Inheritance and Probate Litigation in Hong Kong: Questions and Answers
How to resolve a dispute over whether there is a valid will or not?
The party claiming that the will is valid can apply to the court for probate. A party disputing a will may file a memorandum of notice with the court to object to the issuance of a grant of probate. Ultimately, either party can file a probate lawsuit in court, and the court will go through the proceedings to determine whether a valid will exists.
What is a Caveat? What does it do?
A Caveat is a document filed with the Probate Division of the High Court to inform the court of a dispute regarding the estate of a deceased person. Once a estate caveat is filed with the court in relation to the deceased, the court will not issue any grant of estate to any applicant until the person who filed the caveat withdraws the caveat filed or the court makes any order in this regard. For more information on the caveat, please see the article “Notification Memorandum on Hong Kong Estate Dispute Proceedings》
Who has the right to apply for letters of administration in the absence of a will?
In the case where the deceased did not leave a will, the order of priority to apply for a Letter of Administration and become the estate administrator can be found in the article “Priority of application for letters of administration for intestate succession》detailed explanation.
People in the same order of prority to apply for a grant (for example, they are both children of the deceased) want to apply for a grant of estate. How to solve the competition?
Two or more people in the same position of priority (for example, children of the deceased) both want to be the administrator of the estate. In such a case, any person may apply to the court, and the court may decide which one of them (or several persons together) is the most suitable person to serve as the estate administrator, or the court may decide that an independent third party shall act as the estate administrator. For details, please see the article “Inheritance in Hong Kong: What should I do if multiple people apply for inheritance letters separately?》。
If the person who has the priority to apply for the Probate fails to apply in time, what should the person who comes after him do?
If the person with the earlier right of priority fails to apply to the court for a letter of inheritance, then the person with the later right of priority can submit a petition to the court and the person with the earlier right of priority. A person serves a summons (Citation), requiring the person with prior priority to either apply for and receive a letter of inheritance, or to give up the right to apply for a letter of inheritance. If the person with earlier priority does not respond after receiving the summons or responds but fails to apply to the court for a letter of probate in time, the person with subsequent priority can apply to the court to clear it. Priority of the person with earlier priority and granting letters of probate to oneself (the person with later priority).
How can creditors collect debts owed by the deceased after his death?
If the probate court of Hong Kong has issued a letter of probate to the deceased, the creditor can sue the deceased’s estate (who is the representative of the deceased’s estate), and the estate of the deceased will repay the debt to the creditor from the estate of the deceased. If the probate court of Hong Kong has not issued a letter of probate for the deceased, the creditor can first file a lawsuit against the deceased’s estate and serve the lawsuit to the government’s official solicitor (Official Solicitor) to avoid the expiration of the statute of limitations. . The creditor can then appoint an appropriate person (such as one of the persons entitled to inherit the deceased’s estate) to the court to respond as a representative of the deceased’s estate in order to complete the civil proceedings and obtain repayment from the deceased’s estate.
What happens to the debts that the deceased had as a creditor during his lifetime? What happens after the deceased dies?
After obtaining the estate letters of the deceased, the estate administrator should initiate civil proceedings on behalf of the estate of the deceased to recover repayment from the debtor. In exceptional circumstances, an appropriate person may sue on behalf of the estate before letters of probate are obtained, and that person will then need to apply to the court as soon as possible to obtain letters of probate (or obtain court approval to litigate on behalf of the estate).
If the estate administrator does not disclose the details and accounts of the estate to the heirs (beneficiaries), what should the heirs (beneficiaries) do?
The heirs (beneficiaries) can apply to the court and request the court to order the estate administrator to provide each heir (beneficiary) with information such as the inventory, accounts and estate management status of the estate.
If the estate administrator does not distribute the inheritance to the heir (beneficiary), what should the heir (beneficiary) do?
The heirs (beneficiaries) can apply to the court and request the court to order the estate administrator to perform specific estate management actions within a limited time, including dividing the estate among the heirs (beneficiaries).
How attorney charges fees for handling inheritance and probate litigation?
Under normal circumstances, Hong Kong lawyers’ representation in litigation cases (including estate litigation) is charged on an hourly basis based on working hours, and the rates vary according to the qualifications of each lawyer. During the litigation process, if it is necessary to hire a barrister for assistance, the client will also need to pay the barrister’s fees.