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Note

1. This section has no legal effect. In case of queries, please consult your lawyer or seek legal advice through the Free Legal Advice Scheme of the Duty Lawyer Service.

Introduction

1. This section aims to explain in simple terms the intermeddling provisions introduced into the Probate and Administration Ordinance (Cap. 10) by the Revenue (Abolition of Estate Duty) Ordinance 2005. Such provisions are applicable to the handling of the estate in Hong Kong of a person who died on or after 11 February 2006.
   
2. The Estate Duty Ordinance (Cap. 111) provides for sanction against the intermeddling of estates. The provisions therein are mainly for revenue protection purposes, but incidentally also protect the interests of the beneficiaries in the estate. Following the abolition of estate duty in respect of the estate of persons who died on or after 11 February 2006 , the protection afforded under the Estate Duty Ordinance falls away. In order to safeguard the interests of the beneficiaries in the estate or properties of the deceased person, provisions of similar effects have been introduced in the Probate and Administration Ordinance.

The Intermeddling Provisions

Schedule of Assets and Liabilities of the Deceased Person

1. A schedule of assets and liabilities of the deceased person located in Hong Kong would serve as a ready reference for parties with a legitimate interest in the estate. The law requires the applicant for -

   1. summary administration of the estate;
   2. grant of probate or letters of administration; or
   3. sealing of a grant issued by a foreign court of probate

   
   to prepare and file with the Probate Registry an affidavit exhibiting a schedule of assets and liabilities of the deceased person in support of the relevant application. Corrective affidavits and additional schedules to correct any omission or inaccuracy in the schedule of assets and liabilities are required if such is detected subsequently.

Legal Responsibilities of Executor, etc.

1. The executor of the deceased person or the person entitled in priority to administer the estate may not take possession of or administer any part of the estate unless he has filed with the Probate Registry an application for grant of representation. However, the law also provides for a "prescribed period" during which the executor or the person entitled in priority to administer the estate may take possession of or administer such estate without having first filed an application for grant as long as his/her application is subsequently filed within the prescribed period. This allows time for the executor or the person entitled in priority to administer the estate to collect information regarding the assets and liabilities of the deceased person and deal with urgent issues related to the estate.

2. Any executor or person entitled in priority to administer the estate who -

   1. takes possession of or administers any property of the deceased person within the prescribed period and fails to file with the Probate Registry an application for grant (supported by an affidavit exhibiting the schedule of assets and liabilities of the deceased person) on the expiry of the prescribed period;
   2. takes possession of or administers any property of the deceased person after the expiry of the prescribed period without first filing with the Probate Registry an application for grant (supported by an affidavit exhibiting the schedule of assets and liabilities of the deceased person); or
   3. handles any property of the deceased person that is not in the schedule of assets and liabilities (or the additional schedules) filed with the Probate Registry in support of the application for grant,

   commits an offence.
   

3. The "prescribed period" is 18 months from the date of death of the deceased person in cases where an application for sealing of a grant issued by a foreign court of probate is involved; in all other cases, the prescribed period is 12 months from the date of death of the deceased person.

Legal Responsibilities of Other Parties

1. It is an offence for any person to deal with any part of the estate of the deceased person that is not set out in the relevant schedule of assets and liabilities or additional schedules without lawful authority or reasonable excuse.
   

2. It is also an offence for any person to take possession of or in any way administer any part of the estate or any part of the income of the estate without lawful authority or reasonable excuse, or without first filing with the Probate Registry an application for grant supported by an affidavit exhibiting a schedule setting out the relevant part of the estate.

Protection for Bank and Staff

1. The Director of Home Affairs, under the delegated authority by the Secretary for Home and Youth Affairs, may issue on application -

   1. a Certificate for Necessity of Release of Money from the bank account(s) of the deceased person under special circumstances to meet -

      1. funeral expenses of the deceased person;
      2. maintenance of former dependant(s) of the deceased person;
   2. a Certificate for Necessity of Inspection of Bank Deposit Box;
   3. a Authorization for Removal from Bank Deposit Box; and
   4. a Confirmation Notice in respect of small estate wholly made up of money not exceeding $50,000 in aggregate,

   
   to relieve possible hardship following the death of the deceased person and to facilitate the administration of the estate. If an employee of the bank has followed the provisions set out in the relevant certificate/authorization/notice and has acted in good faith and exercised due care in performing the function(s), the bank and the employee in question shall be regarded as having acted with lawful authority. Furthermore, the bank and the employee shall not incur any civil liability for such actions relating to the certificate/authorization set out at (a) to (c) above.
   

2. The law also provides for specific arrangements in respect of "jointly rented safe deposit box with survivorship arrangement" (i.e. where the box is kept pursuant to an agreement under the terms of which the access to the contents of the box of any renter of the box is not affected by the death of any other renter of the box). The bank may allow the surviving renter to exercise his right of access to the box on the expiry of 12 months after the death of the deceased joint renter provided that an inventory of the contents of the box has been prepared in accordance with the legal requirements. Where an employee of the bank has acted in good faith and exercised due care in allowing the surviving renter to exercise that right, the bank and the employee shall, for the purposes of the intermeddling provisions, be regarded as having acted with lawful authority.

Exemption from Intermeddling Provisions in respect of Small Estates

1. In order to facilitate the administration of small estates, the Director of Home Affairs, under the delegated authority by the Secretary for Home and Youth Affairs, may issue on application a Confirmation Notice in respect of a small estate -

   1. wholly made up of money not exceeding $50,000 in aggregate as at date of death; and
   2. where the deceased person did not hold any property as trustee or as the manager of a Tso or Tong as at date of death.
      
      
2. Where the Confirmation Notice is in force, the taking possession of or administration of the money as set out in the schedule attached thereto by the holder and any act incidental thereto shall be exempted from the relevant intermeddling provisions. However, the holder of the Confirmation Notice is still legally obliged to appropriately discharge his role as the executor or the person entitled in priority to administer the estate.
   
   
3. For more information on how to apply for a Confirmation Notice, please click here.

Enquiries

1. If you wish to obtain further information on applications for summary administration of estate, grant of probate or letters of administration or sealing of a foreign grant, you may contact the Probate Registry.

2. For information on applications for Certificate for Necessity of Release of Money, Certificate for Necessity of Inspection of Bank Deposit Box, Authorization for Removal from Bank Deposit Box and Confirmation Notice, you may contact the Estate Beneficiaries Support Unit.