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| 1.1 Upon the death of a person,
all assets of the estate generally pass according to
the person's wishes as set out in the Will; or if there
is no valid Will, according to the law. Before the assets
can pass to the beneficiaries, an application has to
be made to the Court for a grant. Questions like "Who
can apply?" "Where to apply?" "How
to apply?" "What forms to use?" will
be raised and cannot be answered without reference to
the circumstances of each case. Different forms will
be required for different situations.
1.2 Pursuant to Rule 2A of the Non-Contentious Probate
Rules, Chapter 10A of the Laws of Hong Kong, the Registrar
has specified the forms as set out in the Gazette ("the
Specified Forms"). The Specified Forms (as listed out
in the Index) should be adhered to with variations or
additions as circumstances may require.
1.3 This Guide does not form part of the Specified
Forms. It is intended to give guidance on how to complete
the Specified Forms. It is advisable to read the entire
Guide first before choosing and completing the Specified
Forms.
1.4 If you are in doubt after reading this Guide, you
should make enquiry with the Probate Registry, High
Court or consult a solicitor.
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2.1 In completing the Specified Forms, please give
heed to the points set out in this Part.
2.2 Use the official name i.e. the name in the official
documents like Hong Kong Identity Card and Passport
etc. If a person has both English and Chinese names,
both should be given.
2.3 The deceased might use different names on different
occasions. Not all the names need to be disclosed
in the application; give only those that are required
to be included in the grant. For example, in the Will,
the deceased had used various names. Another example
is that the deceased had held different properties
under different names. In such cases, the grant has
to bear the different names and the appropriate paragraph
in all those Forms W1.1 to W1.4 and L1.1 to L1.6 has
to be completed.
2.4 Do not use abbreviations to avoid confusion,
ambiguity or uncertainty, e.g. "3F" in address
to indicate 3rd floor and "P. J. Smith" for Peter
John Smith.
2.5 The exact date and place of death should be given.
For example, the deceased died at Queen Mary Hospital,
Hong Kong on 1st January 1960. If it is unknown, you
may consider adopting the following example:
"The deceased died intestate on an unknown
date at the age of 70 years. The deceased was last
seen alive at Guangzhou, China in 1959 and his dead
body was found at Room 1, 1st Floor, No.1 Bad Street,
Hong Kong on 3rd March 1960."
2.6 The terms "lawful kit-fat wife" and "concubine"
are usually used in cases where the marriage was contracted
in accordance with Chinese customary law by Chinese
people domiciled in Hong Kong before 7th October 1971.
Careful consideration should be given when they are
used in other situations.
2.7 After the abolition of estate duty, the forms
do not require an applicant to state the total value
of the estate. The Applicant has to affirm/swear an
Affirmation/Affidavit verifying the Schedule of Assets
and Liabilities (in duplicate) to be exhibited to
such Affirmation/Affidavit. But, on some occasions,
the Registrar may require further information. For
example, where a person died after 3 November 1995
leaving a spouse and issue under the age of 18 years,
the Registrar has to decide whether a co-administrator
is necessary. In such cases, the spouse is entitled
to the first $500,000 upon distribution. If the value
of the estate is less than that amount, no person
other than the spouse is entitled to share in the
estate and no co-administrator is necessary.
2.8 After completing the Specified Forms, you must
make sure that the application is filed together with
the following documents:
(a) Original or Certified Copy of Death Certificate;
(b) Original or Certified Copy of Marriage Certificate,
if applicable;
(c) Original or Certified Copy of Birth Certificate,
if applicable;
(d) Original Will of the deceased together with
a copy thereof, if any;
(e) Copy of Hong Kong Identity Card, if applicable;
(f) Certificate of Exemption or Payment of Estate
Duty if the death occurred before 11 February 2006;
and
(g) Any other original documents proving your entitlement
to the grant.
For documents issued outside Hong Kong, certain
formality needs to be observed. You should make
enquiry with the Probate Registry or a solicitor.
2.9 There are many factors affecting the choice
of method and its forms of application. The main ones
as explained in the subsequent Parts are:
(a) the locality of the assets;
(b) the date of death;
(c) the value and nature of the assets; and
(d) whether the deceased had left a Will.
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3.1 Hong Kong court has jurisdiction to deal with
assets located in Hong Kong.
3.2 If the deceased left assets in Hong Kong, an
application has to be made in Hong Kong.
3.3 In considering where to apply, whether first
in Hong Kong or another place, the applicant has to
take into account where the deceased was domiciled.
The law at the place of domicile may affect the entitlements
to the estate of the deceased as well as who is entitled
to apply. The word "domicile" has its specific legal
meaning. If you have doubt, you should seek legal
advice.
3.4 If the deceased died domiciled outside Hong
Kong, there is another factor the applicant should
not overlook – whether Sections 48 to 52 of the Probate
and Administration Ordinance, Chapter 10 of the Laws
of Hong Kong are applicable. If those sections apply,
you should consider applying for a grant in the place
of domicile first and then applying in Hong Kong for
sealing of the foreign grant. In such case, use Form
F1.1 for application for sealing of foreign grant.
For sealing foreign letters of administration, surety
may be required (Forms F1.2 and F1.3).
3.5 If Sections 48 to 52 do not apply and the deceased
was domiciled outside Hong Kong but a grant has already
been obtained in a foreign jurisdiction, Form F2.1
should be used for application for leave of the court
to apply for a grant. If no grant has been made, either
Form F3.1 or Form F4.1 should be considered. When
the court has given leave for a person to apply, use
one of the forms with prefix W or L as the case may
be for applying for a grant.
