Inheritance in Hong Kong: Priority of application for estate administrator
The estate representation system for inheritance in Hong Kong
Under the Hong Kong legal system, the inheritance of an estate is based on a representation system, that is, the court appoints a personal representative of the estate (including an executor or an administrator), and the personal representative of the estate performs the duties of managing the estate and distributing the estate. . The process for the court to appoint a personal representative of an estate is the process of applying for a grant of probate.
When the deceased left a will and appointed an executor, the procedure for applying for letters of administration is court certification.The true legal validity of the will, and confirms that the executor named in the will becomes the personal representative of the estate.
In the case where the deceased did not leave a will or although he left a will but did not appoint a legally valid executor, the court will appoint the executor who is first in priority and willing to undertake estate management in accordance with a certain order of priority stipulated by the law. Person as administrator of an estate.
Priority for applying for grant of probate under testamentary succession
If the deceased left a will when he died, according to theUncontested Probate Rules“(Chapter 10A of the Laws of Hong Kong) stipulates that the priority of persons entitled to apply for the administration of the estate of the deceased is:
- executor;
- A residuary legatee who holds a bequest on trust for any other person;
- any residuary legatee benefiting for life;
- The final residuary legatee, or, if the residuary estate is not entirely disposed of by the will, any person entitled to a share in the undisposed residuary estate;
- any particular legatee or any creditor, or where the estate is not entirely disposed of by the will, any person who may be beneficially interested by an addition to the estate (notwithstanding that the amount of the estate is such that he has no immediate interest in it) beneficial interests);
- Any legatee entitled to a residuary or specific bequest on the occurrence of any event to be determined, or any person not interested under the will of the deceased who would have been entitled to a grant if the deceased had died entirely intestate.
Priority for applying for Letters of Administration under intestate succession
according to”Uncontested Probate Rules” (Chapter 10A of the Laws of Hong Kong), the order of priority for applying for letters of administration under Hong Kong law is: –
- the spouse of the deceased;
- children of the deceased;
- The father and mother of the deceased;
- brothers and sisters of the deceased;
- grandparents of the deceased;
- Uncles, uncles, uncles, aunts and uncles of the deceased;
In the above order, as long as any person in the earlier order is alive and has not given up the qualification to apply for a letter of estate administration, the person in the later order has no right to apply to be the estate administrator.
The above priority order for applying for letters of administration under intestate succession shall apply to the inheritance of the deceased’s estate and Hong Kong law shall be the governing law. Specifically, two situations are included in the case of intestate succession:
- The deceased had Hong Kong as his domicile at the time of his death;
- Although the deceased was not domiciled in Hong Kong when he died, his estate in Hong Kong was mainly real estate;
This is because, under Hong Kong’s conflict of laws rules, the order of administrators, in the event of an intestacy, is governed by the law of the deceased’s domicile at the time of death. If the deceased was domiciled in Hong Kong at the time of his death, Hong Kong law should be used as the basis for determining the priority of the estate administrator. On the other hand, according to the conflict of laws principle of “the law of the place where the real estate is located shall apply to real estate”, in the case of intestacy, even if the deceased was not domiciled in Hong Kong at the time of death, but the estate in Hong Kong is mainly real estate, Hong Kong law should also be applied as Basis for determining estate administrator priorities.
When the deceased’s domicile is outside Hong Kong and the estate is mainly movables
If the deceased’s place of domicile at the time of death is not Hong Kong and the estate is mainly movables, then according to the above conflict of laws principle that the order of estate administrators is determined based on the law of the place of domicile of the deceased at the time of death (rather than Hong Kong law), the estate administrator should The law of the deceased’s place of domicile, i.e. the legal provisions of a foreign country, shall be applied to determine who has the priority to apply for letters of administration. In this regard, according to theUncontested Probate Rules“(Chapter 10A of the Laws of Hong Kong) stipulates that the persons entitled to receive a grant of estate are:
- A person appointed by a court having jurisdiction over the place where the deceased was domiciled at the time of his death to administer the estate;
- A person entitled to administer the estate under the law of the place where the deceased was domiciled at the time of his death;
- if there is no person mentioned in paragraphs (a) and (b) of this section or such person as the Registrar may direct if the Registrar considers the circumstances so require;
This is because the courts in Hong Kong do not understand and are familiar with foreign laws. If the court in the place of domicile of the deceased has issued a letter of administration for the estate of the deceased in the place of domicile and appointed someone as the estate administrator, the court in Hong Kong will Reliance may be placed on the determination of the court in the place of domicile of the deceased as a basis for determining that the person is responsible for the administration of the estate of the deceased in accordance with the laws of the place of domicile of the deceased. In this case, the applicant applying for letters of administration in the Hong Kong court needs to provide a court-sealed certified copy of the letters of administration issued by the court at the place of residence of the deceased as evidence.
If the court in the deceased’s place of domicile has not issued a letter of administration to anyone in the deceased’s place of domicile, the applicant applying for a letter of administration in the Hong Kong court will need to submit a letter of administration issued by a lawyer in the deceased’s place of domicile.Inheritance Legal Affidavit(i.e. a legal opinion in the form of an affidavit) stating who has the authority to administer the estate of the deceased under the laws of the deceased’s place of residence.
Bypassing the person with higher priority in applying for letters of administration
Although there are the above-mentioned legal provisions regarding the priority of applying for a letter of inheritance, under certain circumstances, the person with the later priority can bypass the person with the earlier priority and jump in line to apply for the letter of inheritance from the court. In this regard, Question, participate in the article “If you apply for a probate letter by bypassing the person with earlier priority》。
Regarding inheritance matters in Hong Kong, please feel free to consult our firm Hong Kong inheritance lawyer team lawyer.