value of the estate exceeds $7,500,000, only a $100 nominal estate duty will be charged.
Son C may apply for maintenance and has a good chance to get a larger share than 1/3. The deceased died intestate, meaning that Sons A, B and C are to inherit 1/3 of the estate each under laws of intestacy. Physically handicapped though he is, Son C has been a loving and caring son to the deceased. Son C, however, is physically handicapped and is earning minimum wages all along.
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.