5 April 2021
Managing and administering an estate may be a complex matter and most people are unsure even where to begin. It is hard enough to accept the loss of a loved one. The last thing we want to do is to hurry about in search of key papers and statements, as well as information as to the proper process to handle the estate of your loved one. We see every day the stress this incurs. Here we summarise the usual procedures for obtaining Probate to validate the will and administer an estate. Hopefully this step-by-step guide can act as a starting point which could make this process simpler and more manageable.
Step 1: Registering the Death
After the death you should first register such at the registrar of births and deaths and obtain a death certificate. You will need to produce a medical certificate of the cause of death to obtain the death certificate.
Step 2: Making Funeral Arrangements
After the death certificate has been obtained, you may begin making funeral arrangements.
If there is a will (as further explained below), it is the responsibility of the person named therein as executor(s) to arrange for the funeral. It is possible that the deceased may have indicated his/her wishes in the will as to their preference for burial or cremation. The executor should take into account such wishes when making funeral arrangements.
The expenses incurred in arranging the funeral and disposal of the body is payable from the deceased’s estate. However, it is usually not permitted to deal with the deceased’s assets at this early stage as a has not been obtained from the Probate Registry. Therefore, in practice, the family members of the deceased will pay for such expenses and be reimbursed from the estate after a grant of representation is obtained.
Step 3: Looking for a Will and Inspection of Safe Deposit Box
You should check carefully to see whether the deceased made a will and if there is a will, whether it is the latest will or if it has been subsequently revoked. (This step can be taken earlier so that the deceased’s family members will know whether there is an executor to handle the funeral arrangements.)
You could start by checking the personal documents of the deceased and/or enquiring with the deceased’s other family members. Often, you will also have to check the deceased’s safe deposit box.
To gain access to the safe deposit box, the following individual could make an application to the Director of Home Affairs for a Certificate for Necessity of Inspection of Bank Deposit Box:
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An executor or one of the executors of the deceased;
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A person who is entitled to administer the estate; or
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The surviving renter if the safe deposit box is jointly rented by the deceased with another person.
After the certificate of inspection is obtained, the holder of the certificate should make an appointment with the Secretary for Home Affairs and the bank for inspection of the safe deposit box.
If a will is found in the safe deposit box and the holder of the inspection certificate is named as the executor under the will or the holder is the surviving renter of the safe deposit box, the holder can remove the will after taking a copy and returning the copy to the safe deposit box. The holder should also make an inventory of the contents in the safe deposit box.
If there is no will found or if there is a will but i) the holder of the inspection certificate is not the executor, or ii) there is no executor appointed in the will and the holder is not the surviving renter of the safe deposit box, the bank staff should immediately close the safe deposit box after obtaining a copy of the will (if any) and giving the copy to the public officers.
It should be noted that you should not remove any item, save and except a will (if possible), from the safe deposit box during inspection.
Step 4: Obtaining Grant of Representation
Thereafter, it is usually necessary to obtain a grant of representation in order to deal with the deceased’s assets.
If the deceased passed away with a will appointing an executor, the executor should apply for a Grant of Probate. If the deceased passed away without a valid will (e.g. no will was found or the will has been revoked), persons entitled e.g. wife, children should apply for a Grant of Letters of Administration.
The application for a grant is made to the Probate Registry of the High Court using specific forms supported by relevant documents, including:-
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An affirmation or affidavit by Executor/Administrator;
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An affirmation or affidavit verifying the Schedule of Assets and Liabilities, and the Schedule of Assets and Liabilities of the deceased in Hong Kong as at the date of death, together with other supporting documents (e.g. death certificate of the deceased, will of the deceased, certificate showing the relationship of the applicant and the deceased, filing fees etc.)
After making the application, the Probate Registry may raise requisitions on the application to obtain further information or seek clarification. If the Probate Registry is satisfied with your answers to the requisitions, the grant will be issued.
Step 5: Distribution of the Estate
After the grant of representation is obtained, the personal representative of the estate (i.e. the executor under the will or the administrator appointed if there is no will) will first need to collect the assets of the deceased under the estate and then make payment of the deceased’s debts, funeral and other expenses in relation to the estate. Thereafter, the estate may be distributed accordingly.
If there is no valid will, the administrator should distribute the estate in accordance with the Intestates' Estates Ordinance. The order of entitlement depends on the relationship of the surviving relative with the deceased. (It should be noted that the rule of intestacy only benefits people who have direct blood relations with the deceased and does not benefit unmarried partners, step-children (unless legally adopted) and in-laws.
For example, if the deceased leaves a widow/ widower only but leaves no children, parents or other close relatives, then the surviving spouse is entitled to the whole of the deceased’s residuary estate. Another example is where the deceased leaves a spouse and a child, the surviving spouse is entitled to all of the deceased’s personal chattels, and a sum of HK$500,000 from the residuary estate, thereafter, if there is any remaining asset, it would be divided in half and distributed equally between the surviving spouse and the child of the deceased.
On the other hand, if there is a valid will, the executor should distribute the estate in accordance with the deceased’s wishes under the will. In the event that there is partial intestacy (i.e. where there is a will which does not completely dispose of the deceased’s assets), the Intestates' Estates Ordinance will govern the distribution of those undisposed assets.
Conclusion
The above is only a brief summary of the process of handling one’s post-death matters and dealing with the deceased’s estate. In reality, complications may arise in any stage of obtaining probate and administering the estate. If you have any questions regarding the above or would like to obtain further information on our probate and estate planning services, please contact one of the members of our Probate and Estate Planning team.
For further information, please contact:
Emily Chow, Oldham Li & Nie
emily.chow@oln-law.com
