When a person dies, there may be an estate (money in bank accounts, shares in companies, real estate and other assets, etc.) in the deceased's name. Regardless of whether the deceased made a will or not, generally speaking, before dealing with any assets of the deceased in Hong Kong, a Grant of Representation must be obtained from the Probate Registry of the High Court of the Hong Kong Special Administrative Region as evidence that a person has the right to handle the estate of the deceased.
If some foreign element is involved, there is always the question of which jurisdiction (which country's laws) should govern the administration and succession of the estate. For example, the deceased may have property abroad. In another example, a deceased non-Hong Kong resident left property in Hong Kong. Generally speaking, the following rules can provide reference answers:
- Inheritance of "real property" (such as apartments, buildings, land) is governed by the laws of the place where the property is located. For example, if you (as a Hong Kong resident) own an apartment in the UK, that apartment will usually be governed by English succession law upon your death.
- Inheritance of "movable property" (such as money, company shares, personal property) is governed by the law of the place of residence of the deceased on the date of death. For example, the movable property of a deceased person who is a U.S. resident is generally governed by U.S. succession law, regardless of where the property is located.
Differences between an Estate with a Will and an Estate Without a Will (in relation to the Grant of Representation)
"Grant of Representation" is a collective term for "Grant of Probate" or "Grant of Administration".
Grant of Probate is granted to the executor (or executrix, if a woman) named in the deceased person's last will. While Grant of Letters of Administration is when there is no will or no executor is appointed is granted to the administrator of the estate who is a close relative (such as the deceased's spouse, children or parents, etc.).
"Personal Representative" is a general term for executors or administrators. The Personal Representative has the authority to deal with the estate of the deceased, such as administering and distributing relevant assets to beneficiaries.
With a will
If the deceased person dies leaving a will (that is, he or she has made a will and appointed an executor), the executor is the only person entitled to apply for Grant of Probate. If the executor is unwilling to accept the appointment, or the executor appointed by the deceased is not alive, the person entitled to the residuary estate in the will may apply for the Grant of Letters of Administration (with the relevant will annexed) in priority. The person entitled to the residuary estate is the beneficiary who can claim the remainder of the deceased's estate after all other conditions of the will have been met (i.e. the other beneficiaries have been paid and all debts and administration charges have been paid).
Without a will
If the deceased died without a will (i.e. no will was found or the will was revoked), a person's right to apply for Grant of Letters of Administration will be governed by the law of intestacy. The order of priority is as follows:
1. the surviving spouse or surviving partner of concubines (e.g. the second wife (and third...) taken during the lifetime of the first wife entered into before 7 October 1971;
2. a child of the deceased, including any child of concubinage entered into before 7 October 1971, or the descendants of any such child who died during the lifetime of the deceased;
3. the father or mother of the deceased;
4. the siblings of the deceased or the "offspring" of the deceased siblings who has died during the lifetime of the deceased.
The maximum number of administrators (administratrix if female) of an estate is four. When a dispute arises between persons entitled in the same degree (i.e. they are all equally entitled to apply for the Grant), an application must be made to the High Court to determine who will be appointed administrators.
The High Court also has the power to appoint persons who do not belong to the above-mentioned hierarchy to administer the estate. This power is useful when the deceased's next of kin (who would otherwise be entitled to be appointed as administrators) are under the age of 21 or do not have sufficient mental or physical capacity to administer the estate.
https://clic.org.hk/en/topics/probate/all
One major difference between an executor and an administrator
Although the powers of an executor and an administrator are almost the same, there is one major difference. The power of an executor stems directly from the Will. Therefore, his/her authority and duty as an executor starts from the very moment the testator (the "Will-maker") dies.
An administrator, on the other hand, receives the relevant powers from the Grant of Letters of Administration. Therefore, his/her power to act starts from the date of the Grant but not from the date of the death of the deceased.
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