We understand that we will not take all our possessions with us after we die. Before that happens, we can make a will and distribute it to our spouse, children, or family, hoping that they can use your assets wisely later. Make the will is important in Hong Kong as a valid legal document to minimize the risk of disputes somewhere in the future. SMEBrother will provide guidance for you on several things you should know about will in Hong Kong, such as things to consider, what happens if you don't have will, etc.
How to make the will
Making a will require a lot of consideration, and you can consult an agency or someone who is an expert in the field so that you don't make a mistake in determining how your will is made. Make the will is necessary to reduce the risk of your family fighting over your assets, and you can make it according to your heart's wishes without any coercion from anyone.
Before making a will, the main requirement is that you must be over 18 years old and physically and mentally healthy. Everything related to wills in Hong Kong is regulated in the Wills Ordinance (Cap. 30). For more details, you can read it from section 1 to the end.
You can make a will by hiring a solicitor or by personal desire. The legal requirements for a will to be valid is that a will must be handwritten and signed by you. When you sign the will, there must be two witnesses who witness it directly, with the witnesses having to be over the age of 18. The witnesses cannot be a beneficiary of your will, so you have to prepare this person, who can be from the solicitor or from a family that has nothing to do with it.
The will can be written in any language, but it is preferred to use Mandarin or Chinese, compared to English or other languages. This will make it easier for the will recipient to take care of it because things are not complicated, and you don't have to bring in a language expert to take care of your will in Hong Kong.
To make it easier for you to make a will, the following things must be present:
A will from your personal writing
A will with your signature (inked thumbprint, stamped signature, initials, a name, mark of any shape) Or from other people according to the will maker's direction and presence
The testator must intend to execute the will with his/her signature
Sign the will with the presence of two witnesses at the same time
Each witness validates and signs the will or acknowledges the signature, in the presence of the testator (but not necessarily in the presence of other witnesses). Although no form of attestation is required, it is usually more appropriate to include an attestation clause in the will
Don't choose witnesses from your immediate family, because section 10 of the Wills Ordinance shows that witnesses cannot be from someone who is the beneficiary of your will or they will lose the right to handle your estate
For clarity of your will, date your will before signing, and place the signature at the end of the contents of your will. The witness can sign next to yours while you and the witness seeing each other's signatures in accordance with section 5 of the Wills Ordinance
What if one day you want to change the contents of the will or revoke the will for some reason? You can create a new will by taking the same steps as above to revoke the previous will. As clarity for your new will, tear up the original one to avoid any confusion or challenge to the new will.
Things to consider before make the will
The main thing in a will is the intention of the person making the will and the person's capacity when making the will. A Will will be valid if a testator can show their intention about the will which takes effect upon their death, and their capacity when making the will.
A testator can indicate their intention by starting words in the will such as "This is the Last Will and Testament of [a name]" or hiring a solicitor to write the will. If you are blind or cannot read or write, or want someone to sign the will on your behalf, you must indicate that you approve the content of the will when signing. You can ask one of the witnesses to read the contents of the will until the matter of making the will is finished.
Making a Will in Hong Kong
A testator can show their capacity if they are over 18 years old and have the mental capacity to know the content of the will and agree with the content in the will. If a testator were extremely ill or mentally ill, or under medication, they need to prove that during production they were aware and agreed to the will content until a signature was added.
The court requires proof that at least one medical practitioner checked the mental capacity of the ill testator before a will is valid, while witnessing the entire process. If there is undue influence or fraud is detected, then the will can be challenged.
What happens when you don't make the will?
The deceased's assets are distributed in accordance with the Intestates' Estate Ordinance. This means that the spouse, descendant(s), siblings, or other family members can be entitled to inheritance. There is a level of priority for someone who obtains permission to manage the deceased's person's assets using the Grant of Letters of Administration which is regulated in rule 21 of the Non-Contentious Probate Rules.
Unlike you who have a will, someone you name in the Will will get a Grant of Probate. The inheritance will be arranged according to what you write and how you will divide the assets. Ensure that you can check your active will, and take care of it if you want it to be changed or revoked for some reason.
Making a will is easy, but you need someone who is an expert and can guide you from the first steps of making a will until the will is valid. SMEBrother can help you with all matters regarding wills, from administration to comprehensive will consultations.
SMEBro provides professional notarization services to ensure that the estate can be properly managed and distributed. 💪💪
Services include:
✅ Estate Survey and Assessment: A comprehensive survey and assessment of the estate will be conducted to ensure that all assets and liabilities are clear.
✅ Legal process guidance: A professional legal team will assist you in completing various legal procedures required for inheritance distribution to ensure that everything is legal and compliant.
✅Careful follow-up throughout the entire process: We have professional teams from Hong Kong and Mainland China who are familiar with inheritance matters and can help you break barriers and successfully inherit your inheritance.
A person will usually leave a will for their family long before they die. But if there is a special event such as someone dies without a will, then in Hong Kong the estate will be divided and managed in accordance with existing laws. Before we learn about how it is distributed when someone dies and whether there is a valid will or not, we need to know about the meaning of probate, the Probate Registry, and several cases regarding probate. Hope this article will help you regarding probate when learning more about wills in Hong Kong.
What is probate meaning?
