Will Setting

A Will is a legal document. The purpose of a Will is to allow the person making the Will to distribute his/ her assets according to his or her wishes, which may include the apartments, bank deposits, stock bonds, jewelry, etc. Though one may make a Will on their own, there is a risk that the Will will be invalidated. In order to avoid any hindrance in dealing with probate or estate contracting in the future, it is always advisable to consult a lawyer before drafting a Will. As Hong Kong's law prohibits the unauthorised disposal of estates, if a person dies without making a Will, his estate will be dealt with in accordance with the relevant legislation.

Different kinds of assets in estate may be governed by the laws of different jurisdictions. For those immovable assets (e.g. housing and land), their succession is generally governed by the laws of the place where the assets are located and not the place in which one lives. If one owns an apartment in China, for example, the succession of that apartment would generally not be governed by the laws of Hong Kong but by the laws of that place regardless of whether they live in Hong Kong or China. Likewise, even if one has lived in China for years, and has an apartment situated in Hong Kong, the succession of that apartment would generally be governed by the laws of Hong Kong.

The succession of movable assets (e.g. bank deposits, shares or jewelry) is generally governed by the laws of the place you live in when you pass away. For example, if one lives in Canada, the succession of your jewelry would generally be governed by the laws of Canada.

For assets in foreign countries and foreign laws, you may need to consult foreign legal professionals.

• The "testator" (if male) or "testatrix" (if female) must be mentally sound.
• The two witnesses must sign one’s Will in their presence (The witness and his/her spouse should not be a beneficiary under the Will).
• The Will must be in written form and state clearly who will be the executor(s) and beneficiary (s).
• The Will should be dated before it is signed.
• The signature of the testator / testatrix and those of the witnesses should preferably be placed at the end of the Will.
• A Will cannot be altered. 

**If there are any changes, a new Will should be made.

Gaining access to the deceased’s safe deposit box in a bank

Whether or not a Will is left by the deceased would affect the application procedure for the Grant of Representation.  The deceased's family members or legal representative must check carefully to see if the deceased had made a Will (or whether the Will on hand is the latest/last Will or not). Their duties include checking all the personal documents of the deceased, asking the relatives and friends, and enquiring with the deceased's financial or legal advisers. The Will may also be kept in the safe deposit box in a bank. Gaining access to the deceased’s safe deposit in a bank may help to find the Will. 

• Either the executor under the Will, the intended administrator having priority to take out a Grant of Letters of Administration, or a surviving renter of the safe deposit box will need to apply for a "Certificate for Necessity of Inspection of Bank Deposit Box" (certificate for inspection) from the Home Affairs Department.  
• On issue of the certificate for inspection, the holder of the certificate should make an appointment with the Estate Beneficiaries Support Unit of the Home Affairs Department for the inspection. Officers from the Estate Beneficiaries Support Unit and a bank staff will attend the inspection process. 
• If the safe deposit box is rented jointly with another renter, the surviving renter (if he/she is not the Holder) will need to be present at the inspection. If a Will is found, the Holder (if he/she is the named executor) can take the Will away after making a copy of the same and placing the copy in the safe deposit box.
• The inventory will be prepared by the Holder, with assistance from the public officers whenever necessary. The inventory will be verified by public officers present at the inspection, and a copy of the inventory will be kept by the bank concerned and the Secretary for Home Affairs for a period of six years. The original inventory will be kept by the Holder.
• If a Will or similar instrument is found in the safe deposit box upon inspection, and the holder of the certificate is the executor or one of the executors named in it, the bank will allow the holder to remove the will or instrument after a copy of it has been placed in the box. 
• If a Will or similar instrument is found in the safe deposit box and: i) the Holder is not the executor named in the Will, or ii) there is no executor appointed in the Will and the Holder is not the surviving renter, the Holder is not permitted to remove the Will or prepare the inventory. The safe box will then be closed or sealed immediately by the bank staff after a copy of the Will is made and handed over to the public officers present. The copy of the Will will be kept by the Secretary for Home Affairs for six years.

The safe deposit box in question may be rented -

• in the sole name of the deceased person
• jointly with other person and where the lease agreement provides for "survivorship arrangement", i.e. access to the contents of the box of any of the renters of the box is not affected by the death of the other renter of the box, e.g. the agreement specifically states that the bank shall recognize the surviving renter as the only person as having any right or interest under the agreement in the event of the death of one of the joint renters; or
• jointly with other person and where the lease agreement does not provide for "survivorship arrangement".

