When a person dies, he/she may leave behind some assets, such as bank deposits, cars, stocks and shares, properties and so on. Anyone who wishes to deal with the estate of a deceased person must first go to the Probate Office of the High Court of Hong Kong to obtain a Grant of Probate in accordance with the legal procedures. A Grant of Probate is a court document issued by the Probate Office which authorizes the Executor or Administrator of the estate to receive all the assets of the estate, to discharge the debts of the deceased and to distribute the estate to the beneficiaries of the estate. The power of an Executor is derived from the deceased's Will, so his/her powers and duties begin at the moment of the testator's death. The Administrator's powers are derived from the Letters of Administration, so his/her powers and duties should start from the date of the Letters of Administration, not from the moment of the deceased's death.
The procedure for handling an estate is as follows.
Step 1: Collect the deceased's belongings and liabilities to prepare an Inventory
First, the Executor or Administrator will go through all the personal belongings and liabilities of the deceased, e.g. belongings kept in the home or safe deposit box, bank deposits, credit card debts, etc., and prepare an inventory of the deceased's belongings, which will be included in the Estate's Inventory of Assets and Liabilities to be filed with the Probate Office.
Step 2: Search for the deceased's Will
It is important to ascertain whether the deceased had made a Will as this will have a direct bearing on the application process for the grant of Letters of Administration and who can inherit the estate. Possible ways to do this include checking all the deceased's personal documents, making enquiries with the deceased's relatives, friends, financial and legal advisors, and checking the deceased's bank safe deposit box. In addition, if a solicitor has been engaged to apply for a grant of representation, the solicitor can be asked to conduct a will search through the Law Society of Hong Kong to see if the deceased had made a will in Hong Kong through another solicitor.
Step 3: Determine who will file the Petition in Court
If the deceased had made a Will, it is the Executor of the Will who should file a Petition for Probate and apply for a Grant of Probate. However, if the deceased did not make a will, according to Rule 21 of the Undisputed Probate Rules (Chapter 10A of the Laws of Hong Kong), the order of priority of applicants is as follows: (a) spouse, (b) children of the deceased, (c) father or mother of the deceased, and (d) brothers or sisters of the deceased. Generally speaking, it is the person with the higher priority who should file the petition and apply for a grant of probate. However, if the person with the higher priority has died or wishes to waive his or her right to obtain a grant of probate, the person with the lower priority has the right to file a petition and apply for a grant of probate, provided that it can be proved that the person with the higher priority has died or waived his or her right to obtain a grant of probate. Letters of Entitlement may not be granted to more than four persons, and must be granted to no fewer than two persons if the estate involves minor beneficiaries or persons with life interests.
Step 4: Negotiate the need to hire an attorney to handle the settlement.
This will depend on the size of the estate and its complexity, for example.
✅ If the estate consists entirely of money and does not exceed $50,000, the applicant may submit an application form and an affidavit to the Home Affairs Department. The affidavit must state that the total value of the deceased's estate does not exceed $50,000 and that it is entirely in cash, and must be accompanied by an inventory in duplicate setting out the particulars of the estate. HAD can then issue a Notice of Recognition of Estate in lieu of applying to the Probate Office for a Grant of Probate. In this case, the applicant or any other third party dealing with the estate will be given immunity from the provisions of the law on unauthorized handling of the estate.
The Director of Home Affairs also has the power to
(a) to issue a Certificate of Requirement to authorize the making of payments from the bank account of the deceased, e.g. to pay for the funeral expenses of the deceased and the living expenses of the dependants of the deceased;
(b) Issue of "Certificate of Need to Inspect Bank Safe Deposit Box";
(c) Issue of "Authorization for Removal from Bank Deposit Box".
✅ If the estate (cash, bank deposits and MPF only) does not exceed $150,000, it can be dealt with by the Official Administrator in a summary manner without the need to engage a solicitor. If the funeral and burial expenses of the deceased have been paid by you in advance, you may apply to the Official Administrator for a refund of the funeral and burial expenses paid by you.
✅ If the amount of the estate exceeds $150,000 but the composition of the estate is simple and uncomplicated, you may consider applying to the Public Applications Unit of the Probate Office to take over the estate of the deceased. If the Registrar considers it appropriate, assistance will be provided.
✅ In other cases, consideration may be given to engaging a solicitor. There is no standardized fee for an attorney to handle an estate, so you can negotiate with an attorney you know well.
Step 5: Formal Application for Probate in Court
The applicant has to submit documents to the Probate Office in support of his/her application to prove his/her entitlement to a Grant of Probate, e.g. death certificate of the deceased, original and copy of the deceased's Will (if applicable), documents showing the relationship between the deceased and the applicant, e.g. marriage certificate, birth certificates of the children, etc. The applicant has to sign an Execution of the Will, which will be signed by the applicant and the applicant will be entitled to a grant of probate. The applicant is required to sign an affidavit of the executor or administrator. The applicant is also required to prepare and sign an affidavit verifying a list of assets and liabilities and a list of the deceased's assets and liabilities in Hong Kong at the date of death. The applicant is required to answer questions raised by the Official of the Probate Office to the satisfaction of the Official.
If, after the applicant has submitted all documents to the Probate Office (and the Grant of Probate has not yet been issued), it is found that the deceased had other assets. In this case, the applicant may submit a further Affidavit verifying the list of additional assets and liabilities. However, if the Probate has been duly issued, the applicant may bring along the Affidavit and the Affidavit of Verification of Additional List of Assets and Liabilities to the Probate Office to apply for amendments.
Step 6: Distribution of Estate
After obtaining a Grant of Probate, the Executor or Administrator will need to pay the deceased's debts (e.g. credit card debts), taxes (e.g. salaries tax, profits tax), funeral expenses, and other expenses (e.g. attorney's fees and court costs for the settlement of the Grant of Probate) out of the deceased's estate. The deceased's estate can then be distributed to the beneficiaries of the estate. If there is a will, the estate will be distributed according to the wishes of the testator. If there is no will, the estate will be distributed to the beneficiaries in accordance with the law of intestate succession. Details of the order of priority are set out in the Intestates' Estates Ordinance, Cap. 73, section 4 of the Laws of Hong Kong.
