Probate, Will Writing and Enduring Powers of Attorney
Your estate arrangements are important. At Arthur Hong LLP, we offer professional probate services to help you ensure that your estate is arranged in accordance with your wishes and to provide protection for your loved ones.
- Inheritance：Arthur Hong LLP will help you identify the deceased’s assets, including property, investments, insurance and other items of value, and assist you with all related legal procedures, including document preparation, court filings and other necessary procedures.
- Will Drafting：Our experts will work with you to prepare and engross a clear and unambiguous will to ensure that your assets are distributed in accordance with your wishes.
- Enduring Power of Attorney：We will assist you in creating an Enduring Power of Attorney to ensure that you have someone you trust to handle your financial and medical affairs on your behalf in the event that you are unable to do so.
Probate Services Hotline
Why Choose Us?
Expertise
We have years of experience in estate administration. Our team of lawyers is committed to providing our clients with legal services of the highest quality and in-depth professional advice.
Will Drafting
We will work with you to prepare and engross a clear and unambiguous will to ensure that your assets are distributed in accordance with your wishes.
Fast Service
We recognise the importance and urgency of estate administration. We therefore provide a fast and efficient service to ensure that your application is processed in a timely manner and that your interests are fully protected.
FAQ
1. What is a Will?
A Will is a formal document that records a person’s wishes regarding the distribution of his/her property during his/her lifetime. In Hong Kong, a Will needs to comply with the requirements of the Wills Ordinance. When making a Will, you should ensure that it is clear, legally binding and attested by two witnesses.
2. How does a Will take effect?
A Will has to be duly probated before it can take effect in the distribution of an estate after the testator has passed away. The executor of the Will should apply to the court for probate and the distribution of the estate should be carried out in accordance with the contents of the Will.
3. How is an estate distributed in the absence of a Will?
If there is no Will, the estate will be distributed according to the order of succession in the Non-Contentious Probate Rules. Generally, the order of succession is spouse, children, parents, etc. If there are no suitable heirs, the estate will go to the government.
4. What is Estate Duty?
On 11 February 2006, the Revenue (Abolition of Estate Duty) Ordinance 2005 came into effect. With the abolition of estate duty, there is no need to file an affidavit or return or obtain a Certificate of Settlement of Estate Duty to apply for a Grant of Probate. For estates of persons passed away on or after 15 July 2005 but before 11 February 2006, only a nominal duty of $100 will be levied if the basic value of the estate exceeds $7,500,000.
5. What are the main steps of the Probate Registry Service?
1. Confirm the inventory of the estate, including movable, immovable and financial assets, etc.
2. Pay taxes (if any) and debts associated with the estate
3. Distribute the estate to named heirs in accordance with the Will or the law
4. Assist with all legal and estate transfer formalities
5. Provide professional advice to assist family members in planning and managing their estates.
6. Why do I need to use the Probate Registry Service?
Even with estate planning, there are many complex legal and financial issues that family members need to deal with after an individual’s death. Using the Probate Registry Service can:
– Ensure that the estate is distributed in accordance with the decedent’s wishes
– Avoid disputes between family members during the inheritance process
– Settle the estate legally and properly
7. How are estate disputes handled?
Disputes over an estate may need to be resolved through legal forums. When an estate is involved in a dispute, it is possible to resolve the dispute through litigation or mediation to ensure that the estate is distributed fairly and reasonably.
8. How long does it take to complete the Probate Registry Service?
This depends on the complexity of the estate. Simple estates may be completed within 3-6 months, but those involving complex assets or disputed estates may take up to 1 year or more. The Bank will provide an estimation of time based on the specific circumstances.
9. My relative has just passed away. What should I do with his/her property?
Firstly, look for a Will. This can be done by checking the home and other possible places and seeking help from relatives or a solicitor. If you find the Will, check with the Executor named in the Will. We will assist the Executor in taking care of the estate at the Probate Registry of the High Court. After obtaining a Grant of Probate, the estate will be distributed to the beneficiaries according to the contents of the Will.
10. I have searched the home and with my relatives but I cannot find the Will. What should I do?
If you cannot find the Will at home or with relatives, you may consider taking the following steps.
