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;
- But the personal representative must act honestly on the timing of distribution and must not postpone unreasonably.
- 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.
- 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.
- Illegitimate children could succeed to their mother’s estate on her intestacy, but only when there were no surviving legitimate children.
- The information available at the Community Legal Information Centre (CLIC) is for preliminary reference only and should NOT be considered as legal advice.
- 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.
- If the executor fails to appear or prosecute his application for a grant within the time limit, you may apply by inter-partes summons returnable to the Registrar for the appropriate order.
If there are two personal representatives, can one of them deal with the estate alone?
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 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.
Revocation of grants
If a Will is found, the Holder (if he/she is the named executor) can take the Will away after making a copy of the same and placing the copy in the safe deposit box. For more information regarding the application procedure, please refer to the website of the Home Affairs Department. With effect from 1st April 2007, the Secretary for Home and Youth Affairs has delegated his power as regards access, inspection and inventory taking of a deceased person’ safe deposit box to the Director of Home Affairs. The deceased’s family members or legal representative must check carefully to see if the deceased had made a Will (or whether the Will on hand is the latest/last Will or not). Whether or not a Will is left by the deceased would affect the application procedure for the Grant of Representation. If the applicant discovers additional assets which have not been included in the verifying affirmation, the applicant should file a Corrective Affirmation/Affidavit verifying the Additional Schedule of Assets and Liabilities (Before Grant).
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.
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.
- The Court generally views that an insolvent person is unsuitable to be appointed an executor.
- Son C may apply for maintenance and has a good chance to get a larger share than 1/3.
- 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.
- 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).
- Simply speaking, the estate duty payable is a percentage of the value of the estate.
Duty of Not to Waste and Duty as a Fiduciary
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.
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 forzabet 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.
Powers of the Personal Representatives in Dealing with the Assets
Under the will in the instant scenario, the grandmother’s estate was to be distributed among A, B and C equally. For both (1) & (2), A and B will take 1/3 each, and D and E will take C’s 1/3 share evenly (i.e. D and E will each take 1/6 of the estate of the grandmother). If you have doubt about the form or substance of such deed, seek legal advice.
If the executor resides out of Hong Kong and refuses to assume the office, how can he renounce the right to probate?
When making a Will, it is advisable for special trust provisions to be arranged for a beneficiary who is a disabled. If no provision is made in a Will and a common disaster occurred rendering it uncertain which spouse survives the other, then the younger is deemed to have survived the elder. If the Will is silent on this matter, these properties will fall into the residue of the estate and will be sold, with the proceeds forming part of the cash residue. For example, if the deceased has two flats (one of them in Hong Kong and the other is situated outside Hong Kong), then the foreign property will not be included in the estate in respect of the Grant of Representation in Hong Kong. On the other hand, the law governing disposition of land/flats (real estate) which are “immovable” is the law where the land/flats are located. The law in some countries (but not in Hong Kong) requires that you must leave a certain proportion of your estate to your children or widow.
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
Can a surviving spouse acquire the matrimonial property owned by the intestate?
For more information regarding the distribution of estate, please go to the “case illustration”. In other words, they shall be treated as the children of the adopter but not the children of any other persons. Illegitimate children could succeed to their mother’s estate on her intestacy, but only when there were no surviving legitimate children. For details of legal marriage, please go to the topic of “Matrimonial Matters”.
However, if the will does not include a proper attestation clause, an affidavit of due execution should be filed (Form W3.1) at the time of the application (see r.10 of Non-Contentious Probate Rules (Cap.10)). Usually no requisition is raised about the proof of the sound mind of the testator if the will was executed before solicitors, clerks or doctors. Documents in support of the application (for a Grant of Letters of Administration) The above documents must be lodged together with the documents listed in the section “Documents in support of the application” (see below) with the Probate Registry. The applicant has to sign that document and swear for the truthfulness of its content in front of a solicitor or a court officer. The Court generally views that an insolvent person is unsuitable to be appointed an administrator.
Unless you are a person with privileged status (e.g. a soldier on actual military service, or a sailor), you cannot make an oral will. This is discussed in the section “Distribution of estate to the relevant parties”. For those without a Will, they are called “intestate”.