Will & Probate
A. Testate Succession
In estate and succession planning, Will is the most often used tool to define the manner of distribution of different assets among the beloved beneficiaries who usually would be the spouse, parents, child(ren), siblings and other family members, as well as charities, churches and educational institutions.
Care should be taken to ensure that the Will is well drafted, legally valid and could be subsequently proved by the Probate Registry of The High Court of Hong Kong.
The person who makes/signs the Will is called testator (male) or testatrix (female) who must have the necessary mental capacity to understand his/her assets, which beneficiary gets what assets and how the distribution is to be made. If certain close family members are excluded from receiving testamentary gifts, then proper reasons must be given by the will maker and such reasons should be recorded/evidenced by lawyers drafting such Will. This is especially important for senior persons with mental-related medical treatment/medication background. Where it appears necessary to the lawyer, the lawyer may also assess the mental capacity by conducting Mini-Mental State Examination (short-named MMSE) where scores at 24 or above out of 30 would be safe starting point to proceed. In case of doubt, a psychiatrist examination and written report should also be required.
Where estate involves real property(ies) (eg land, property unit/flat etc), testamentary gift to beneficiary(ies) is exempted from large amount of stamp duty. Just this single saving benefit justifies the making of Will. If all the beneficiaries agree to a different distribution of real property assets, they may instruct lawyer to prepare a Deed of Family Arrangement to alter the manner of distribution, but the impact of stamp duty exposure must be carefully considered and explained to the ultimate recipient(s).
The legal process to obtain a grant of probate of the Will is usually smooth and straightforward, and usually could be obtained within a few months.
B. Intestate Succession
If unfortunately the Will, upon challenge on its validity, could not be proved, or if no will is ever made at all, then the fallback position under Intestates' Estate Ordinance, Chapter 73 of the Laws of Hong Kong will applies automatically.
Full documentation to prove relationship and kinship must be provided. These include marriage certificate, birth certificate, certificate of kinship etc. Where some of these documents are lost or not readily available, then other supporting evidence must be provided.
You may consult us as to the sequence and priorities of succession in such intestate succession.