How Taiwan residents inherit inheritance in Hong Kong
Hong Kong and Taiwan have close social ties and frequent trade exchanges. Many Taiwanese residents leave inheritance in Hong Kong when they die, including purchased properties, insurance policies, stocks, etc. This article will introduce how Taiwan residents inherit inheritance in Hong Kong, the relevant legal application and procedures and other issues.
1. Taiwan residents inheriting Hong Kong inheritance: They need to apply to the Hong Kong High Court to obtain a “Letter of Administration”
According to the provisions of Section 13 of the Probate and Estate Administration Ordinance (Chapter 10 of the Laws of Hong Kong), any person who disposes of the estate of the deceased without authorization or takes it out of Hong Kong or does other processing without obtaining a letter of probate issued by the Hong Kong court shall be deemed to have a criminal act;
Therefore, if Taiwanese residents want to inherit an estate in Hong Kong, they must first apply to the Hong Kong High Court to obtain a letter of inheritance, that is, a “letter of grant of inheritance.” “Grant of Administration” is a collective term for estate administration, which can refer to “Grant of Probate” (intestate succession) or “Grant of Administration” (intestate succession).
Hong Kong implements an estate administrator system. The person who has obtained the estate administration letter from the High Court is the estate administrator/executor. They acquire the estate of the deceased through the status of trustee (trustee), manage the estate, and distribute the estate in accordance with the law. To the beneficiary of the inheritance, or in accordance with the will of the deceased.
The administrator/executor of the estate may be one or more persons (up to four persons can apply jointly) who have the right to inherit, or they may not be the beneficiaries of the estate.
2. Taiwan residents inherit Hong Kong inheritance: they need to entrust a Hong Kong lawyer to handle the matter
Hong Kong law clearly stipulates that matters related to Hong Kong estate administration should be handled by Hong Kong lawyers, and prohibits lawyers from other regions (such as Taiwanese lawyers) or others from providing such legal services. Section 4(2) of the Uncontested Probate Rules (Chapter 10A of the Laws of Hong Kong) prohibits any person other than a practicing Hong Kong solicitor from providing legal services to others in relation to the administration of Hong Kong estates. Breaching this provision is an offense regardless of whether the legal services provided are fee-based or free.
At the same time, since the decedent and/or heir are Hong Kong residents, Taiwanese law may need to be applied to the scope of inheritance beneficiaries depending on the specific circumstances of the case. Therefore, during the handling process, Hong Kong lawyers may need a Taiwanese lawyer to issue a legal opinion on Taiwanese law.
3. How to determine the heirs (inheritance beneficiaries): Governing law
1. Situation of intestate succession
On the issue of the scope and shares of heirs, Hong Kong law and Taiwan law have obviously different provisions. Therefore, the first question is: When a Taiwan resident leaves an inheritance in Hong Kong, will the heirs be determined in accordance with Hong Kong law or Taiwan law? In this regard, it is necessary to distinguish between “movable assets” and “immovable assets” and discuss them separately:
- Inheriting “real property” (such as a house or land) is usually governed by the laws of the location where the property is located. If a Taiwan resident owns property in Hong Kong, after his death, the unit will be governed by Hong Kong’s inheritance laws to determine the heirs.
- Inheritance of “movable property” (such as money, company shares or personal property) will be governed by the laws of the deceased’s place of domicile at the date of death. If a Taiwan resident leaves movable property in Hong Kong, these properties will usually be subject to Taiwan’s inheritance laws to determine the heirs.
2. In case of testamentary inheritance
If the deceased left a limited will and the will disposes of the estate in Hong Kong, the executor should apply to the High Court of Hong Kong for the will.probate. If the High Court confirms that the will is valid, the heirs and their shares will be determined based on the designations in the will.
4. How to determine the heirs (inheritance beneficiaries): Differences in substantive law
1. Situation of intestate succession: Provisions of Taiwan Succession Law
According to Article 1138 of the Taiwan Civil Code: the order of inheritance heirs is:
- The spouse is the heir in any order.
- The first-order heirs are direct descendants. This includes children, grandchildren, and grandchildren, “those who are closest to each other come first.”
- The second-order heirs are parents (including biological parents, adoptive parents, etc.).
- The third order of heirs are brothers and sisters (including brothers and sisters from the same parents, half-brothers and sisters, adopted brothers and sisters, etc.).
- The fourth order of heirs are grandparents and maternal grandparents.
According to Article 1147 of the Taiwan Civil Code, the spouse is the natural heir. When the deceased dies, only the spouse inherits everything; or the spouse inherits jointly with the above-mentioned heirs (in order). When the spouse dies, Or if there is no right to inherit, the above heirs will inherit in order. When a spouse inherits jointly with the heirs in the first order of succession, it shall be distributed equally with his heirs; when a spouse inherits jointly with the heirs in the second or third order of succession, the spouse’s inheritance share shall be one-half of the estate, and the remaining one-half shall be shared by the heirs in the second order of succession. The second or third-order heirs shall be equally divided; if the spouse and the fourth-order heirs both inherit, the spouse’s inheritance share shall be two-thirds of the estate, and the maternal grandparents shall each receive one-sixth.
2. Situation of intestate succession: Provisions of Hong Kong Succession Law
Under Hong Kong law, if the deceased has a spouse and children, the deceased’s estate will be inherited entirely by the deceased’s spouse and children (including the direct descendants of the child if the child dies), and the parents are not the beneficiaries of the inheritance rights. Only when the deceased has no spouse and no children (if the child dies, including the direct descendants of the child), the parents of the deceased are the beneficiaries of the inheritance rights. For detailed regulations, please refer to the article:
3. The difference between the inheritance rights of illegitimate children under Hong Kong law and Taiwan law
It should be noted that the biggest difference between Hong Kong and Taiwan regarding heirs is whether illegitimate children have inheritance rights. Article 1065 of the Taiwan Civil Code stipulates that children born out of wedlock have no inheritance rights to their biological father’s estate unless claimed by their biological father. Hong Kong’s Intestate Estate Ordinance stipulates that illegitimate children of a decedent who died on or after June 19, 1993 have the same inheritance rights as their legitimate children.
5. Apply to the High Court of Hong Kong for the documents required for estate administration
- Documents required to apply for Grant of Probate (testamentary succession)
- The death certificate of the deceased;
- The original and one copy of the deceased’s will;
- Documents proving the identity relationship between the applicant and the deceased: such as birth certificate, marriage certificate, etc. ;
- Documents required to apply for letters of administration (intestate succession)
- The death certificate of the deceased;
- Documents proving the relationship between the deceased and the applicant (e.g. marriage certificate, child’s birth certificate, or birth certificate of the deceased submitted by the deceased’s parents when they are applicants);
- Notarization and certification procedures for Taiwan documents
- Step 1: Notarization and certification by a notary public at the Taiwan District Court Notary Public Office or a private notary public;
- Step 2: Verified by the Bureau of Consular Affairs of the Ministry of Foreign Affairs of Taiwan;
- Step 3: Re-inspection by Taipei Economic and Cultural Office (Hong Kong)