Probate is a court order that authorizes one or more people to manage the deceased's inheritance in accordance with the instructions in the Will. This person is called the executor. The inheritance in question can be money in bank accounts, company shares, house, real estate, cars, and other assets left under the deceased's name.
Probate is a general term for legally processing the rights in an estate. Probate is needed to handle the assets of someone who has died, especially for relatives who are not left with a will.
Why was the Probate Registry established?
Any inheritance issues will be regulated by the Probate Registry, and the Probate and Administration Ordinance (Cap.10) delegates the authority to issue Grants to the High Court. The Registrar of the High Court is required to exercise these powers and process all applications that do not give rise to disputes. The Probate Registry has been established as an integral part of the Judiciary to assist it in carrying out its duties.
What does the Probate Registry do?
The Probate Registry assists the Registrar in processing applications and submitting requisitions to ensure that Grants will be awarded to the correct person according to the law. This also assists him in carrying out other functions according to law including carrying out the functions of Official Administrator.
Everyone who wants to take care of a will left by one of their family members must understand the probate meaning and get probate, because for simple and straightforward cases it takes a long time, around 5 to 7 weeks on average. If the nature of the estate is complicated, the time required will be longer.
Issues that need to be considered with or without a will
When a person dies, there may be an estate left under the deceased's name. A Grant of Representation from the Probate Registry of the High Court must be in place to administer the deceased's assets, whether the deceased has made a will or not. A Grant of Representation acts as proof that someone has the right to deal with the deceased's estate.
There is always the question of which jurisdiction (the laws of which country) should regulate the administration and succession of the inheritance if there are foreign elements involved. For example, the deceased person was not a resident of Hong Kong, but left property in Hong Kong, or the deceased Hong Kong person may have owned property abroad. In general, the following rules might provide a reference answer:
Succession to "immovable assets" (buildings, flats, land) is regulated by the law of the place where the assets are located. For example, if a Hong Kong resident owns a flat in the UK, the flat will usually be governed by UK succession laws after your death.
The succession of “movable property” (personal effects, money, company shares) is regulated by the law of the place of domicile of the deceased person on the date of death. For example, the movable property of a deceased person who was a resident of the UK is usually governed by English succession law, wherever the property is located.
The differences between estate with a will and without a will
A Grant of Representation is the collective term for a Grant of Letters of Administration or a Grant of Probate. Probate meaning will be influential here, because a Grant of Probate is a Grant given to the executor (male) or executrix (female) named in the last Will of the deceased person.
If there is no executor/executrix written in the Will, or there is no Will, someone who wants to administer the deceased's estate must obtain a Grant of Letters of Administration. This Grant is given to administrators who include the next-of-kin (the deceased's spouse, children, parent, uncle, siblings, etc.).
Probate - Six Simple Steps in Handling and Distributing the Estate of a Deceased Person
A Personal Representative is an executor/executrix or an administrator. The Personal Representative has the authority to deal with the estate, such as arranging the distribution of assets to the beneficiaries.
With a will
It needs to be clear for all the assets inherited from someone who has died, that the assets that will be managed or distributed must settle all debts, administration expenses, and other beneficiaries first. If the deceased person has written down who the executor/executrix is, then that is the only person who is entitled to apply for a Grant of Probate.
What if the executor/executrix does not want to take up the appointment or there is no executor appointed by the deceased survivors? The person entitled to the residual legacy in the Will can apply for a Grant of Letters of Administration. Once all conditions are met, the person is entitled to the remainder of the deceased's estate.
Without a will
If no Will is found or the Will has been revoked, the law of intestacy will determine who is the rightful person who can apply for a Grant of Letters of Administration. There is an order of priority regulated in rule 21 of the Non-Contentious Probate Rules (Cap. 10A of the Laws of Hong Kong):
surviving husband/wife or surviving partner or union of concubinage (second and subsequent wives taken during the lifetime of the first wife) entered into before 7 October 1971
Direct descendants of the deceased or any children born of a union of concubinage during the life of the first wife entered into before 7 October 1971, or descendants of the child who died during the deceased person's lifetime
The parent(s) of the deceased
Siblings of the deceased or descendants of the deceased's brothers or sisters who died during the deceased's lifetime.
The High Court also has the authority to appoint someone who is not included in the hierarchy to manage the inheritance. This power is useful if the closest relative of the deceased, who should have the right to be appointed as administrator, is under 21 years of age or does not have sufficient mental or physical capacity to manage the estate.
Is Probate meaning confusing for you? Or do you already understand a lot about Probate and Will? Don't worry because SMEBrother will help with everything you need, starting from making a Will, managing a Will, or whatever difficulties you have regarding a Will. SMEBro provides professional cross-border estate notarization services to ensure that the estate can be properly managed and distributed. 💪💪
Services include:
✅ Estate Survey and Assessment: A comprehensive survey and assessment of the estate will be conducted to ensure that all assets and liabilities are clear.
✅ Legal process guidance: A professional legal team will assist you in completing various legal procedures required for cross-border inheritance distribution to ensure that everything is legal and compliant.
✅Careful follow-up throughout the entire process: We have professional teams from Hong Kong and Mainland China who are familiar with inheritance matters and can help you break cross-border barriers and successfully inherit your inheritance.