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).
Duty of Not to Waste and Duty as a Fiduciary
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. 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. There is no objection for the intended personal representative to repay the debt out of pocket first, and be reimbursed by the estate subsequently. The surviving spouse can make this request in writing to the personal representative within 12 months after the first taking out of representation.
- 3 of the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481) and might have beneficial interest in the estate.
- Usually the executor is a member of the family or a close and trusted friend of the whole family.
- Debts can be incurred both before and after the death of the deceased.
- 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.
- All the other joint tenant(s) need(s) to do is to register the death certificate of the deceased joint tenant.
- 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 a person (other than the executor) keeps the Will and refuses to give it to the executor, what can the executor do?
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.
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.
Probate Series Episode 2: Law of Succession: Common Terms of a Will
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.
- It is a gift of a stated amount of money to a beneficiary.
- A’s wife is alive but refused to apply for Letters of Administration.
- A personal representative has the duty to account to the beneficiaries for the estate.
- You should apply to the Official Administrator for the exercise of his power to get in and administer the estate.
- The holder of the confirmation notice will be exempted from the intermeddling provisions and deal with the estates without any grant.
(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.
Book traversal links for 1. Payment of Debts and Funeral Expenses
The testator should specify whether the employee will only receive the legacy if the employee is still in the testator’s employment at the date of death. In that case, a testator must also specify the conditions in which the executor will receive the legacy, e.g. Therefore, a testator must specify in the will if he wishes to leave the executor a legacy for taking up the role. It is a gift of a stated amount of money to a beneficiary.
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 grant will usually be made to the attorney of the person entitled to the grant. Since grants have not been made in respect of the estates of my father and mother, I must apply for them. A grant de bonis non may be made to any person who is equally entitled as the previous grantee. If he is not entitled under r.21 of Non-Contentious Probate Rules (Cap. 10A), he may apply for the Court to invoke its power under s.36 of Probate and Administration Ordinance (Cap. 10) to pass over a person entitled as an administrator to him.
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.
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
Is there a time limit for the distribution of the estate?
If the executor refuses to take up the appointment, you should use Form C2.2 to call upon the executor to accept or refuse probate under r.46(1) forzabet of the Non-Contentious Probate Rules (Cap. 10A). You may apply for the issuance of a citation by the Probate Registry to the executor under s.30(1) of Probate and Administration Ordinance (Cap. 10). Yes, if the person has an interest in a deceased’s estate.
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.
(1) show the opening balance (including capital assets) and closing balance; 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). 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. Abatement happens when the remaining assets of the estate is not enough to pay off its funeral expenses and debts. In such case, the intended beneficiary will not get that specific gift.
Under ss.21(1) and (2) of Non-Contentious Probate Rules (Cap. 10A), my father and I do not have a beneficial interest in the estate. He must prove that the potential administrator is clearly unsuitable e.g. he is missing or refuses to apply for the Letters of Administration. It ranges from one to four, except where life or minority interests are involved, in which case a minimum of two individuals are required unless the grantee is a trust corporation.
