Death and probate processes may be an unwelcome topic in Hong Kong, but Alex Chung, Associate, Withersworldwide, recommends some basic due diligence measures that can help streamline the probate process for both individuals and family businesses.
The Covid-19 pandemic has brought unprecedented changes to how government departments around the world operate as they have to work at a reduced capacity. This has also resulted in unexpected delays to probate processes. For instance, it is not as easy (and efficient) as it was before to obtain authenticated foreign public documents (such as death certificates) in some countries.
Furthermore, unnecessary complications could arise if the deceased person’s will has not been regularly reviewed before his or her passing, as some of the information in his or her will may no longer be applicable. While wills and death have always been taboo subjects in Hong Kong, regularly reviewing your will would generally help streamline, although not eliminate, the probate processes so that your loved ones can access those ‘frozen’ assets more quickly after you have passed away.
The benefits of regularly reviewing a will
For those who already have a will in place, you may want to review it to see if any important events have happened since you last executed it. These important events would include, but not be limited to, marriage, divorce, birth, death, relocation, purchase of an overseas property and change in tax laws. If one or more of these important events have happened but your will has not been reviewed and updated appropriately, there could be unexpected issues and delays with respect to the probate process. Below are a few examples of how these events may affect your will.
A will is generally revoked by the testator’s subsequent marriage. If the testator has remarried, it is generally advisable for the testator to update his or her will.
Divorce or death
If the testator has divorced or if a family member has passed away, the appointment of the former spouse or the deceased family member as executor and any testamentary gift in favour of that person will generally lapse.
If all of the named executors have predeceased the testator, one will need to look to the applicable probate rules to determine who has the highest priority to become the administrator of the estate. Importantly, the question of which probate rules should apply depends on the law of the place where the deceased was domiciled when he or she died. If the place of domicile of the deceased was outside Hong Kong, a foreign legal opinion will be required and this will likely lengthen the probate process.
If the testator has a new child after executing his or her will, that child may not necessarily be included in the class of the beneficiaries under the will, depending on how the will was drafted.
If you relocate to a new jurisdiction on a long-term basis, it would generally be advisable to review and consider updating your will. This is particularly true if you are going to relocate to a non-common law jurisdiction because your will, even though it is formally valid, may not necessarily be valid with respect to its substantive contents. For instance, in some jurisdictions, there could be a forced heirship regime under which a testator’s freedom to choose how his or her property is to be divided upon his or her death is restricted.
Purchase of an overseas property
If you have purchased a property in a non-common law jurisdiction (such as the Mainland), your common law will may not necessarily be recognised in that non-common law jurisdiction. Even if you have a will in that non-common law jurisdiction, you should always make sure the execution of that will did not inadvertently revoke your common law will. Inconsistencies among separate situs wills could also cause problems in getting the wills probated.
Change in tax laws
While this is not normally an issue for families based in Hong Kong without any overseas connections, if any beneficiary is a citizen or resident of a high-tax jurisdiction or is going to relocate to that jurisdiction, you may want to consider any changes in the tax laws of that high-tax jurisdiction when you review your will.
Probate due diligence
For those who do not have a will at all, you should consider taking steps to ensure that your loved ones are properly provided for when you are no longer around. This is especially true if what the intestacy rules dictate would be different from what you would have intended to provide for in your will. Also, if you have any dependants who are not entitled to anything under the applicable intestacy rules, it would be beneficial to provide for such dependants in your will. Otherwise, there could be a risk that such dependants may take the matter to the court, and, for example, in Hong Kong, make an application to the court for financial provision from your estate under the Inheritance (Provision for Family and Dependants) Ordinance (Cap 481 of the Laws of Hong Kong).
It is also helpful to the probate process to update your list of assets and liabilities from time to time (for example, when a significant asset is acquired). It is advisable to provide a copy of the list to your executors or, if you do not feel comfortable doing so, to your estate planning lawyer who will keep that together with your original will. Doing so could speed up the probate process, as your executors could avoid all the hassle of figuring out what assets and liabilities are involved in your estate.
On a related note, given that the probate process in Hong Kong can be time-consuming, it is also useful to consider family business succession issues, particularly if the family business in question is owned and controlled by a sole shareholder/director (which is not uncommon in Hong Kong). In this scenario, the sole shareholder/director may want to consider appointing a reserve director. If the sole shareholder/director of a Hong Kong private company passes away without a reserve director being validly appointed, then the company will not have any director to exercise its powers. As the sole director is also the sole shareholder, there will not be any person (whether shareholder or director) who can appoint a new director. The company is effectively at a standstill until after a grant of representation is obtained. If a reserve director has been appointed, he or she can act in the place of the sole director immediately upon the sole director’s passing.
Alex Chung, Associate