Will in Hong Kong
Will in Hong KongUpdated on Monday 02nd November 2020
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A will is a legal document that indicates an individual’s wishes as to how his or her assets and property will be distributed after their death. The laws applicable to a will in Hong Kong are set forth in the Wills Ordinance, Part 2 which includes several important sections about the property that may be disposed of by will, the manner in which the document is drawn up and signed as well as how it can be revoked.
The will allows an individual to decide how his/her assets are distributed and although this document may be drawn up without assistance, it is always advisable to seek specialized legal aid when discussing and drawing up the document, such as the services offered by our lawyers in Hong Kong.
Reasons to draw up a will in Hong Kong
The distribution of assets after an individual’s death takes place as per the Inheritance Ordinance (Cap. 481 of the Laws of Hong Kong). This law allows the Court to dictate how the estate of the deceased will be distributed among certain family members. A will can state the deceased's choice regarding executors, guardians to his/her children who are under 18 of age and of course, it can specify how property and assets will be inherited by the beneficiaries and who will those be. However, those who wish to allow for a special distribution can draw up a will in Hong Kong. This is the main reason why an individual can choose to draw up this document. Assistance in these matters can be provided by our lawyers in Hong Kong as sometimes writing a will can be a delicate process.
The will can change the manner in which the assets are distributed among relatives (other than indicated by the law of intestate) and it allows the individual to also appropriate part of the assets to beneficiaries who would otherwise not be entitled, such as friends or charities.
In those situations, in which the deceased has not had the opportunity to leave a will in Hong Kong, the assets are distributed according to the Intestates’ Estate Ordinance. This means that the spouse and the descendant or descendants as well as the siblings of the deceased can be entitled to inheritance. Our team of lawyers in Hong Kong can give you details on the manner in which the assets can be distributed according to the situation that applies in your case.
Signing a will in Hong Kong
The will has to be left in writing, signed by the testator and it will only be valid if it shows a true reflection of the deceased's wishes. The will should be written in Chinese or English in order to avoid further complications. By making a will in Hong Kong, the application of the statutory rules governing the division of the estate is avoided and the individual's wishes and intentions are respected.
The Wills Ordinance provides important information on the manner in which a will is to be signed and witnessed in order to be valid. The following four conditions are essential:
- Form and signing: the will is drawn up in writing either by the testator or another person, as applicable, in his presence and according to his direction;
- Validation: the testator’s signature is the one that gives effect to the document; the will is only valid if the testator does intends to give it effect by signing;
- Witnesses: the signature is acknowledged by 2 more witnesses who are present during the procedure;
- The duties of the witnesses: each witness will either attest and sign the will himself/herself or will acknowledge the signature that was placed by the testator in his presence (there is no need to submit this acknowledgment in the presence of any other witness).
A will in Hong Kong should be dated before it is signed. Moreover, the witness should not be a beneficiary. Our team of lawyers can provide you with more details on the conditions for appointing a witness.
It is important for testators to understand and comply with the formalities, for avoiding any situation in which the will is considered null because of noncompliance. The testator has the right to change or revoke a will during his lifetime if he so wishes and any such changes need to be signed by the testator. One of our attorneys in Hong Kong can give you more information on how this can be accomplished.
A will executed according to the provisions in force is valid without the need for it to be published.
Procedure for contesting a will in Hong Kong
When the heirs are not satisfied with their relative’s decision to pass down the assets in a will, they have the possibility to contest a will in Hong Kong. The first step for distributing the estate of an individual, with or without a will, is to obtain a Grant of Representation from the Probate Registry of the High Court of Hong Kong. This document indicates that a certain individual has the right to deal with and distribute the assets of the deceased.
The representatives at our law firm in Hong Kong can help you obtain the grant of representation and complete all necessary procedures required to distribute the assets accordingly. Should you wish to contest a will, our lawyers can help you start this procedure.
The heirs of an individual are able to invoke legal grounds for contesting a will, if its provisions do not satisfy them or if they believe that they have been wronged and they have been denied their legal rights to inheritance. Some of the most common grounds for contesting a will in Hong Kong include:
- lack of testamentary capacity: the individual was not over the age of 18 when he created the will or he did not have the capacity to order the execution of the will (often in cases involving elderly individuals);
- the will was not signed according to law: if the document wasn’t executed properly;
- insufficient witnesses;
- raud or forgery: if the heirs believe that the will was obtained by manipulating the elderly or otherwise vulnerable testator.
If you believe that a will was not concluded according to law, you can request the services of our law firm. A specialist will analyse your case and determine the legal grounds for contesting a specific will.
Ways to revoke a will in Hong Kong
According to the inheritance law in Hong Kong a will can be revoked in the following situations:
- Marriage: the will can be revoked by the testator’s marriage; however, there are certain situations (such as when the testator was expecting to be married and intended a disposition that the will is not to be revoked);
- Another will: one will can be invalidated when another valid document is drawn up by the testator;
- Written revocation: when the testator submits a written revocation of the validly executed will;
- Destruction: when the testator chooses to tear down or destroy the document in another manner, either directly or by directing this to be executed by another person in his presence, all with the intention of revoking the will.
A will in Hong Kong cannot be revoked by a presumption of such as intention. The will can indeed be revoked by marriage, however, a number of exceptions apply. These include the following situations:
- when it is apparent from the will that the testator was expecting to be married to a certain person and he intended that the will should not be revoked by marriage;
- when it is apparent from the will that the testator was expecting to be married to a certain person then the dispositions referring to this particular case shall come into effect notwithstanding the marriage.
