PROBATE AND RELATED MATTERS
Probate is the legal process by which the Will of a deceased person is proved to be valid, in order that their property can be transferred to the beneficiaries of the Will. The immediate aftermath of the death of a relative or close friend is a difficult time. For many people, the complexities of probate and other legal procedures that follow a death can compound the sense of distress. This article explains the basic processes and how to approach them.
When a person dies in Hong Kong, the family needs first of all to deal with the body of the deceased. On occasion there may be disputes as to the possession of the corpse or how it is to be dealt with. Subject to the provision of a valid Will and the expressed intention of the deceased before death, the surviving spouse or next of kin will usually have the right to deal with the body.
Depending on the place and cause of death, an autopsy, police investigation and inquest (usually under the ambit of the Coroner’s court) may be relevant before the issuance of the official death certificate. Where an autopsy is required, the corpse will be arranged for cremation / burial shortly afterwards. Once the official death certificate is issued, the family proceeds to the cremation or burial of the corpse.
The family should search the deceased’s belongings for relevant documentation. This would include the identity documents, Will and organ donation card of the deceased. It is also important to locate documentary evidence of his / her assets, commitments and liabilities e.g. bank statements, share certificates, insurance policies, property title deeds and contracts.
A priority is to deal with any so called common liabilities. These include outstanding tax payments, bank loans (mortgage, credit card etc.), judgment debts and maintenance payments etc.
There may also be contracts or litigation in which the deceased was a party. In this event, the family is strongly advised to consult the relevant solicitor(s) immediately, as it might be necessary to make emergency application to the Court for provisional order(s) to deal with the deceased’s estate assets which are likely to be frozen after his / her death.
In terms of estate administration, if the deceased left a Will, the executor appointed in the Will takes up the role of administering the deceased’s estate. If the deceased died intestate (without having made a will), the person who has priority under the law is likely to take up the role. Your solicitor can advise on who has priority to administer the estate under the intestacy laws; it is for the Probate Court to determine this.
The executor of the Will should then arrange to obtain the official death certificate, and if possible obtain birth / death / marriage certificates of relevant family members for proof of identity and relationship.
If the person dies overseas leaving estate assets both in Hong Kong and overseas, the procedure to be followed will depend on whether the country where the person was domiciled when they died (and where the estate assets not situated in Hong Kong are situated) has reciprocal recognition of legal processes with Hong Kong (examples of countries that do include U.K., Australia, Singapore, New Zealand, Sri Lanka).
If so, the family may first proceed with probate in that country, and then arrange for the probate to be resealed in Hong Kong. Otherwise, the family may consider starting probate proceedings in both places in parallel.
For the Hong Kong process, the family has to obtain an authenticated death certificate with Apostille to be done in the place where the deceased died. (Apostille is a certificate of authentication, legalising a document for use in another country).
Other points to bear in mind include:
- All powers of attorney (ie legal representation) given by the deceased cease to have effect upon his / her death and shall not be used or relied upon after death.
- There must not be any post-death access (e.g. withdrawals) to the deceased’s (sole name) bank account before notifying the bank of the deceased’s death.
- There must not be any post-death access to the deceased’s safe deposit boxes at banks (whether these are in sole or joint names) before contacting the Home Affairs Department.
- The family (or the intended executor / administrator) should also take reasonable steps to notify the employer / business partners of the deceased’s death.
Handling probate and related procedures can be very complex and you are strongly advised to go to your (or the deceased’s) solicitors’ office for assistance as soon as possible.
The above article is for your general information only and should not be treated or relied on as legal advice. For further information please contact:
Mr. Vanky Mak, Partner, Hampton, Winter and Glynn
vankymak@hwg-law.com (852) 2847 2338