Application for certificate for inspection (both original and photocopy)

• the identity card/passport of the deceased person;
• the death certificate of the deceased person;
• the identity card/passport of the applicant;
• the last will of the deceased person, if the applicant is in the capacity of the executor ;
• any document evidencing the relationship between the deceased person and the applicant, such as marriage or birth certificate, if the applicant is not the executor of the deceased person;
• the letter of renunciation duly executed by the person entitled in a higher priority to administer the estate, if applicable;
• the death certificate of the person entitled in a higher priority to administer the estate, if applicable;
• the authorization letter from the executor or the person entitled in a higher priority to administer the estate (signed in the presence of another next of kin, if the authorization is not prepared by a legal firm), if applicable;
• any document evidencing the relationship between person named under (6) or (7) or (8) and the deceased person, if applicable; and
• any document evidencing the existence of the safe deposit box, e.g. the lease agreement of the box.

Registration of a death

Before the application of “A Grant of Probate” or a “Grant of Letters of Administration”, a certified copy of a death entry (commonly known as Death Certificate) must be obtained. 

• Details of the registration procedures are as follows:
  • Death registration procedures vary according to the nature of death: 
  • (i) a death from natural cause (handled under normal procedures); 
    •  a registered medical practitioner had made the final diagnosis and determined the cause of death 
  • (ii) a death from unnatural cause 
    • Such a case should be reported immediately to the Police, who will in turn report it to the Coroner and conduct an investigation.
    • The Police will submit a report to the Coroner, who will decide if an autopsy, investigation or inquest is necessary to determine the cause of death.
    • Depending on circumstances, the Coroner may (before the cause of death is determined) order the body be buried or cremated.

The procedure of applying of “A Grant of Probate” or a “Grant of Letters of Administration”

• No matter whether the deceased has made a Will, generally a Grant of Representation  have to be obtained from the Probate Registry of the High Court of the Hong Kong Special Administrative Region before any of the deceased's assets in Hong Kong can be dealt with. 
• Probate is a court order authorizing one or more persons to administer the Deceased’s estate according to the directions in the Will. The person is referred to as executor.
• A Grant of Letters of Administration is a Grant given to an administrator who is the next-of-kin (e.g. the deceased's spouse, child or parent, etc.) where there is no Will, or where no executor has been appointed in the Will.
•  “A Grant of Probate” or a “Grant of Letters of Administration” can be obtained after getting a Death Certificate. 
• It may take about 8 months for the application depending on the complication of the nature of the estate.
• It is for the executor named in the Will or the intended administrator to take that inventory. The way to take inventory is to physically search and ascertain those personal belongings of the deceased such as bank deposits and loan from credit card. That inventory will then be filed in the Schedule of assets and liabilities with the Probate Registry.

With a Will

• If the deceased died testate (i.e. they had made a Will appointing an executor), the executor is the only person who is entitled to apply for a Grant of Probate of the Will. If the executor does not wish to take up the appointment, or if no executor appointed by the deceased survives, then the person entitled to the residuary legacy in the Will has priority to apply for a Grant of Letters of Administration (with the relevant Will annexed).

Without a Will

• If the deceased died intestate (i.e. no Will is found or if the Will has been revoked), the right of a person to apply for a Grant of Letters of Administration would be governed by the law of intestacy. Under rule 21 of the Non-Contentious Probate Rules (Cap. 10A of the Laws of Hong Kong), the order of priority is as follows:
  • the surviving spouse or the surviving partner or partners to a union of concubinage (e.g. the second wife (and the third….) taken during the life of the first wife) entered into before 7 October 1971;
  • the children of the deceased including any children born of a union of concubinage entered into before 7 October 1971, or the issue of any such child who has died during the lifetime of the deceased;
  • the father or mother of the deceased;
  • the brothers and sisters of the deceased or the "issue" of any deceased brother or sister of the deceased who has died during the lifetime of the deceased.
  • the grandfather or grandmother of the deceased.

Note 1: The maximum number of administrators (or adminstratrix in case of a female) of an estate is four. When there is a dispute between persons entitled to a Grant in the same degree (i.e. they are all equally entitled to apply for the Grant), an application has to be made to the High Court to determine who will be appointed as administrators.

Note 2: The High Court also has the power to appoint a person who is not in the above hierarchy to administer the estate. This power is useful when the next-of-kin of the deceased, who would otherwise be entitled to be appointed as administrator, is under 21 years old or has insufficient mental or physical capacity to administer the estate.

