Probate Procedure in Hong Kong

Overview of Probate Procedure in Hong Kong

In Hong Kong, unlike in Japan, heirs alone are not free to divide the estate. This applies to property located in Hong Kong, so even if the heir or decedent is Japanese and resides in Japan, it does not make a difference as long as the inherited property is located in Hong Kong. Therefore, if a relative dies in Japan, Hong Kong, or any other country, and in the process of inheriting the deceased’s estate, it is discovered that the deceased had bank deposits or other assets in Hong Kong, it is necessary to take probate procedures (appointing an executor or administrator of the estate to manage and dispose of the inheritance).

Exclusion of small property

If the value of the estate located in Hong Kong is less than HK$50,000, the probate procedure is not required and the deposit can be refunded with a document called a Confirmation Notice. To obtain a Confirmation Notice, a claim must be filed with The Estate Beneficiaries Support Unit of the Home Affairs Department.

Overview of Probate Procedure

Probate procedures for Japanese nationals domiciled in Japan who die leaving property (bank deposits, etc.) in Hong Kong are governed by the Non Contentious Probate Rules (Cap. 10A) of the Hong Kong law, NCPR. The probate procedure differs between cases where the decedent has a will and cases where there is no will. If the decedent has a will, the petitioner files a petition with the court for the appointment of an executor through the Probate process, and the court makes a decision to appoint an executor. The decision to appoint an executor is called Grant of Probate. If the decedent did not leave a will, the estate administration procedure is where the petitioner petitions the court to appoint an administrator of the estate, and the court issues a decision to appoint an administrator. The decision to appoint an administrator is called Grant of Letters of administration. The court’s decision, Grant of Probate and Letters of administration, are sometimes combined and referred to as the Grant of Representation. Once this decision is issued, the executor or administrator has formal authority over the administration and disposition of the estate.

Petitioner for Probate Procedure

As mentioned above, if the decedent’s (the deceased’s) will provides for an executor, the executor will file a petition for probate. If there is no will of the decedent and no executor is stipulated, the legal heirs will file the petition. Under normal circumstances, the wife or children will file the petition as the legal heirs. In practice, a power of attorney will be issued to a lawyer in Hong Kong, and the lawyer in Hong Kong will handle the petition procedures on behalf of the executor and legal heirs in Japan.

The Court

The court where the probate proceedings will be filed will be the Probate Registry of the High Court in Hong Kong. If you are represented by a Hong Kong attorney, there is no need for the petitioner or his/her heirs to go to the Hong Kong court in person.

Grant of Letter of Administration

In Hong Kong, a decedent’s estate cannot be disposed of without the approval of the court (Grant of Probate or Letters of Administration). Violation of this is an offence contrary to Chapter 10 of the Probate and Administration Ordinance (Cap 10), Section 13 and Section 60J.

Notes in the Petition

In addition, the following matters are important for Probate in Hong Kong. All of the following matters must be submitted in form and format together with evidence, and must be verified.

(i) Who is the decedent?
(ii) Address of the decedent
(iii) Whether or not there is a will
(iv) Who is the executor/administrator of the estate?
(v) Who are the heirs?
(vi) What is the decedent’s property in Hong Kong?
(vii) Whether guarantees by guarantors are required or not, and whether they are waived or not.
(viii) Whether the relevant documents have been properly prepared (authenticated)

Whether the simplified procedure is applied or not

The simplified procedure does not apply to Japan as Japan is not designated by the Probate and Administration Ordinance (Cap.10) Schedule 2.

Where the estate in Hong Kong exceeds HK$150,000

If the decedent’s estate in Hong Kong exceeds HK$150,000, it is not subject to the summary procedure but to Rule 29 of the Non-Contentious Probate Rules (Rule 29 of NCPR).

Documents to be attached to the petition

The petition must be filed with all attachments. The following documents are usually considered as attachments, but additional documents may be required in some cases. Documents prepared by Japanese authorities or institutions must be apostilled. Documents prepared by individuals or private organizations must be authenticated by a Japanese notary public, certified by the Ministry of Foreign Affairs, and certified by the Chinese Embassy in Japan. Documents written in Japanese must be translated under oath by a translator.
-Death Certificate of the deceased
-Marriage certificate for spouse
-Birth certificate for parents/children
-Copy of Identity Card/Passport of the deceased
-Copy of Identity Card/Passport of the applicant
-Original Will of the deceased
-Documents related to the decedent’s last place of residence and occupation
-Bank Passbooks, Statement and Time Deposit Receipt
-Survey records of real estate in Hong Kong
-Information on bank safe deposit box (bank branch name, locker number, etc.)

Affidavit of a Japanese lawyer (Affidavit)

Affidavit or Affidavit of Law by Japanese Lawyer is required.

Power of Attorney in Hong Kong

If the administrator of the decedent’s estate is a Japanese national residing in Japan, it may be possible to request a Hong Kong lawyer (solicitor) to file the petition and represent the administrator of the estate. In this case, the estate administrator will not be asked to provide a guarantor.

