Quick FAQs Probate and Estate Administration
If a loved one passed away, who could administer their estate?
It would depend on whether the deceased left a Will. If the deceased left a Will, the executor appointed in the Will is entitled to administer the estate.
If the deceased did not leave a Will, he/she would have died intestate. The question regarding whom could administer the estate would be governed by the law of intestacy. According to Rule 21 of the Non-Contentious Probate Rules (Cap. 10A), the order of priority is as follows:
2. Children, or the issues to predeceased children,
4. Siblings, or the issues to predeceased siblings;
If no one in the above 1 – 4 survived the deceased, then
6. Uncles or aunts, or the issues to predeceased uncles or aunts;
If they have a beneficial interest in the estate. If no one has a beneficial interest in the estate, then
7. Official Administrator; and
As an executor or administrator, what do I have to do?
The executor/ administrator of an estate owes a duty to the beneficiaries and creditors of the estate. In order to effectively administer an estate, the executor/ administration would have to:
Ascertain the assets and liabilities of the estate;
Locate and safeguard the assets;
Apply for a Grant of Representation from the Probate Registry;
Collect in assets, paying off liabilities including but not limited to tax, debt, testamentary and funeral expenses due from the estate;
Keep proper accounts of the estate; and
Make distribution of the estate to the beneficiaries.
The golden rule to administration is “act in the best interests of all the beneficiaries” !
As an executor or administrator, can I get paid?
The expenses incurred by the executor/administrator in relation to administration of the estate could be reimbursed out of the estate. But an executor/administrator cannot be paid for their services unless:
- specifically provided in the Will; or
- as ordered by the Court.
However, there is nothing to prevent an executor/ administrator to enter into a remuneration agreement with all the beneficiaries for him/her to get paid.
Who are the beneficiaries of the estate of a deceased person? What are their entitlements?
If the deceased person died leaving a Will, then the identity of the beneficiaries and the allocation of the estate would be in accordance with the Will.
If the deceased person died without leaving a Will, then the entitlement of the estate would be in accordance with Section 4 of the Intestates’ Estates Ordinance (Cap 73):
- If the deceased leaves a spouse, but leaves no issue, parent, brother or sister (and their issues), then the surviving spouse is absolutely entitled to the residuary estate;
- If the deceased leaves a spouse and issue(s), then the spouse could first take:
- All personal chattels of the deceased; and
- HK$500,000 from the residuary estate.
Then the remaining residuary estate would be divided into half, with one half to the spouse and the remaining half to the issue(s), in equal shares if more than one.
Illegitimate children of deceased persons who died after 19 June 1993, have the same sucession rights as legitimate children.
- If the deceased leaves a spouse, parents and siblings, but no issue, then the spouse could first take:
- All personal chattels of the deceased; and
- HK$1,000,000 from the residuary estate.
Then the remaining residuary estate would be divided into half, with one half to the spouse and the remaining half to the parent(s), in equal shares if both survived the deceased. If both parents predeceased, then the remaining half to the sibling(s), in equal shares if more than one.
- If the deceased leaves issue(s) but no spouse, then the issue(s) would be entitled to the whole residuary estate, in equal shares if more than one.
For other scenarios, feel free to contact us for a quick consultation.
If my spouse left nothing to me under his Will, do I have any recourse?
We have full testamentary freedom in Hong Kong, but according to the laws of Hong Kong, we also have to make financial provisions from our estate to our spouse and those who are dependant on us financially. Under the Inheritance (Provision for Family and Dependants) Ordinance (Cap 481), certain people are eligible to make a claim out of the estate if they are not financially provided under the Will or under the laws of intestacy. A spouse is under the eligible class of people to make such a claim, but the claim has to be made within 6 months from the issuance of the Grant of Representation.