• The assets of the deceased will be allocated according to  the Intestates’ Estate Ordinance (Cap. 73) if the deceased died intestate. Here are some possible cases for reference.
  • The deceased only leaves a spouse: If the deceased leaves only a spouse, then the surviving husband or wife is absolutely entitled to the residuary estate 
  • The deceased only leaves child(ren)：all the assets of the deceased would be divided among them equally
  • The deceased leaves a spouse and issue：
    • the surviving spouse could take the following first:
    • all the deceased's personal chattels
    • a sum of $500,000 from the residuary estate；
    • After the aforesaid $500,000 is paid out, if there is any remaining sum, it would be divided in half. One half will be distributed to the surviving spouse and the other half will be divided equally amongst the child/children of the deceased.
  • The deceased leaves a spouse, parents and siblings, but no issue：
    • The surviving spouse could take the following first:
      
      • all of the deceased's personal chattels;
      • a sum of $1,000,000 from the residuary estate
    • After the aforesaid $1,000,000 is paid out, if there is any remaining sum, it would be divided in half. One half will be distributed to the surviving spouse and the other half will be distributed to the surviving parent(s).
    • The siblings will only be entitled to part of the estate (after deduction of the spouse's entitlement) if the deceased leaves no issue and no parents
  • The deceased leaves parent only：the assets will be divided equally to the father and mother.
  • The deceased leaves behind no husband or wife and no descendent
    • The assets would be equally distributed to surviving whole brother(s) and sister(s);
    • if no such brother or sister, equally distributed to half brother(s) or sister(s);
    • if no such relative exists, grandparent(s);
    • if no grandparents survives, whole brother(s) and sister(s) of parents
    • if you have no whole brother(s) or sister(s), then half brother(s) and sister(s) of parents.

The application procedure:

* "Documents in support of the application" are used to support that the applicant has the right to apply a  Grant of Letters of Administration. 

** The above application form and Affirmation or Affidavit can be obtained at:

• Probate Registry, LG3, High Court Building, 38 Queensway, Hong Kong
• Download from the websites 

https://www.judiciary.hk/zh/court_services_facilities/probatef_form.html

• If the deceased person fits the following requirement, the person who intends to apply for the Grant of Probate or Letters of Administration ("the Applicant") can file an application form (HAEU5) and an affirmation/affidavit with the Estate Beneficiaries Support Unit under the Home Affairs Department according to Section 60K of the Probate and Administration Ordinance (Cap. 10). The applicant can handle the small estates of the deceased. 
• The Director of Home Affairs will issue a confirmation notice exhibiting a duplicate of the schedule of assets of the estate. The Applicant or other third parties dealing with the estate would then be exempt from the relevant statutory restrictions concerning the intermeddling of the estate (handle the estate without permission).
• The confirmation notice is not a replacement for grant of representation. The bank may exercise its discretion in deciding whether to release the money in the bank account(s) stated in the schedule annexed to the confirmation notice to the executor or the person entitled in priority to administer the estate without a grant from the court.

Requirements of application

• The deceased person did not beneficially own other properties in Hong Kong not being money (such as securities, business, landed property, motor vehicles, safe deposit box, jewels, Mandatory Provident Funds, insurance policy) at the date of death. 
• The deceased person did not own debts (such as tax liabilities, bank loan, overdraft, credit card debt) at the date of death.
• The total value of the estate of the deceased does not exceed $50,000 and the estate is wholly made up of money.
• The deceased person did not hold any property as trustee or as the manager of a Tso or Tong as at the date of his death.
• The applicant should be either the executor of the deceased person or the one entitled in priority to administer the estate. 

Application of the confirmation notice (the estate does not exceed $50,000)

• The application should be made on Forms HAEU5, HAEU5-A and HAEU5-S by the executor(s) or the persons entitled to administer the estate. The forms can be obtained from the Estate Beneficiaries Support Unit.
• Form HAEU5-S is for setting out the schedule of all the properties beneficially owned by the deceased person as at the date of death. To facilitate subsequent processing by bank(s), details of the bank account(s) including the name of bank(s), account number(s) and cash amount(s) should be provided. All accounts should be held in the sole name of the deceased person.
• Enclose a copy each of the following supporting documents (originals and a photocopies): 
  1. the identity card/passport of the deceased person;
  2. the death certificate of the deceased person;
  3. the identity card/passport of the applicant;
  4. the last Will of the deceased person, if any;
  5. any document evidencing the relationship between the deceased person and the applicant, such as marriage or birth certificate, if the applicant is not the executor of the deceased person;
  6. the letter of renunciation duly executed by the person entitled in a higher priority to administer the estate, if applicable;
  7. the death certificate of the person entitled in a higher priority to administer the estate, if applicable; 
  8. any document evidencing the relationship between the person named under (f) and/or (g) and the deceased person, if applicable; and
  9. fixed deposit receipt(s)/bank statement(s)/bank passbook(s) in respect of all bank account(s) of the deceased person, showing the bank account balance as at the date of death of the deceased person and those for the last three months before death.
• After the application has been vetted, the applicant will be asked to swear/affirm in an affidavit as to the truthfulness and correctness of the affidavit and the schedule exhibited by the affidavit.
• On approval of the application, a confirmation notice will be issued to the applicant.

