To Will or not to Will

The matter of preparing a will is deeply personal and one that many individuals postpone until they are well into their years. 

Often we are asked when an individual should have a will in place.  Taking a moderate approach, any person who is married (with or without children) should consider having a will.  Why is that? 

Under the Hong Kong intestacy regime which applies to individuals with domiciles in Hong Kong, married couples with no children will see part of his/her estate (the first HK$1,000,000 and 50% after the first HK$1,000,000) distributed to the surviving spouse and part of it (50% after the first HK$1,000,000) distributed to his/her living parents (Cap. 73). Naturally, that might be what the deceased spouse may have wanted but if not, then having a will would enable that spouse to appoint the desired beneficiaries.

For parents with young children, a will could provide a means to appoint guardians for the young children in the event of both parents predeceasing.  Furthermore, the intestate regime contemplates that the surviving spouse will receive the first HK$500,000 and thereafter, the residuary will be distributed as to 50% to a spouse, and 50% to children in equal shares (Cap. 73).  In cases of parents with young children who are minors, it might not be desirable for 50% (after the first HK$500,000) of the deceased spouse’s estate to be held for the benefit of the minors.  Furthermore, in the case of intestacy with minor children, the surviving spouse would have to apply for letters of administration with another person as the requirement in law is to have two administrators, if there is any minor in the estate.

Other considerations, for instance, if an individual has assets in more than one jurisdiction, would include whether such individual should have more than one will.  With one will, that one will would have to be probated (proved at the relevant courts of the relevant jurisdiction) first before the processes of obtaining a grant of probate can commence in other jurisdictions where the deceased holds assets.  If there is more than one will, then the processes to obtaining a grant of probate can simultaneously proceed in each jurisdiction in which there is a separate will, thereby facilitating the processes.

The above only scratches the surface of the topic of wills, but the message is clear, if you do not have a will, you should consider having one.

Eddie Look

For non-contentious Wills and Trusts matters please contact: Eddie Look.

For contentious Wills and Trusts matters please contact: Mark Side or Pamela Mak.

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.