Guarantee by Guarantor

If a foreign administrator of an estate files a petition, the Estate Administration will require two guarantors in addition to the administrator. Each guarantor must have assets in Hong Kong equal to or in excess of the sum of the decedent’s estate. The surety must guarantee that the administrator of the estate will indemnify the parties interested in the administration of the estate of the decedent’s property for damages suffered by them as a result of the administrator’s breach of his or her duties, within the limitations on the surety’s liability to be determined by the court.

Exemption of sureties

It is very difficult to secure two guarantors. Therefore, if the applicant shows the following two items, upon petition to the Office of the Comptroller of the Estate, the guarantees by the guarantors may be discharged.
(i) That there are no known creditors or known debtors, whether present or potential, of the property, or that all creditors have agreed to the release of the guarantee and have submitted a written agreement.
(ii) That there are no heirs to be guaranteed, or that such heirs have consented to the release of the guarantee (if possible, a written consent must be submitted).

Grant of Authority to Administrator of Property

The Probate Registry of the High Court may from time to time make inquiries throughout the proceedings of the petition, to which the petitioner is required to respond. After these inquiries, a grant of probate or a decision to appoint an administrator of the estate (Letter of Administration) will be issued once the estate’s office has received a favorable impression. Based on the grant of probate or the decision appointing an administrator, the administrator of the estate disposes only of the decedent’s property listed in the grant. If any property of the decedent not listed in the Grant of probate is discovered, the administrator of the estate may petition the Office of the Successor Administrator of the Estate to have such property added to the Grant of probate.

Legal Opinion

The legal opinion must contain the following information
(i) State the facts involved in the case and the applicable Japanese law (cite the relevant article).
(ii) State who has the right under Japanese law to have priority in administering the estate or petitioning for a Grant of probate.
(iii) State the validity of the will, except in cases where the will has been probated by a Japanese court. However, this is not required if the decedent died without a will.
(iv) State whether a Grant of probate is necessary to administer the estate in Japan, and if so, the reason why there is no petition for a Grant of probate in this case. However, under Japanese law, it is not necessary to obtain a Grant of probate to administer the decedent’s property (Civil Code Article 896).
(v) The interests of minors (if the heir is under 8 years of age) and lifetime rights (e.g., trusts) shall be described. The attorney shall describe in detail and clearly the conclusions and the process leading to the conclusions.

Qualifications of Persons Preparing Legal Opinions (Rule 18 of the Non Contentious Probate Rules)

The person preparing the legal opinion must have practiced as a lawyer for at least five years, and the legal opinion must be accompanied by evidence concerning it.

Protection of the Interests of Minors

If the interests of a minor are at issue, two or more administrators of the estate are required. In this regard, although two administrators of an estate are not required in Japan, they are required in Hong Kong under Section 25 of the Probate and Administration Ordinance (Cap 10).

Duties of an administrator of an estate

The court-appointed executor has full power to dispose of the estate in accordance with the will. Similarly, a court-appointed administrator has all the powers to dispose of property in accordance with the law. The executor or administrator will sell or dispose of real estate in Hong Kong, close bank deposits, pay taxes and other debts, and distribute the remaining property to the heirs as provided in the will or by law.

Estate Tax in Hong Kong

Hong Kong’s estate tax has been abolished, so no estate tax is imposed on the estates of persons dying on or after February 11, 2006. The same applies to both Hong Kong residents and non-residents of Hong Kong.

Estate Administration Procedures in Hong Kong

Hong Kong and Japan have different legal concepts and procedures regarding probate. In Hong Kong, upon a person’s death, the person entitled to petition for probate must petition the High Court for a grant of probate (if there is a will) or a writ of administration of the estate (if there is no will). In Japan, on the other hand, there is no such system of probate (however, the system of “probate” may apply even in the case of inheritance in Japan).

Method of Determination of Governing Law by Hong Kong Common Law

The common law system in Hong Kong focuses on the domicile of the decedent and considers the law of the country where the domicile is located to be the governing law and jurisdiction for the administration and succession of the decedent’s estate. A domicile is a place of permanent residence with the intent to reside. A Hong Kong national who resides in Japan with the intention to reside in Japan is considered to have domicile in Japan. In addition, a Japanese national residing in Hong Kong is considered to have domicile in Hong Kong even if he/she is a Japanese national, and Hong Kong law may apply.

Division of Inheritance Principle under Hong Kong Law

In addition, Hong Kong has an inheritance division principle, so the law of the location of the property (land, buildings, apartments, condominiums) will apply to real estate (land, buildings, apartments, condominiums). For example, if a Japanese person owned real estate in Hong Kong, Hong Kong inheritance law would apply. Conversely, if a Hong Kong person owned real estate in Japan, Japanese inheritance law would apply. In contrast, for movable and liquid assets (cash, shares, and personal property), the laws of inheritance of the domicile (place of residence with intent to reside) held by the individual at the time of death will apply. In the case of a decedent who was a Japanese national residing in Japan, the domicile is located in Japan, so the inheritance laws of Japan will apply. As a result, if a Japanese national residing in Japan dies leaving a condominium and a bank deposit in Hong Kong, Hong Kong law will apply to the condominium with respect to the scope of heirs and the portion of inheritance, whereas Japanese law will apply to the bank deposit with respect to the scope of heirs and the portion of inheritance.

