Since Hong Kong is an international commercial centre, not only locals, but people from the Mainland or other overseas countries may have different kinds of assets in Hong Kong. When a person passes away, it is possible that his/her estate includes assets in Hong Kong, such as cash at banks, shares and real properties etc.
Regardless of whether the deceased had left a will, anyone who needs to manage the deceased’s assets in Hong Kong must apply for a Grant of Representation (“Grant”) from the Probate Registry of the High Court of Hong Kong Administrative Region. The Grant includes Probate, Letters of Administration, or Letters of Administration with Will Annexed. The Grant is a document issued by the Court confirming the authority of the personal representative to administer the estate of the deceased.
We are often faced with cases involving foreign elements for the matters we handle. For example, where the deceased had assets outside of Hong Kong, or vice versa, where Mainland or overseas domiciled deceased had assets in Hong Kong. This gives rise to the following questions: What law governs the administration and succession of the Hong Kong estate? How to inherit such estate?
The following common law rules apply in Hong Kong:
- Immovable property (e.g. real property): Governed by the law of the location of property. For instance, where the deceased died domiciled outside Hong Kong intestate, but had a real property in Hong Kong, the Hong Kong law of succession will be applied in relation to the distribution of the said real property.
- Movable property (e.g. cash, shares or personal chattels): Governed by the law of the deceased’s place of domicile. For instance, if the deceased died domiciled in the PRC, no matter in which jurisdiction his/her movable properties are located, the distribution of the said movable properties will depend on the law of succession of the PRC.
What is Domicile?
When administrating the deceased’s estate in Hong Kong, the first thing is to identify his/her place of domicile. At common law, domicile is defined as “the place or country which is considered by law to be a person’s permanent home”. In Hong Kong, the concept of domicile is governed by the Domicile Ordinance (Cap.596). In general, domicile is determined by a person’s presence in a country and his/her intention to make a home in that country for an indefinite period.
Factors which are relevant to determining the domicile of a deceased are, but not limited to, the followings:-
1. The nationality of the deceased;
2. In which country or place did the deceased live before his/her death; and
3. On what basis did the deceased live in that country or place.
The Probate Registry will also take the following factors into account when determining whether the deceased had the intention to make a home in Hong Kong indefinitely:-
1. Whether the deceased’s presence in Hong Kong was legal;
2. For how long the deceased had stayed in Hong Kong;
3. Did the deceased have a consistent place of residence and a job in Hong Kong;
4. Whether the deceased had most of the assets in Hong Kong; and
5. Whether the deceased had friends and/or relatives in Hong Kong.
How does domicile affect the application procedures for a Grant in Hong Kong?
1. The deceased died domiciled in Hong Kong
The intended personal representative(s) should make an application to the Probate Registry for a Probate (where the deceased died testate), a Letters of Administration (where the deceased died intestate) or a Letters of Administration with Will Annexed (where the deceased made a Will but no executors can be appointed).
To apply for a Grant, the applicant(s) have to bring along the originals of the Will (if applicable) and the death certificate to the Probate Registry. Once filed into the Court, the original Will (if applicable) and the original death certificate will not be returned to the applicant(s). There are also Specified Forms to be completed for the application. The applicant(s) also have to prepare a Schedule of Assets or Liabilities to set out everything the deceased owned and/or owed in Hong Kong as at the date of his/her death. The same will be attached to the Grant to facilitate the administration of the estate.
2. The deceased died domiciled outside Hong Kong
(1) The deceased died domiciled in the common law countries/jurisdictions under section 49 and Schedule 2 of the Probate and Administration Ordinance (Cap. 10)
These countries include:-
- New Zealand;
- Singapore;
- Sri Lanka;
- The Australian States of Tasmania, Victoria and South Australia and the Northern Territory of Australia; and
- United Kingdom.
If the application for a Grant is not contested, the executor(s) or administrator(s) can first obtain a Grant in the place of the deceased’s domicile. Afterwards, they can apply for the foreign Grant to be resealed in Hong Kong. The resealed Grant has the same legal force and effect as the Grant issued by the Probate Registry. When applying for the resealing of a foreign Grant, the applicant(s) should bring along the followings:-
- The original or certified copy of the Grant issued by the place of the deceased’s domicile;
- Authenticated copy of the death certificate;
- Court certified copy of the Will (if any); and
- The schedule of assets and liabilities of the Deceased in Hong Kong as at the date of his/her death.
(2) The deceased died domiciled in Mainland China
If the deceased, being a PRC resident, had assets in Hong Kong, the executor(s) or administrator(s) should make a fresh application to the Probate Registry for a Grant. If the deceased had immovable property in Hong Kong, the entitlement to the Grant will be governed by the Non-Contentious Probate Rule under the laws of Hong Kong; if the deceased had movable property such as cash at bank or shares, the PRC succession law will be applied. The Probate Registry will rely on the legal opinion by a PRC lawyer explaining who is entitled to apply for the Grant and who is entitled to the distribution of the estate etc.
Where the administration of the estate is governed by the law of succession of the PRC, the Probate Registry will also require the following notarised documents:-
- Certificate of Relationship;
- Certificate of Rights and Inheritance; and
- Death certificate of the deceased.
These certificates are issued by the Notarial Office of the PRC, and have to be authenticated by the authorised Officer of the Consular Department of the Ministry of Foreign Affairs of the PRC.
Conclusion
This article introduces the procedures to the application of a Hong Kong Grant. It is crucial to determine the deceased’s domicile, the content of his/her Will and the nature and whereabouts of the estate. If the deceased died domiciled outside Hong Kong, it is necessary to engage overseas lawyers to work with lawyers in Hong Kong for the administration of the estate.
This article is co-authored by our experienced SW Private Team –Partners Catherine Por and Wendy Lam, and our Senior Associates Karl Wong and Calvin Lo. Please contact Catherine Por or Wendy Lam for any further enquiries or information.
This newsletter is for information purposes only. Its content does not constitute legal advice and should not be treated as such. Stevenson, Wong & Co. will not be liable to you in respect of any special, indirect or consequential loss or damage.