Firstly, if the deceased had a safe deposit box at the Bank, you can go to the Bank in person or through a solicitor to open the box and check if there is a Will. Alternatively, you may wish to instruct a solicitor to conduct a will search through the Law Society of Hong Kong, as the deceased may have had a will drawn up by a solicitor during his/her lifetime.
If further assistance or legal advice is required, it is recommended that you seek the assistance of our firm to ensure that the will search process goes smoothly.
11. What are the consequences of disposing of a deceased person's estate without going through the above procedures?
If you dispose of someone’s estate privately, you may be in breach of the law, criminally liable and have to pay other costs. If you are not sure what to do, you should consult a solicitor or the Probate Registry of the High Court, who will be able to give you professional advice and assistance to ensure that the entire process of handling the estate is legal and effective.
This is to protect everyone’s rights and interests, so that they will not be in breach of the law if they are not careful. Therefore, if you come across such a situation, you must take the initiative to seek professional assistance, so that the whole process of estate disposal can be completed safely.
12. Who will be responsible for the handling and distribution of the deceased's property if we cannot find the Will left by the deceased in the end?
If we cannot find a Will, the deceased’s estate will be distributed in accordance with the provisions of the Non-Contentious Probate Rules, with the nearest and dearest to the deceased as the Administrator.
13. If the deceased did not leave a Will, how will the estate be distributed?
According to the Non-Contentious Probate Rules, after deduction of the deceased’s debts, taxes, funeral expenses and administration costs, the deceased’s estate will be distributed in a certain manner or proportion to those who are entitled to it.
1. If the deceased had only one spouse and no children, parents, or siblings, then that spouse receives all of the deceased’s remaining estate.
2. If the deceased had a spouse and children, then the spouse receives first: all personal chattels and HK$500,000 of the remaining estate. For the remaining estate, half will be given to the spouse, and the other half will be divided equally among the children.
3. If the deceased had children, even if the spouse is deceased, the parents and siblings will not receive any of the estate, which will be divided equally among the children.
4. If the deceased had no children, even if the spouse is still alive, the parents and siblings will receive a share of the estate. The spouse receives first: all personal chattels and HK$1 million of the remaining estate. For the remaining estate, half will be given to the spouse, and the other half will be divided equally between the parents.
The above are preliminary legal principles only and do not apply to all scenarios and cases. You are advised to contact your solicitors for professional advice and assistance as soon as possible.
14. If the deceased had illegitimate children, or if the children were adopted, what is the difference in their inheritance rights?
If the deceased had left a Will, the deceased should follow the Will without regard to status. If there is no Will and the deceased died on or after 19 June 1973, illegitimate children and legitimate children will have the same rights of succession. In addition, if a person has been adopted by another person under a lawful adoption procedure, that person and the natural children of the adopter will have the same status in law. They will be treated as children of the adopter. The above are only preliminary legal principles and cannot be generalised from case to case. You are advised to contact our solicitors for professional advice and assistance as soon as possible.
15. I am the next of kin of the deceased but I am not listed as one of the beneficiaries in the Will. I think this is very unfair. What can I do?
If you feel that you are entitled to some distribution of your estate but you are not mentioned in the Will, you can seek professional advice from a solicitor. Under Hong Kong law, even if you are not named in the Will, it is possible for an unmarried partner or illegitimate child to apply to the Court for a distribution of your estate through the Bank.
It is also possible to challenge the validity of a Will by questioning the mental state and voluntariness of the testator at the time the Will was made. The above are preliminary legal principles only and do not apply to all scenarios and cases. You are advised to contact your solicitors for professional advice and assistance as soon as possible.
16. I have decided to ask the Court for a fair distribution of the deceased's estate. What should I do?
If you have any claims or demands in respect of the property left behind by the deceased, it is advisable to seek professional advice from a solicitor first. We can file a Caveat to the High Court for our clients to temporarily prevent others from obtaining a Grant of Probate to distribute the entire estate of the deceased. We will examine your situation carefully before deciding what to do next. This will ensure that your interests are protected and that no one else gets there first. The above are only preliminary legal principles and cannot be generalised from case to case. You are advised to contact our solicitors for professional advice and assistance as soon as possible.
