Anyone over the age of 18 can make a will (commonly known as a “safety note”). A will is a legal document that sets out how a person’s assets will be distributed after his death. The person who makes the will is called the “testator”.

The testator can:

Decide how to distribute your estate to your loved ones rather than according to intestate succession laws;
leaving certain assets to persons with whom you are not related, such as friends and charities;
Appoint one or more executors (but not more than four) to manage and distribute the relevant assets.

If the deceased dies intestate, the distribution and administration of his or her estate will be governed by the laws of intestacy.

Have a will

If the deceased made a Will before his death and appointed an executor, the executor is the only person eligible to apply for Grant of Probate. If the executor does not want to perform the task, or there is no living executor, then the person who receives the remaining estate in the will will have priority to apply for letters of administration (with a will). A person who is eligible to receive a residuary bequest can receive the remaining amount after other conditions listed in the will are met (that is, after deducting the inheritance received by all beneficiaries, all debts of the deceased and related expenses of the estate administration), the remaining number).

intestate

If the deceased died without a will (that is, no will can be found, or the will has been revoked), you must apply for letters of administration in accordance with the laws of intestacy. According to section 21 of the Uncontested Probate Rules (Chapter 10A of the Laws of Hong Kong), the priority of persons entitled to apply for letters of administration is as follows:

The surviving spouse, or the surviving partner or partners of a concubineage entered into before 7 October 1971;
The children of the deceased include any children born of a concubineage entered into before 7 October 1971, or the descendants of any such children who died during the lifetime of the deceased;
the father or mother of the deceased;
A brother or sister of the deceased, or the descendant of any deceased brother or sister of the deceased who died during the lifetime of the deceased.

There can be up to four administrators. If there are multiple persons who are equally qualified to apply for letters of administration and they have disputes over the application, they can apply to the High Court to let the court decide who can be appointed as the administrator.

The High Court also has the power to appoint persons not within the above categories to administer estates. The court may exercise this power if an administrator is appointed to a close relative of the deceased who is under the age of 21 or is mentally or physically incapable of administering the estate.

Although the powers of an executor and an administrator are generally the same, there is one important difference.

The executor’s powers are derived from the relevant will and therefore his/her powers and responsibilities begin at the moment of the testator’s death.

The administrator, on the other hand, derives his powers from the letters of administration. Therefore, the time when he/she starts to exercise the power is on the date in the letters of administration, not on the date of death of the deceased.