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 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 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.
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.
Revocation of grants
For forzabet 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.
- For example, a trustee or a guardian may be appointed to monitor the assets inherited by the disabled.
- You may wish to make specific gifts of money, shares, or real estate to certain persons or charities.
- An example of a debt incurred after death is the management fee of a property that is owned by the deceased.
- An application shall be made within 6 months since the first grant of representation, otherwise, leave of the Court must be obtained.
- In such a case, the Judge may make an order for a grant contrary to the terms in the will.
- 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 there are two personal representatives, can one of them deal with the estate alone?
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 a person (other than the executor) keeps the Will and refuses to give it to the executor, what can the executor do?
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.
Grant de bonis non
For deaths before 15 th July 2005 , estate duty remains payable. Before the abolition of estate duty on 11 th February 2006 , “Estate Duty Clearance” (evidencing the required duty has been paid) needs to be obtained before an application can be made for a Grant of Representation. In practice, it would be of less significance as the beneficiaries ranking in priority under intestacy, being the surviving spouse and children of the deceased, would generally be the persons expecting financial provisions from the deceased’s estate. You should consider appointing a person to act as guardian (to have legal custody) of any children who are minors (below the age of 18) at the time of your death. Discretionary powers will therefore be given to the executor to distribute as much of the income and/or capital for the benefit of the child as the executor sees fit before the child can formally receive all the assets.
- S.33 of the Probate and Administration Ordinance (Cap. 10) set out circumstances where the grant “ought not to have been granted or contains an error” , then the court can revoke it.
- It is possible to revoke a grant of probate or administration if there is a valid reason, and a new grant can be issued instead.
- The citation and verifying affidavit must be personally served (r.45(4)).
- If the will is lost, the grant made is limited until the original or a more authentic copy is proved.
- In default of any such person it shall be granted to the Official Administrator.
- 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.
The testator does not necessarily own a general gift at the date of death. He must own the specific gift at the time of his death in order to pass the gift to the designated beneficiary. Therefore, if a person leaves a Will after the death, he or she is said to have died “testate”.
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.
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;
Ademption happens when a specific gift under a will no longer exists at the time of the deceased’s demise. There are many circumstances 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.
There are three stages in relation to the implementation of the abolition of estate duty. Simply speaking, the estate duty payable is a percentage of the value of the estate. In theory, the scope of the Inheritance (Provision for Family and Dependants) Ordinance also covers the case of a person who died intestate (without leaving a Will).