17. The last thing I want is for my descendants to get into an argument. Is it better for me to make a Will?
Absolutely! As long as you are at least 18 years old, you have the power to make a Will, commonly known as a ‘peace offering’. It is generally inexpensive and can be amended or redrafted at any time after making it. Making a Will now not only fulfils your wishes, but also saves you some of the costs of evidencing when your estate is dealt with by your descendants in the future.
18. Do I have to go to a solicitor to make a Will?
No, but we strongly recommend that you use a solicitor. A Will is an important legal document and as such, the High Court is very strict in approving applications. There are specific formalities that must be followed in making a Will, especially if the testator is elderly, infirm or in poor health. Otherwise, if the validity of the Will is challenged in the future and there is a lack of evidence, the Will may be ruled invalid.
19. Procedures for dealing with an Inheritance
Step 1: Gather the deceased’s property and liabilities and prepare an inventory
Firstly, the Executor or Administrator will need to go through all of the deceased’s personal property and debts, e.g. property stored at home or in a safe deposit box, bank deposits, credit card debts, etc., and prepare an inventory of the property. This inventory will be included in the Estate Inventory and submitted to the Probate Registry.
Step 2: Find the deceased’s Will
Whether or not the deceased left a Will directly affects the process of filing a Grant of Probate and the identity of the heirs to the estate, so it is important to determine whether or not a Will exists. This can be done by checking the deceased’s personal documents, making enquiries with family, friends, financial advisors and legal advisors, and checking the deceased’s safe deposit box at the Bank. In addition, if a solicitor has been engaged to apply for a Grant of Probate, the solicitor can be asked to carry out a will search through the Law Society of Hong Kong to ascertain whether the deceased has made a Will in Hong Kong through another solicitor.
Step 3: Identify the person who will make the Probate Registration application
If the deceased left a Will, the Executor should make an application for a grant of representation and apply for a Grant of Probate. If the deceased did not leave a Will, according to Rule 21 of the Non-contentious Probate Rules (Cap. 10A), applications can be made in the following order of priority:
(a) the spouse.
(b) the deceased’s children.
(c) the deceased’s father or mother.
(d) siblings of the deceased.
Normally, it is the person with the higher priority who makes the application and applies for the Grant of Probate. However, if the person entitled to the higher priority is deceased or wishes to waive his/her right to a grant, the person entitled to the lower priority is entitled to make an application for a grant and apply for it, provided that it can be proved that the person entitled to the higher priority is deceased or has waived his/her right. Letters of Entitlement may not be issued to more than four persons, or at least two if minor beneficiaries or persons with life interests are involved.
Step 4: Consider the need to engage a solicitor to handle your estate
Hiring a solicitor depends on the size and complexity of the estate. There is no standardised scale of fees for solicitors and you are welcome to discuss this with us and we will give you an estimation of the full solicitor’s fees and expenses as far as practicable.
Step 5: Formal Application for Grant of Probate
The applicant should submit documents to the Probate Registration in support of his/her application to prove his/her entitlement to Grant of Probate. These documents include the death certificate of the deceased, the original and copy of the deceased’s Will (if applicable), and documents proving the relationship between the deceased and the applicant, such as marriage certificates, birth certificates of the children, etc. The applicant must sign the Executor’s Will and the birth certificates of the children. The applicant must sign the Affidavit of the executor or administrator and prepare and sign an Affidavit verifying the Estate Inventory and Debts, and the deceased’s Estate Inventory and Debts in Hong Kong at the date of death. The applicant should answer the questions raised by the Officials of the Probate Registry until the Officials are satisfied, and the Bank will also handle the answering of questions raised by the Officials of the Probate Registry on behalf of the client.
If the applicant has submitted all the documents but the Grant of Probate has not yet been issued, and it is later discovered that the deceased has other assets, the applicant may submit a further Affidavit verifying the additional Estate Inventory and Debts. However, if the Grant of Probate has been duly issued, the applicant may bring along the Grant of Probate and the Affidavit of additional verification of Estate Inventory and Debts to the Probate Registry to apply for amendments.
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