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題注：港籍夫妻香港、北京兩地居住，在男方名下的北京房產屬夫妻共同財產還是男方個人財產？即房產性質認定是依據內地法律還是香港法律？ ——再審申請人金信與被申請人楊智、楊禮繼承糾紛一案    一、基本案情 人物關係: 費義（男）與楊智（女）為夫妻，於1990年在北京結婚，未生育子女，於2001年收養一子楊禮。費義於2015年去世。金信為費義的遺囑受益人。 財產爭議: 費義於2015年在香港立下遺囑，將其全部財產贈予金信。遺囑經香港高等法院認證。 金信主張，香港房屋已依遺囑登記在她名下，A房屋為費義與楊智的夫妻共同財產，應依遺囑將費義的份額轉移至她名下。 楊智認可遺囑並已將香港房屋的費義份額轉移至金信名下，但她主張A房屋登記在她名下，屬於其個人財產，費義無權處分，金信無權依遺囑主張A房屋的折價補償。 A房屋情況: 2001年，楊智以全款方式購買位於北京市某區的A房屋，並登記為其個人所有。 金信主張A房屋為費義與楊智的夫妻共同財產，理由是費義與楊智在購買A房屋時仍為夫妻關係。 楊智主張A房屋為其個人財產，理由是A房屋登記在她名下，且費義在購買A房屋時將房屋登記在她名下，實際上是對A房屋所有權的放棄。   二、判決的主要問題 本案的核心問題是： A房屋性質: A房屋是楊智和費義的夫妻共同財產還是楊智的個人財產？ 法律適用: 應適用哪一法律來認定A房屋的權屬？是內地法律還是香港法律？   三、爭議焦點 適用法律的選擇: 金信主張: 應適用香港法律，因為費義和楊智均為香港居民，且在訴訟發生前近10年未共同居住，不存在共同經常居所地。 楊智主張: 應適用內地法律，因為A房屋位於內地，應適用不動產所在地法。       2.適用法律的依據: 金信: 援引《中華人民共和國涉外民事關係法律適用法》第二十四條，主張在雙方無法協議選擇適用法律的情況下，應適用共同經常居所地法律，沒有共同經常居所地的，適用共同國籍國法律。 楊智: 援引《中華人民共和國涉外民事關係法律適用法》第八條和最高人民法院關於適用該法律的解釋，主張應適用法院地法律確定本案的民事法律關係定性。 夫妻財產認定: 金信: 認為夫妻關係存續期間購買的財產，應當視為夫妻共同財產。 楊智: 認為登記在誰名下的財產就屬於誰，即使是夫妻關係存續期間購買的財產，只要登記在一方名下，就屬於該方的個人財產。   四、一審判決 法院採信楊智的主張，認為A房屋登記在楊智名下，屬於其個人財產，與費義無關。 法院根據《中華人民共和國涉外民事關係法律適用法》第二十四條，認為A房屋的性質認定應參照楊智和費義的共同國籍國法律，即香港法律。 法院駁回金信的訴訟請求。   五、再審裁定 法院認為，原審事實認定清楚、適用法律正確。 法院再次確認，費義和楊智均為香港居民，且不存在共同經常居所地，應適用香港法律。 法院駁回金信的再審申請。   六、律師點評 律師點評指出，本案的裁判思路與廣東清遠中院、最高院在類似案件中的裁判思路一致，即在港籍夫妻無共同居所地的情況下，應適用香港法律來認定一方名下國內財產是否為共同所有。 律師認為，適用內地法律與適用香港法律的結果截然不同，因此一定要引起高度重視。   七、補充說明 本案反映了涉外婚姻繼承案件中，法律適用和夫妻財產認定方面的複雜性。 本案的裁判思路值得關注，因為它涉及到內地法律與香港法律的衝突，以及法院在處理此類案件時如何選擇適用法律。

Estate planning is a proactive approach to managing and distributing your assets according to your preferences, both during your lifetime and after your passing. Notarizing estate planning documents is crucial, as it authenticates and validates documents, prevents fraud, minimizes family disputes, and expedites probate.

Navigating the probate ordinance in Hong Kong is essential for anyone managing estate assets. To deal with estate property, one must obtain a Grant of Probate or a Grant of Letters of Administration, ensuring compliance with legal requirements. This guide provides detailed steps and requirements for securing these grants, ensuring a smooth process for asset management and 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.