When a divorce takes place after a will is made, then the will shall produce effects as if the appointment of the former spouse as an executor was omitted. Any bequest to the former spouse is annulled, except for the situation in which it is evident from the will that the contrary is wished for.
Drawing up a will in Hong Kong is not mandatory, however, it is desirable because of the fact that in its absence, the inheritance law in Hong Kong and the intestates’ estates ordinance may not apply as per the wishes of the individual. It is advisable to seek legal counseling when considering drawing up a will or for the simple purpose of finding out how the current laws apply in a certain situation that is in intestacy. For the purpose of international wills, or when the individual owns property both in Hong Kong and in other locations, it is highly advisable to seek legal counseling both for the purpose of the distribution of assets and for information on how inheritance taxes can apply to the international property.
Making a will is a voluntary act, however, it is one that allows the individual to state the manner in which he/she intends the assets or property to be divided. The will is useful because in some cases the statutory rules do not match the express intensions of the individual.
Individuals who expect to inherit property or assets under a will in Hong Kong should know that estate duty is charged in Hong Kong. The rates that apply according to the Inland Revenue Department are the following:
- 6% when the value of the estate is between 6,500,000 HKD and 8,000,000 HKD;
- 12% when the principal value of the estate is between 8,000,000 HKD and 9,500,000 HKD;
- 18% when the value of the estate is above 9,500,000 HKD;
- when the value of the estate does not exceed 6,500,000 HDK it is tax exempt.
Inheritance law in Hong Kong
Inheritance law in Hong Kong has abolished estate tax in the year of 2006 and thus, there are no taxes on gifts or wealth. The law in Hong Kong applies in the same way for both residents and non-residents and regardless of religion or sex. Therefore, there is no restriction on the people to whom the property is passed on by the deceased, on the condition that they are over 18 of age.
The main laws governing inheritance and succession in Hong Kong are the following:
- Wills Ordinance: the main law relating to wills in Hong Kong, contains the definition of a will, types of wills, conditions for validity, annulment, international wills, etc.
- Intestates’ Estates Ordinance: the main law in Hong Kong related to the distribution of intestates’ estates.
- Inheritance Ordinance (Provision for Family and Dependants): allowing the court to issue orders so that the estate of a deceased is to be provided for certain members of that individual’s family and for certain dependands of the deceased.
- Probate and Administration Ordinance: a law on the probate and letters of administration and the manner in which the estate of deceased individuals are handled through these letters.
One of our lawyers in Hong Kong can help you with comprehensive information about any of the laws mentioned above and can answer specific questions that may find their answers in one or more of these legal resources.
Inheritance and asset distribution is often in need of careful consideration and needs to take place according to law, both when a will is left by the deceased individual and in the situation in which a family member dies without leaving behind clear instructions on how his assets are to be distributed. Seeking help from a law firm would probably be the best way to handle inheritance issues.
Court orders in inheritance cases in Hong Kong
A Hong Kong Court has the right to enforce certain actions, if they are clearly expressed in the will of the deceased. Periodical payments, transfers of property in Hong Kong, benefit settlements and others can be enforced by court order and the court has regard in exercising its powers. In exercising its powers in inheritance cases, the court will take into consideration all and any particular aspects of the case.
The experts at our law firm in Hong Kong can help you throughout the inheritance procedures, can represent you in court and can help you draw up wills.
Division of inheritance in Hong Kong
The division of an individual’s estate after his or her death takes place as per the Inheritance Law in Hong Kong. The Probate and Administration Ordinance (which is part of the Hong Kong Laws) contains the types of beneficiaries, according to their relationship with the deceased and their inheritance rights.
The division of inheritance in Hong Kong can take place with a will or in the absence of one after the beneficiaries have applies for a Grant of Letter of Administration.
We invite you to watch the following video on preparing a will in Hong Kong:
Parties entitled to inherit assets in Hong Kong
Estate distribution in Hong Kong differs from case to case. However, in practice, it often happens that two or more parties that are entitled to the assets of the deceased to jointly claim the estate. One of our lawyers in Hong Kong can help you with guidance and assistance if this occurs so that you can make an inheritance claim.
The spouse is the single inheritor when the deceased has no living parents or siblings of whole blood. The residuary estate (what is left after paying any existing debts, if any, the inheritance taxes and others) becomes the property of the surviving spouse.
When there is a spouse and another blood relative of the deceased, the spouse received all of the personal chattels (household items, furniture, clothing, etc.) and 500,000 HK$ from the residuary estate.
Illegitimate children in Hong Kong and adopted children enjoy the same inheritance rights. One of our attorneys can provide you with clarifications on this matter.
Intestacy in Hong Kong
In case no will has been drawn up, Hong Kong law will be applied to immovable properties which are located in Hong Kong and the courts in charge will have to check the laws from the deceased's domicile with regard to the moveable properties.
When a person dies in intestacy (without a will), inheritance issues are generally dealt with by the Probate Registry, a sector of the High Court. When the personal representatives have to deal with an intestate property, a grant of administration is usually necessary.
Intestacy rules are applied depending on the surviving relatives of the deceased, as follows:
• In case there are no surviving children, parents or other siblings, after payment of expenses and debts, the estate will be passed to the spouse.
• If there are surviving children, the spouse will be allowed to take only half of what remains of the estate and to a legacy of a certain sum of money.
• If there are parents or siblings alive, but no children, the spouse is entitled to a legacy of the doubled amount of the previous case before the division of the estate to the other heirs.
In the event that there is no surviving spouse though, the estate is passed through members of the family and ultimately on to the Government of Hong Kong.
It is advisable to seek legal counsel in advance and talk to our lawyers specialized in inheritance law in Hong Kong should you be interested in drawing up a will.