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4.1 For deaths occurring before 11 February 2006,
estate duty may be payable. The applicant should apply
to the Estate Duty Office for a certificate of exemption
or payment of estate duty before making an application
to the court. After the relevant certificate has been
obtained, apply to court with Specified Forms with
suffix "b".
4.2 For deaths occurring on or after 11 February
2006, an applicant need not apply to the Estate Duty
Office and should make application to the Probate
Registry, High Court. Specified Forms with suffix
"a" should be used. Apart from the usual forms required
for application, the applicant has to complete the
appropriate forms resulting from the abolition of
estate duty (i.e. Forms with prefix "N").
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5.1 Under Section 15 of the Probate and Administration
Ordinance, the Official Administrator may take possession
of an estate of value not exceeding $150,000 and administer
it summarily without an application for a grant. Application
has to be made by using Forms N1.1 and N4.1 together
with such document that the Registrar may require the
applicant to complete.
5.2 Usually the Official Administrator will take up
and administer an estate consisting of cash, cash in
bank and/or Mandatory Provident Fund only. For other
assets comprising landed properties, shares, and chose
in action etc., the Official Administrator usually declines
to take up administration.
5.3 If a person is not certain whether an application
should be made to the Official Administrator for summary
administration, enquiry should be made with the Probate
Registry or a solicitor.
5.4 If an application under Section 15 is not appropriate,
application for a grant should be made.
5.5 For application where there is a Will, read Part
VI; where there is no Will, read Part VII; and in other
special circumstances, read Part VIII.
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6.1 The executor named in the Will should make an application
in either Form W1.1a or W1.1b as the case may be.
6.2 An executor who does not wish to take up administration
and wishes to renounce the right to probate should complete
Form W2.1.
6.3 An executor who is residing outside Hong Kong and
wishes to appoint another person to apply for a grant
may use the Power of Attorney in Form W1.2. The application
by the attorney should be in Form W1.2a or W1.2b.
6.4 If no executor is appointed in the Will, Form
W1.4a or W1.4b should be used.
6.5 If the sole executor named in the Will has died
without taking out probate or renounced, Form W1.3a
or W1.3b should be used. In cases where all executors
named in the Will have died without taking out probate
or renounced, Form W1.3a or W1.3b can be used with or
without modification as the case may be.
6.6 Any person (other than an executor) entitled to
apply for a grant with Will annexed and does not wish
to apply for it should renounce by using Form W2.2.
6.7 If the state of execution, plight and condition
of the Will need clarification, Forms W3.1 to W3.4 should
be considered.
6.8 If the executor or the person entitled to apply
under the Will wishes to appoint a trust corporation
to undertake the administration of the estate, Forms
W4.1 to W4.4 should be considered.
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7.1 If the deceased did not leave any Will (that is,
intestate) the law provides for the order of priority
for application and the manner of distribution of the
assets of the deceased. The Intestates' Estates Ordinance,
Chapter 73 of the Laws of Hong Kong, sets out under
the different circumstances who are entitled to the
estate of a deceased and also their entitlements. According
to Rule 21 of the Non-Contentious Probate Rules, Chapter
10A, the order of priority for applications for grants
of the estate is generally as follows and the Specified
Forms mentioned in brackets should be used:
(a) Husband (Form L1.1a or L1.1b) or wife (Form L1.2a
or L1.2b)
(b) Child (Form L1.3a or L1.3b)
(c) Father or mother (Form L1.4a or L1.4b)
(d) Brother or sister (Form L1.5a or Form L1.5b)
(e) Others (Form L1.6a or Form L1.6b)
7.2 A person who has priority and does not wish to
apply for a grant may renounce by using Form L2.1.
7.3 Forms L3.1 to L3.4 should be adopted for the relevant
purposes:
| Form L3.1 |
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Nomination of Attorney
Administrator |
| Form L3.2 |
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Nomination of Co-administrator |
| Form L3.3 |
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Election of Guardian for the purpose
of Nominating a Co-administrator |
| Form L3.4 |
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Election of Guardian to take Grant |
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8.1 When a probate action has begun, application may
be made to the court for the appointment of an administrator
pending suit. After such appointment, Forms S1.1a, S1.1b,
S1.2a and S. 1.2b for a Grant Pending Suit should be
used.
8.2 For preservation of an estate, Form S2.1a or S2.1b
should be used for an application for a Grant Ad Colligenda
Bona. After the court order is made, Forms S2.2a or
S2.2b should be used.
8.3 Where the estate of a deceased is left unadministered
because of the death of the administrator or the death
of the sole/last surviving executor without leaving
a Will, a person interested in the estate should apply
for a Grant De Bonis Non in one of the Forms S3.1a,
S3.1b, S3.2a and S3.2b.
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9.1 In some applications, the court may require an
applicant to furnish more information or material by
way of affirmations in support of the application. For
example, if there is no acceptable documentary evidence
to establish a material fact like the death of a deceased
or the applicant's relationship with the deceased, an
affirmation is required e.g. affirmation of death (M1.1)
and affirmation of identity (M2.1).
9.2 In cases where surety is required, Forms M3.1 and
M3.2 should be used.
9.3 In cases where amendment to the grant is needed,
Forms M4.1 and M4.2 should be used as appropriate.
9.4 For applications for an order limiting the time
for creditors' claims against the estate Forms M5.1
and M5.2 should be used.
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10.1 In cases where dispute arises as to who should
apply for a grant, the forms to be used before taking
probate action are those set out in Forms C1.1 to C1.4
and C2.1 to C2.3.
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