In Hong Kong, as with most other common law jurisdictions, one of the first things to be determined on death is whether the deceased (‘testator’) made a valid will and if so, is the will valid. If the will is valid, then the estate will be governed by the terms of the will, but if not, the deceased will have died intestate and the estate will be administered by the rules.
These rules may not always enable the estate to be devolved in the way the testator intended.
It is important that individuals are advised to make wills so their estates can be gifted to their relatives, friends, charities, etc., and that they are executed in accordance with the statutory requirements.
One thing to take note is that if the testator had assets in multiple jurisdictions, it is advisable for a will to be executed in every one in which he had assets.
People should be aware that while common law jurisdictions have testamentary freedom (in that Testators may leave their estate to whom they wish), non-common law jurisdictions may have forced heirship laws. These laws may require a certain amount of the estate to be left to particular people, even though this may be against the wishes of the testator.
The persons tasked with administering the estate are known as executors. These may be either individuals or corporations.
The executors are appointed in the will and like trustees, they are in a fiduciary relationship. Beneficiaries may be appointed as executors.
In order to gain legal power to act for the estate, the executors must apply for a grant of probate. On receipt of this grant, the executors will be able to deal with the estate in the same way that the testator could when he was alive.
It is increasingly common that wills are challenged by disgruntled persons in the courts. Some jurisdictions (the UK for instance) have legislation whereby the will may be ignored and the courts instead will award monies from the estate to persons they deem as dependants.
Care must be taken when considering the beneficiaries and a variety of external factors taken into account so that in the event of a challenge, the will is more likely to stand up to the testators wishes.