Urgency use from the estates to meet funeral expenses and the maintenance of former dependants

The Director of Home Affairs, under authority delegated by the Secretary for Home Affairs, may issue on application a "Certificate for Necessity of Release of Money" to authorize release of money from the bank account of the deceased person to meet funeral expenses and maintenance of former dependants. Section 60B of the Probate and Administration Ordinance (Cap. 10) is relevant.

Application for release of money for maintenance of former dependants

• The "Certificate for Necessity of Release of Money" to authorize release of money from the bank account of the deceased person for immediate relief for former dependant of a person.
• The former dependant in question should have been supported financially by the deceased person immediately before his death and has a beneficial interest in the estate.
• The money to be released will not be greater than the amount provided by the deceased person to the former dependant in question immediately before death. Nor will the amounts in aggregate be greater than the beneficial interest of the former dependant(s) in the estate.
• The bank account in question should be one held in the sole name of the deceased person.
• If the deceased person has left a Will and has named an executor or executors, the applicant should be the executor or one of the executors. Otherwise, the applicant should be the one who is entitled in priority to administer the estate.
• The application should be made on Form HAEU2. Copies of the form are also available from the Estate Beneficiaries Support Unit.
• On approval, the bank will be required to release the money in monthly instalments for a period of three months.
• The applicant can make further application if needed.

Urgency use from the estates to meet funeral expenses and the maintenance of former dependants

The Director of Home Affairs, under authority delegated by the Secretary for Home Affairs, may issue on application a "Certificate for Necessity of Release of Money" to authorize release of money from the bank account of the deceased person to meet funeral expenses and maintenance of former dependants. Section 60B of the Probate and Administration Ordinance (Cap. 10) is relevant.

Application for release of money for funeral expenses

• The bank account in question should be one held in the sole name of the deceased person.
• The application should be made on Form HAEU1 by a fit and proper person who may be the executor appointed under the Will, a family member, a friend, a fellow worker or a neighbour of the deceased person. Copies of the form are also available from the Estate Beneficiaries Support Unit.
• The application must be made before payment to the funeral service supplier.
• The amount to be released will consider the prevailing fees for a funeral package.
• On presentation of the certificate, the bank will ask for proof of identity from the holder of the certificate. The bank will also check against the available balance in the account in question.

1. I have lost all my love and affection for my wife. I plan to leave nothing to her without even mentioning her name in my Will. Can I do that?

Generally speaking, every person has "free testamentary capacity", which means that people can, by Will, leave their assets to whomever they wish.

However, the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481 of the laws of Hong Kong) empowers the Court to make orders that provisions be made from the deceased's estate for certain members of the deceased's family and dependants.

For example, if one was to declare that all their estate goes to their parents, or a charity, without leaving even one dollar to their wife or minor children, such an intention may not be achieved after death. Their wife and children could apply to the Court for provisions to be made for them from their estate. In other words, they may be entitled to get a reasonable amount from the estate in order to maintain their living.

2. Under what circumstances can a Will be revoked? 

Usually, a person has to take action to revoke his/her own Will. For example, this might be done by making a new Will or tearing the existing Will into pieces. A circumstance that is often overlooked is the revocation of a Will by the normal operation of law due to a subsequent marriage (a marriage that occurred after the Will was made). A marriage after the execution of a Will automatically revokes the Will unless it is proved that the Will was drafted in contemplation of that marriage. For example, a clause is inserted in the Will stating that the subsequent marriage with a named person shall not revoke the Will. One’s Will would generally be cancelled automatically according to the change of their marriage status. A new Will may be needed to set up. 

3. The daughter is mainly responsible for supporting and caring for the deceased, but it is not stated in the Will that the assets will be distributed to her. Can she appeal for the assets?

The act of supporting and caring for the deceased does not constitute a reason for inheritance. If the testator does not specify the distribution of the estate to the daughter, his estate will be distributed according to the contents of the Will.

Probate | Community Legal Information Centre (CLIC)