One point to note is that for those adopted children (i.e. they have been adopted by persons through a legal adoption process), they have the same status as the natural children. If the deceased parent had a Will and he gave “his children” a gift or a sum of money to share, the illegitimate children were not entitled to share in the gift. Before the 19th June 1993, illegitimate children were not entitled to succeed to their deceased father’s estate if their father died intestate (without a Will).
- It is a gift of something the testator owns at the date he makes his will.
- Your domicile as at the date of death can have implications on the disposition of estate in your Will.
- 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.
- Generally speaking, every person has “free testamentary capacity”.
- You may refrain from committing acts which may lead the Court to consider you unsuitable for appointment as an executor.
- 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.
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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.
- It is a criminal offence to refuse or, without reasonable excuse, omit to register a death as required by law punishable by a fine of HK$2,000 or up to 6 months’ imprisonment.
- The surviving spouse can make this request in writing to the personal representative within 12 months after the first taking out of representation.
- 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.
- For instance, the testator executed the will under threats.
- 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.
What can be done if the Will is found after the Letters of Administration is granted?
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.
Duty of Not to Waste and Duty as a Fiduciary
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 forzabet 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?
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.
More likely than not, his application would either fail or succeed only to a limited extent. Being an able-bodied adult, the son’s chance of a successful application for maintenance is much lower. The deceased therefore made a will giving all his assets to his brother and his 2 nephews instead.
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.
If a person (other than the executor) keeps the Will and refuses to give it to the executor, what can the executor do?
In such a case, the Judge may make an order for a grant contrary to the terms in the will. The executor will then be required to accept or renounce his executorship. S.25 of the Probate and Administration Ordinance (Cap. 10) governs the number of grantees to be allowed. (ii) any residuary legatee or devisee holding in trust for any other person;
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.
For instance, false representation was made to the testator and relied by the testator to execute the will, clauses were inserted in the will before it is signed without the testator’s knowledge. Where the testator executed a will that he did not know or approve because of one’s deceptive behaviour, the Court may find that the will was invalid on the ground of fraud. However, those who allege must prove and the Court requires evidence of such undue influence or coercion, rather than speculation of what the testator had or had not done or should or should not do.
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.
Powers of the Personal Representatives in Dealing with the Assets
A man could have made a Will that left everything to his legitimate children with no provision for his surviving wife or illegitimate child whom he had been maintaining before his death. Even if the intention of the testator is clearly stated in the Will, it may still be challenged. Late application will not be entertained at all unless with exceptional reasons. This includes ex-spouse, lover, adult child, godchild or even parents and siblings who were so maintained before the deceased’s demise.
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.
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.
