As a Hong Kong solicitor in the practice of probate and inheritance in Hong Kong, I have often received inquiry from overseas Chinese from Australia, Canada, USA, UK, etc regarding how to inherit deceased’s estate left in Hong Kong. I hereby provide a summary of the information below.
Overseas Chinese to inherit estate in Hong Kong – A Grant of Probate or a Grant of Letters of Administration will have to be obtained
It is a criminal offence under the Probate and Administration Ordinance to administer or deal with any property of a person who died on or after 11 February 2006 without lawful authority or reasonable excuse. Thus, the family of the deceased or any persons entitled to administer the estate may not take possession of or administer any part of the estate unless he/she has obtained a grant for the administration of the estate from the Probate Registry of the High Court of Hong Kong. For example, even if the deceased’s bank account is accessible (e.g.the password to the bank account of the deceased is known), it is an offence for any person to take possession of the estate without first obtaining a grant from the Probate Registry.
The deceased’s place of domicile – An important question
Before starting an application for grant of probate in Hong Kong, the preliminary issue to be considered is the deceased’s place of domicile. In other words, the country/place where the deceased considered as his/her permanent home. A place of domicile is usually the country where the deceased were born. However, the place of domicile may change if someone migrated and has obtained a citizenship/residence right from a different country. When deciding on the deceased’s place of domicile, these factors should also be taken into account:
- the issuing country of deceased’s passport; and
- the place where the deceased ordinarily lived before his demise.
It is important to identify the deceased’s place of domicile because the law of the deceased’s domicile place will apply to decide who are the persons entitled to the estate of the deceased as well as who is entitled to apply for grant from the Probate Registry of Hong Kong.
Estate left in several countries : in which country to handle the inheritance matter first
If the deceased passed away while domiciled outside of Hong Kong in another common law country, e.g. Canada, United Kingdom, Australia, Singapore etc., we generally advise our client to consider applying for a grant at the place of the deceased’s domicile place first before applying for a probate or re-sealing of probate in Hong Kong. This is because the application procedure in Hong Kong will be simpler after a grant have already be granted in the deceased’ domicile place.
If the deceased passed away while domiciled outside of Hong Kong in a civil law country, e.g. Mainland China, Taiwan, Japan etc., then whether a grant obtained in the deceased’s domicile place is not much relevant to the application of a grant in Hong Kong. We generally advise our client to apply for a grant from both the Probate Registry of Hong Kong and the country where the deceased was domiciled at the same time.
Ways of applying for a Grant with the Probate Registry in Hong Kong
(A) Re-sealing, meaning application to the court of HKSAR to acknowledge a grant issued by a foreign court.
(B) Probate, meaning the the application for a grant in cases where there is a valid will left by the deceased.
(C) Letter of Administration, meaning the application for a grant where the deceased died intestate (without leaving any valid will)
Proof of law of the foreign Jurisdictions
(A) Legal Opinion, meaning to provide a legal opinion issued by lawyer of the foreign country to prove the law of the foreign country.
(B) If a grant from the court of the place where the deceased was domiciled has already been obtained, then no letter of legal opinion is required for the application in Hong Kong.
Contentious Probate Cases and Litigation
Based on our experience, most contentious probate cases are disputed on the grounds of:
(A) the validity of the Will;
(B) the order of priority for application and the manner of distribution of the assets of the deceased; and
(C) the claims made for a share of the estate as the provision of maintenance.
Possible legal means that can be adopted:
(A) Beneficiary/administrator should make a claim to the court at the earliest opportunity;
(B) File a caveat at the Probate Registry to prevent the proposed executor or administrators of the deceased from getting permission to administer the assets; and
(C) Bring a legal action against the other parties if you believe yourself is one of the beneficiaries.
Estate of the deceased left in both Hong Kong and Mainland China
If the estate of the deceased is left in both Hong Kong and Mainland China, the families of the deceased should consult both Hong Kong and PRC lawyers for the inheritance of estate in both places.
Our firm YAN LAWYERS has lawyers with qualifications and experiences in the field of probate/inheritance in both Hong Kong and the Mainland China, such that our clients may enjoy the advantages of a one-station of legal service in inheriting the estate in both PRC and Hong Kong .
Should you have any questions concerning probates /inheritance of estate in Hong Kong and/or the Mainland Chinese, please feel free to contact our Inheritance and Probate legal team at (+852) 3188 1995 or by email to [email protected]