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Guide to the use of the Specified Forms

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Part I Introduction

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.

 

Part II General Observations

2.1 In completing the Specified Forms, please give heed to the points set out in this Part and use the language (Chinese or English) that you wish the grant to be issued in to prepare the application for grant as the grant shall be issued in the same language of your application.

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.

 

Part III Where the assets of the deceased are located

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.

 

Part IV Date of Death

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").

 

Part V Amount & Nature of the assets

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.

 

Part VI Where there is a Will (Testate)

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.

 

Part VII Where there is no Will (Intestate)

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
-
Nomination of Attorney Administrator
Form L3.2
-
Nomination of Co-administrator
Form L3.3
-
Election of Guardian for the purpose of Nominating a Co-administrator
Form L3.4
-
Election of Guardian to take Grant

 

Part VIII Special Circumstances

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.

 

Part IX Miscellaneous

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.

 

Part X Dispute

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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