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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). If the estate is insolvent, the personal representative must take extra care. The personal representative has to take reasonable steps to make sure that there is no outstanding debt owed by the estate before distribution. When there is a dispute between persons entitled to a Grant in the same degree (i.e. they are all equally entitled to apply for the Grant), an application has to be made to the High Court to determine who will be appointed as administrators.

If the deceased made no Will, how can the relevant estate be distributed?

The beneficiaries of an estate may come up with an agreement as to how the estate be distributed. For more information about the distribution of estate under the law of intestacy, please see “If the deceased made no will, how can the relevant estate be distributed” and “What if there are no beneficiaries to distribute to? In such circumstances, the entitlement will go to the residuary estate and be distributed according to the will and/or intestacy laws, as may be applicable. A person will not be forced to take up if he or she does not want to. If the matrimonial property is worth more than his/her share under intestacy, he/she may pay the shortfall to the estate in return for the whole of the matrimonial property. If he/she profit himself/herself from the estate, e.g. use the estate’s money to invest for his/her own profit, he/she will liable to account for the profit so earned.

• One half will be distributed to the surviving spouse and the other half will be divided equally amongst the child/children 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).
• But in general it may be advisable to wait and see if there is any outstanding claim against the estate for a period of 12 months from the deceased’s demise (the so-called “executor’s year”) before full distribution is effected.
• It may take months or, in complicated cases, more than a year to obtain grant.
• For legal reasons, it is advisable to put the agreement in a deed and have every beneficiary sign it.

Preliminary issues to be considered (with or without a Will)

How to distribute the remaining estate in the will; and7. Basic information at the beginning of the will, such as the date of creation and description of the testator;2. For more information on probate, please visit Probate。 If in doubt, you are strongly advised to seek legal advice. The teenage daughters may apply for maintenance and have a good chance to get more than what they get under intestacy laws. 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). 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.

What happen if the value of the estate exceeds $50,000 but does not exceed $150,000?

One of the main functions of a Will is to provide instructions for distributing the estate according to the intention of the testator (person making the Will, i.e. the deceased). Any person who, immediately before the death of the deceased, was being maintained either wholly or substantially by the deceased may apply. In other words, even if the deceased leaves behind substantial assets in Hong Kong, the captioned ordinance remains inapplicable if the above domicile/residence requirement is not satisfied. Generally speaking, only documents relevant to an application for a Grant of Representation, or personal items relating to a person other than the deceased and urgently required by that person, can be removed. For deaths between 15 th July 2005 and 10 th February 2006 , the Applicant still needs to follow the old practice to obtain estate duty clearance. The applicant for a Grant of Probate or Letters of Administration ("the Applicant") should follow the old practice to obtain estate duty clearance before lodging an application to the High Court for a Grant of Representation. 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.

Administration of Estate

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.

• 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?
• For other pension schemes, you need to refer to the scheme documents and contact the person-in-charge accordingly.
• A personal representative needs to register the grant of representation at the Land Registry before he/she can effectively deal with the property.
• It is for the executor named in the Will or the intended administrator to take that inventory.
• One exception is that the specific gift changes in form only.
• But if the beneficiary is a descendent of the deceased, then the gift will go to the issue of that deceased beneficiary under s.23 of the Wills Ordinance (Cap. 30).
• For those without a Will, they are called "intestate".

(b) a firm (The appointment will typically be considered valid for those individuals who were partners in the firm at the time the will was executed, rather than at the time of the testator's death.). The Court generally views that an insolvent person is less desirable to be appointed an executor. The applicable ground is that a grant had been obtained by a false or incorrect statement because a will has been discovered after a grant of administration. A citation is used to force some action or step in relation to the taking of the grant to the estate.

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

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.

Abolition of Estate Duty and the procedures for applying for a Grant of Representation

54 of Non-Contentious Probate Rules (Cap. 10A), an application for an order for a grant of special administration under section 37 of the Ordinance where a forzabet personal representative is residing outside Hong Kong shall be made to the court on motion. A personal representative has a duty to administer the assets of the estate according to the law with due diligence. E.g. if the beneficiaries consider the personal representative having unduly initiated or defended a legal action, they may ask the court not to allow the representative to be reimbursed from the estate for the legal costs. Please also note that a death certificate is generally needed to support an application for a grant of personal representation of the estate of the deceased. 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. The personal representative of the deceased grantee should first apply for a ‘leading grant’ in the estate of the deceased grantee before applying for the grant de bonis non. 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. Instead, he may apply for an order admitting proof of other evidence of its contents can be made to the Registrar under r.53 of Non-Contentious Probate Rules (Cap. 10A). If the testator has publicized the existence of his Will during his lifetime, the applicant may not be able to swear to the intestacy of the deceased. We must prove that the potential administrators are clearly unsuitable e.g. they refuse to apply for the Letters of Administration or that it is more convenient to do so. 3 of the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481) and might have beneficial interest in the estate. However, my father and I may have beneficial interest in the estate by virtue of s. Therefore, the deceased’s siblings have immediate beneficial interest in the estate, but my father and I do not have immediate beneficial interest in the estate. In default of any such person it shall be granted to the Official Administrator. The citation and verifying affidavit must be personally served (r.45(4)). In the given scenario, he can clear off all person with prior entitlement to a grant by a Citation. For a person who died on or after 11 th February 2006 , the relevant application fee is $265 and the fee for engrossment of a Grant is $72. Administration shall not be granted to more than four persons in respect of the same property.