Inheriting Esate in Hong Kong: Procedural Overview
Procedures for inheritance in Hong Kong vary according to whether or not the deceased left a valid will with an executor appointed in the will at the time of his death. Generally speaking, the procedures of succession in Hong Kong are as follows:-
First of all, person having the right to manage the estate should apply to the Probate Registry of the High Court of Hong Kong to be appointed an administrator (or an executor of a will);
Then, after the court appoints the administrator or executor of the will, the administrator or executor shall collect and manage the estate and distribut the residue estate after paying all debts to other heirs who are entitled to the estate or any share of the estate.
Determining who has the priority to be the administrator
Before submitting an application for the appointment of an administrator or executor to the court, the first thing is to determine who has the priority right to apply to be the administrator (or executor).
If the deceased has a valid will, and the an executor has been designated in the will, the executor designated in the will shall be the person who has the right to apply to the court to manage the estate as executor.
On the other hand, if the deceased did not leave a valid will, or he left a will but he did not name an executor in the will or the named executor renounces its executorship, then the priority to apply for an administratorship will be according to the prescription of the law. For the priority order of applying to be the administrator of the estate of the deceased under Hong Kong law, please refer to our article Priority Order of the Right to Be the Administrator under the Hong Kong Inheritance Law.
Procedures for applying to be the administrator
Where the deceased leaves no will or the will does not effectively appoint an executor, the person with priority under the law may apply to the court to be appointed administrator of the estate. Applications should be made to the Probate Registry of the High Court of Hong Kong.
The documents normally required for an application for a Letters of Administration include:
- An affirmation for an application to become administrator. The contens of the affirmation will vary depending on the status of the applicant (e.g. spouse or child or parent of the deceased);
- Evidence supporting the above application includes the death certificate of the deceased, the applicant’s identity document, documents proving the relationship between the deceased and the applicant (e.g. birth certificate, marriage certificate, etc.), documents which prove that the person having priority in the order of application has died or renounced his priority.
- If the deceased is domiciled outside Hong Kong, an separate ex parte application by way of affirmation is also required to state that the basis of the application, i.e., the applicant is a person entitled to administer the deceased’s estate under the law of his place of domicile.
- If the deceased is domicile outside Hong Kong, a legal affirmation from a lawyer of the place of the deceased’s domicile place may be required to prove that the applicant is a person entitled to administer the deceased’s estate under the the law of the deceased’s domicile place.
After the court receives the applicant’s application documents, it will generally make the first reply in about 1-2 months. The court’s response is usually in the form of requisition. The requisitions are questions raised by the court to the applicant by way of a letter requesting the applicant to correct mistakes, submit supplementary documents, clarity ambiguity or amend relevant documents. The applicant shall answer the requisitions to the satisfaction of the Probate Registry before a Letters of Administration can be issued to the applicant.
Surety Guarantee
If the applicant is a person not ordinarily residing in Hong Kong, the court will also require the applicant to provide surety guarantee to ensure that after he/she is appointed as the administrator of the estate, he or she will not damage the interest of other people (such as other inheritors or any debtor of the esatate) in the process of administration of the estate, or otherwise the surety will have the joint liablity to compensate.
The legal process of applying to be executor of a will
If the deceased left a valid will and an executor is named in the will, the executor named in the will should apply to the court for probate in order to be appointed as the executor by the court.
An application for probate to the court requires the submission of the following documents:
- an original copy of the will;
- an application by way of affidavit to apply for a probate of the will;
- If the will is not witnessed by a practicing solicitor in Hong Kong, the cour will usually requires affidavit evidence made by the testamentary witness stating the circumstances under which he has witnessed the signing of the will by the deceased;
- applicant’s identification documents;
If the validity of the will is to be determined in accordance with foreign law, e.g. if the testator was not domiciled in Hong Kong at the time of his death and the will was not made in Hong Kong, the court may require the applicant to produce an affirmation of law issued by a lawyer of the deceased’s domicile place to prove that the will is legally valid under the applicable foreign law.
Procedures for administering the estate of the deceased
After obtaining the letter of inheritance issued by the court, the administrator (or the executor of the will) can collect the estate from the bank, securities company or other holder of the estate on the force of the grant, or manage the estate by transfer the title of the estate, or pay debt which the deceased owned from the estate, and finally distribute the residue estate to other beneficiaries who have the right to inherit. This process usually does not require court intervention or participation unless dispute arises. If any heir believes that his or her inheritance rights have been infringed upon by the administrator, he or she can take legal action against the administrator or executor to the court.
If you have any questions about the legal procedure of inheritance in Hong Kong, please do not hesitate to contact our lawyers of inheritance legal team by sending an email our email address [email protected].