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The High Court also has the power to appoint a person who is not in the above hierarchy to administer the estate. This Personal Representative has the authority to deal with the deceased’s estate, such as to manage and distribute the relevant assets to the beneficiaries. Whilst a Grant of Letters of Administration is a Grant given to an administrator who is the next-of-kin (e.g. the deceased’s spouse, child or parent, etc.) where there is no Will, or where no executor has been appointed in the Will. A Grant of Probate is a Grant given to the executor (or executrix, in case of a female) named in the last Will of the deceased person.

• Otherwise, the administration shall generally be granted to the Official Administrator under r.21(3) of Non-Contentious Probate Rules (Cap. 10A).
• Where the original will is lost, mislaid, or not available, and when an applicant is applying to admit a copy, a rebuttable presumption of revocation arises.
• There is no objection for the intended personal representative to repay the debt out of pocket first, and be reimbursed by the estate subsequently.
• When beneficiaries are recognized through a general or collective formula, typically based on their relationship rather than by name, a gift is considered to be to a class.
• Only if the deceased has no issue can the parents and siblings have a share in the deceased’s estate, even if his/her spouse survives .

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.
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 forzabet 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.

Can the executor/administrator initiate a litigation to recover assets of the 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.
An application should be made for an order to revoke the Letters of Administration under s.33 of Probate and Administration Ordinance (Cap. 10). However, a caveat can be renewed repeatedly every six months, potentially impacting the estate for many years. If all required documents are in order, the application should be submitted as soon as possible. The grant made is limited until the original or a more authentic copy is proved.

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

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).
Son C may apply for maintenance and has a good chance to get a larger share than 1/3. The deceased died intestate, meaning that Sons A, B and C are to inherit 1/3 of the estate each under laws of intestacy. Physically handicapped though he is, Son C has been a loving and caring son to the deceased. Son C, however, is physically handicapped and is earning minimum wages all along.
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.

If there are two personal representatives, can one of them deal with the estate alone?

If a gift is given to an unincorporated association, all members of that association receive that gift. The testator must check and confirm the name, address and the charitable status of the charity. Unless the executor is a professional executor, serving as an executor is an unpaid position. However, if the testator intends to benefit natural and legitimate children only, they must clearly express this in the will. Such a gift is intended for a group of beneficiaries rather than for individual recipient(s). When beneficiaries are recognized through a general or collective formula, typically based on their relationship rather than by name, a gift is considered to be to a class.

What if the estate includes a business?

A personal representative has the duty to account to the beneficiaries for the estate. Generally speaking, a personal representative has the powers to sell the assets of the estate for the purpose of paying debts or expenses of the estate or for the purpose of distribution. Likewise, a personal representative has the powers to defend the estate in a legal action and to reach settlement with the claimant. In particular, a person representative has the power to commence legal proceedings to collect assets for the estate, including but not limited to obtain a freezing order against the party holding the assets so that that party cannot dispose of those assets until court order.
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

You should apply to the Official Administrator for the exercise of his power to get in and administer the estate. A testator may contact the in-house lawyer of the NGO and inquire if the NGO is willing to act as an executor. Therefore, a testator may ask the proposed executor in advance to see whether he or she is willing to act.
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.

• 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.
• For more details about death registration, please visit the Immigration Department’s website.
• 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.
• Son C, however, is physically handicapped and is earning minimum wages all along.
• 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.
• (vi) any legatee or devisee, whether residuary or specific, entitled on the happening of any contingency, or any person having no interest under the will of the deceased who would have been entitled to a grant if the deceased had died wholly intestate.
• A’s wife is alive but refused to apply for Letters of Administration.

One major difference between an executor and an administrator The maximum number of administrators (or adminstratrix in case of a female) of an estate is four . A “Personal Representative” is a general term for either an executor or an administrator.
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.