Each country has different intestacy laws to deal with the distribution of assets of people who passed away without a valid will. Two important keys in this regard are the Intestate Estate Ordinance (Cap. 73) and the Wills Ordinance (Cap. 30). Learning about these laws can help you in the crucial event that your loved one dies intestate. The goal of these laws is to ensure a fair distribution of the deceased's estate among relatives. This article will discuss how assets will be divided, and what relatives can do to manage them. Intestate Estate Ordinance in Hong Kong According to the Intestates' Estates Ordinance (Cap. 73) when a person dies while not executing a will in Hong Kong, then the estate of that person will be distributed and that person is called an intestate in this case. There are many possibilities for someone not taking care of a will while they are alive, due to sudden illness, being away from relatives, new marriages, or various other personal reasons. If there are relatives who suddenly want to take care of the inheritance of someone who has died, and after checking it turns out that person has never made a will, then they must obtain a Grant of Letters of Administration from the Probate Registry. Those who are entitled to apply for the Grant of Letters of Administration for inherited assets are the people regulated in rule 21 of the Regulations. There are highest priorities starting from a surviving spouse, children, parents, siblings, grandparents, uncles and aunts. Those who are able to obtain a Grant of Letters of Administrations are able to deal with the estate in accordance with the Intestates Estates Ordinance. After arranging for the funeral of the deceased and obtaining the Grant of Letters of Administration, the administrator must settle any debts, expenses, and collate all the assets of the deceased. Now, the estate will be distributed to the beneficiaries in accordance with section 4 of the IEO, and will be explained below. Entitlement on Intestacy If there is only the spouse, no children/grandchildren of the deceased, parents, full siblings or children/grandchildren of full siblings, then the entitlement arrangement is handed over to the surviving spouse. If there is a spouse and children/grandchildren of the deceased and other immaterial relatives, the surviving spouse gets personal chattels and half of the residual estate and HK$500,000. The other half for statutory trust (refer to the Intestate Estate Ordinance) for the surviving children/grandchildren. For the spouse and one or more of the relatives such as parent or full sibling or children/grandchildren of full sibling, the surviving spouse gets personal chattels, half of the residual estate, and HK$1,000,000. The other half for the surviving parents or on statutory trusts for the full siblings. For no spouse and only children/grandchildren of the deceased, the entitlement arrangement is all for the surviving children/grandchildren on statutory trust. For no spouse, no children, only parents, all rights go to parents. If there are only full siblings, no spouses, children, or parents, all rights go to full siblings on statutory trusts. The law will continue according to who the recipient is, and who the remaining family is. For half siblings, grandparents, full uncles and aunts, half uncles and aunts, it will be handed over according to the administrator on statutory trusts. Especially for someone who has no relatives at all, everything will be taken care of by the Hong Kong Government as unowned property. Distribution of Estates (resume) The distribution of an intestate's estate will be sorted according to priority, starting from spouse and children, then parents, full siblings, half siblings, grandparents, full uncles and aunts, half uncles and aunts, and so on. If the remaining people in the family are a spouse and children, the spouse gets household items or personal chattels, HK$1,000,000 in cash, and part of the remaining property. The children will share the other half. If the deceased person only has a spouse without children, the spouse gets personal chattels, HK$1,500,000 in cash, and half of the remaining estate. The remainder of the estate will be divided between the deceased's surviving parents or surviving siblings. That order will continue to be repeated according to priority, unless there are special conditions where the person who died has no relatives at all, and the price will be managed by the Hong Kong Government as unowned property. Do you know the procedure of inheritance in Hong Kong? In case of inheritance, a legal personal representative must be appointed to manage the inheritance. This representative, known as an administrator, is usually the highest ranking relative according to inheritance rules. Administrators must apply for a Grant of Letters of Administration from the High Court Probate Registry before they can deal with the deceased's assets as we discussed above. Conclusion The intestate estate ordinance in Hong Kong provides a systematic approach to dividing the estate of a deceased person in the absence of a valid will. However, these laws may not reflect the deceased's personal wishes when creating their own will. Immediately make a will for your beloved family, because we can provide comfort for the family in the future, and also ensure that there is no will in your name that has been registered and could be considered fraud. Therefore, it is always advisable to seek professional legal advice and consider making a will and how assets will be divided according to one's wishes. Making a will is complex and there is a lot to take care of. Even though we already know the intestate estate ordinance, we still don't know exactly what we need to prepare to make a valid will. Knowing this, you need SMEBrother as your one stop solution for everything regarding wills. SMEBro provides services including: ✅ 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 cross-border barriers and successfully inherit your inheritance.