Private International Law in Japan

Article 36 of the General Law Concerning the Application of Japanese Law states that “inheritance shall be governed by the law of the decedent’s home country. Since Japan adopts the principle of uniformity of inheritance, when Japanese private international law is applied, the law of the decedent’s home country will be applied to property located anywhere in the world. Therefore, according to Japanese private international law, if the decedent is a Hong Kong national, the laws of Hong Kong will apply to the inheritance no matter where the property is located. Conversely, if the decedent is Japanese, Japanese law will apply to the inheritance no matter where the property is located.

Death of a Japanese national (resident in Japan) with property in Hong Kong

If a Japanese resident in Japan dies leaving property in Japan and Hong Kong, according to the Japanese common law, the laws of Japan, the decedent’s home country, will apply to all inheritances. However, for the administration of property located in Hong Kong, a petition will be filed with the Hong Kong court, and in that case, the Hong Kong court will determine the governing law based on Hong Kong’s private international law. Under Hong Kong private international law, the law of Hong Kong will be the governing law for real property located in Hong Kong, whereas the law of the place where the decedent’s domicile is located will apply to movable property and liquid assets. As a result, for movable and immovable property located in Japan, the Japanese family court will make the decision, so Japanese private international law will apply and Japanese law will be the governing law. For movable and immovable property located in Hong Kong, a petition for probate will be filed with the Hong Kong court, so the private international law of Hong Kong will apply. As a result, under the split inheritance principle, the real estate located in Hong Kong will be governed by Hong Kong law where the property is located, while the movable property and liquid assets located in Hong Kong will be governed by Japanese law since the decedent’s domicile is in Japan. Even if Japanese law is the governing law for movable and liquid assets located in Hong Kong and heirs and inheritance shares are determined in accordance with Japanese law, there is no problem to go through the Hong Kong probate procedure for movable and liquid assets located in Hong Kong because the administration of the estate will be subject to Hong Kong procedures.

Death of a Japanese national (resident in Hong Kong) with property in Hong Kong

If a Japanese resident in Hong Kong dies leaving property in Japan and Hong Kong, the private international law applicable to the property located in Japan will depend on whether the proceedings are filed in Japan or Hong Kong. If the proceedings are filed in a Japanese court, Japanese common law will determine the governing law, so the law of the decedent’s home country, Japan, will be applied to all inheritances. However, for the administration of property located in Hong Kong, a petition will be filed with the Hong Kong court, in which case the Hong Kong court will determine the governing law based on Hong Kong’s private international law. Under Hong Kong private international law, the law of Hong Kong is the governing law for real property located in Hong Kong, whereas the law of the place where the decedent’s domicile is located applies to movable and liquid assets. In this case, since the decedent is considered to have domicile in Hong Kong, Hong Kong law will be the governing law.

Attorneys’ Fees for Petition for Probate or Administration of Property

The fees for a Hong Kong attorney in a probate or estate administration proceeding will vary depending on whether the property located in Hong Kong includes only bank deposits or real estate and other property as well. Even in the case of bank deposits only, it also depends on whether there are deposits in more than one bank, and whether there are more than one or two accounts. In the case of a simple procedure that does not require the protection of minors, the typical fee for a lawyer in Hong Kong is from 400,000 yen to 600,000 yen. In addition, if a Japanese national wishes to administer property in Hong Kong, it is necessary to collect the relevant documents in Japan, translate them into English in Japan, and send them to Hong Kong, which will require a separate fee for a Japanese attorney. The amount of fees (initiation fee) for a Japanese attorney varies depending on the value of the inheritance in Hong Kong, but in the case of our firm, it is usually between 600,000 yen and 1,200,000 yen.

Introduction of columns on inheritance procedures from around the world

We would like to introduce you to columns we have written on inheritance procedures in countries around the world other than Hong Kong. Please click on the titles of the columns below to learn more about estate planning procedures in each country.

• ・Probate Procedure in New York State
• ・Inheritance in California
• ・Inheritance in Hawaii
• ・Inheritance in the United Kingdom
• ・Inheritance in Switzerland
• ・Probate Procedure in Singapore
• ・Inheritance of Korean Nationals in Japan

Services we can provide

We can provide support for all procedures related to international inheritance in cooperation with local attorneys, including preparation of legal opinions regarding the scope of heirs, etc., collection and English translation of family registers and other necessary documents, and authentication procedures at embassies and the Ministry of Foreign Affairs.

If you have any questions about international inheritance, please feel free to call us at 03-5357-1750 (office hours: 9:00-18:00) or contact us via e-mail form (“https://kslaw.jp/contact/”).