Probate

What concerns you should have when making your will?

Although this is not an  exhaustive list, you may take the following points as a basic reference:

Funeral Arrangements

You may indicate in your will your preferred form of funeral, e.g. burial or cremation, Taoist, Buddhist or Christian etc.

Personal items

If you have not stated in your will who should take your personal items such as furniture, clothing, accessories, vehicles or other items of memorable value, those items would be considered as part of the your estate and will be sold and then distributed in the form of money.

Too young a beneficiary

If a beneficiary of your will has not reached the age of 18 by the time you pass away, your executor would normally put the assets that you leave behind for that beneficiary on trust until he or she reaches 18. If you are worried that it is not good for the growth of your child or grandchild to succeed your assets at too young an age, you may specify in your will that your full assets can only be received at an older age (e.g. 25 or 30) and that before then your child or grandchild can only receive small sums for their daily and educational expenses.

Disabled beneficiary

If a beneficiary of your will is unable to look after him/herself due to disability, you may appoint a trustee to manage the assets that you leave behind for him/her.

Your beneficiary unfortunately passes away before you do

According to section 23 of the Wills Ordinance (Cap. 30), if a descendent of yours is a beneficiary of your will and he/she passes away before you do, leaving behind descendent(s) of his/her own, then generally his/her descendent(s) will take over the assets that you originally leave behind for your fallen descendent.

Medical Certification

If you are rather old, suffering from stroke, Alzheimer’s disease or any other severe diseases that may affect your mental condition, you should invite your attending doctor, or even a neurologist or a psychiatrist, to examine and record your mental condition. This is to prevent your family from attempting to use poor mental condition as a reason for challenging your will in court.

Estate Duty

Estate Duty was abolished on 11st February, 2006. People surviving that date like you do not have to worry about this.

Can I not leave any asset to my wife or my infant children?

Generally speaking, you have the freedom to decide how to distribute your estate. Differently put, you may by your will decide to whom you would and whom you would not leave your assets. As said before, you may even not leave a dime to your families but leave it all to charities or, perhaps, your caretaker or neighbours who have taken care of you. However, persons who have been dependent on your financial support for a living or to whom you owe the moral obligation of financial support, such as your wife, infant children, aged parents, or even a mistress, may apply to the court for an order that certain parts of your estate shall be given to them to maintain their living.
(Section 3, 4 and 5 of the Inheritance (Provision for family and dependents) Ordinance (Cap. 481))

Is your will going to be cancelled automatically if you get married or divorced after you make it?

If you get married after making it, your will would generally be cancelled automatically. In contrast, if you get divorced after making it, your will would generally not be cancelled automatically. But if, in your will, you have appointed your ex-husband or ex-wife to be your executor, or if you have left behind any assets to him/her, those parts of your will would be cancelled automatically (section 14 and 15 of the Wills Ordinance (Cap. 30).

Keeping your will properly  

You should keep your will properly after you make it or else your wishes may not be implemented if your will is lost subsequently. You may choose to keep your will at home or other private premises. But you should make sure that the will would not get lost easily and that your executor knows how to locate it. As there might be many years between the time you make your will and your passing away, it is quite possible that you might lose the will when you move or renovate your apartment, or you might forget about it due to a decline in your memory as you get older. Keeping your will at home, therefore, carries a certain degree of risk.

Safer ways would be to make your will through a law firm or to keep it in a bank safety deposit box. When your time on earth is through, your executor could easily retrieve your will from your law firm. If he or she has no idea through which firm you have made your will, he or she may search for it through the Hong Kong Law Society.

On the other hand, even if your executor himself has no right to open up your safety deposit box, he may obtain such right through the Department of Home Affairs in order to locate your will. These measures largely prevent your wishes from going nowhere simply because you might have forgotten where you put your will, or because it has been lost somewhere (section 60D of the Probate and Administration Ordinance (Cap. 10))

If you want to know more about how your executor could apply for permission to open up your safety box and the relevant restrictions, please click here to visit the CLIC website.