Overview of Inheritance Procedures in Hong KongThe procedure for inheritance in Hong Kong varies depending on whether the deceased died with a valid Will and an Executor appointed. Generally speaking, the main procedures of inheritance in Hong Kong are: firstly, the person entitled to administer the estate of the deceased should apply to the Probate Office of the High Court of Hong Kong for the appointment of an administrator (or executor) by the court, and then the administrator (or executor) will distribute the estate to other beneficiaries entitled to inherit (successors) or administer the estate in other ways according to the lawDetermine who has the right to bring an action in court to be an administrator (executor).Before filing an application in court, it is important to determine who has the right to apply to be an administrator (executor) of a deceased person's estate. Generally speaking, if the deceased left a valid Will and the Will has named an Executor, the Executor named in the Will is the person who has the right to apply to the Court to administer the estate as an Executor. On the other hand, if the deceased did not leave a Will, or if he did leave a Will but did not validly appoint an Executor in the Will, the order of precedence should be determined according to the law as to who has the priority to apply for the right to be the Administrator. The order of priority for applying to be an administrator of a deceased person's estate under the laws of Hong Kong.Procedures for applying to be an AdministratorWhere the deceased did not leave a Will or where the Will does not validly appoint an Executor, a person who is entitled to priority under the law may apply to the Court for the appointment of an Administrator of the deceased's estate. The application should be made to the Probate Division of the High Court of Hong Kong.The documents that are normally required to be filed to make an application to be granted Letters of Administration include. an affidavit of application to become an Administrator, which varies according to the status of the applicant (e.g. being the spouse or a child or a parent of the deceased); If the deceased was domiciled outside Hong Kong, this needs to be supported by a separate ex parte application affidavit stating that the applicant is the person who has the power to administer the estate of the deceased under the law of the place of domicile of the deceased. Evidentiary documents in support of the above application include the death certificate of the deceased, the applicant's identity document, documents proving the kinship between the deceased and the applicant (e.g. birth certificates, marriage certificates, etc.), and documents proving that the person who had the right of priority before him/her has died or waived his/her right of priority. If the deceased was domiciled in a place other than Hong Kong, a legal affidavit from a solicitor of the place of domicile of the deceased certifying that the applicant is the person entitled to administer the estate of the deceased under the law of that place is also required.Upon receipt of the application documents, the Court will normally give its first reply within 1-2 months - the Court's reply is usually in the form of an interrogatory - the Court's interrogatory is a letter from the Court asking the applicant to make corrections to the application, to submit supplementary documents, or to amend the relevant documents. The applicant is required to make corrections, additions and supplementary submissions in response to the Court's questions until the Court is satisfied and a grant of Letters of Administration will be issued.If the applicant is a person outside Hong Kong, the Court will require the applicant to provide a guarantee that he/she will not administer the estate to the detriment of other persons (e.g. other heirs) after his/her appointment as Administrator.Legal Procedures for Applying to be an ExecutorIf the deceased has left a Will in which an Executor has been validly appointed, the Executor named in the Will should apply to the court for probate of the Will in order to be appointed by the court as an Executor.A petition for probate filed with the court requires the following documents. an original copy of the will. an affidavit of filing for probate, thereby making yourself an executor of the will.. If the will was not witnessed by a solicitor practicing in Hong Kong, it is usually necessary to submit an affidavit from the witness of the will stating the circumstances under which the will was made. identification document of the applicant.If the validity of the will is to be determined by foreign law, e.g. if the testator is not domiciled in Hong Kong and the will was not made in Hong Kong, the Court may require the applicant to submit a legal affidavit from a foreign lawyer certifying that the will is legally valid under the applicable foreign law.Procedures for administering the estate of a deceased personAfter obtaining a grant of letters of administration from the Court, the administrator (or executor) of the deceased's estate can use the grant of letters of administration to collect the estate from banks, securities companies, etc., to effect transfers, and to distribute the estate to other beneficiaries who are entitled to succeed to the deceased's estate - a process which normally does not require the involvement of the Court - and if any of the inheritors believes that his/her right of succession has been infringed by the administrator of the deceased's estate, he/she may bring an action in the Court. If any heir believes that his or her inheritance rights have been infringed by the administrator, he or she can bring a court action.