Creating A Will - hklegal
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Create A Will

A Will is a legal document which sets out how a person’s assets are to be distributed after his or her death. The person making the Will is called the “testator”(if male) or “testatrix”(if female).

When a person dies, there may be estate (the money in bank accounts, company shares, real estate and other assets, etc.) left under the deceased’s name, such as property, stocks, cash and jewellery. Writing a will is the best way of making sure your assets end up with who you want.

Keeping your will properly

You should keep your will properly after you make it or else your wishes may not be implemented if your will is lost subsequently. You may choose to keep your will at home or other private premises. But you should make sure that the will would not get lost easily and that your executor knows how to locate it. As there might be many years between the time you make your will and your passing away, it is quite possible that you might lose the will when you move or renovate your apartment, or you might forget about it due to a decline in your memory as you get older. Keeping your will at home, therefore, carries a certain degree of risk.

Safer ways would be to make your will through a law firm or to keep it in a bank safety deposit box. When your time on earth is through, your executor could easily retrieve your will from your law firm. If he or she has no idea through which firm you have made your will, he or she may search for it through the Hong Kong Law Society.

On the other hand, even if your executor himself has no right to open up your safety deposit box, he may obtain such right through the Department of Home Affairs in order to locate your will. These measures largely prevent your wishes from going nowhere simply because you might have forgotten where you put your will, or because it has been lost somewhere (section 60D of the Probate and Administration Ordinance (Cap. 10)) “

Our services on will include:

A simple will

Benefits of creating a will

When a person dies, there may be estate (the money in bank accounts, company shares, real estate and other assets, etc.) left under the deceased’s name, such as property, stocks, cash and jewellery. Writing a will is the best way of making sure your assets end up with who you want.

may designate any beneficiary (irrespective of any relationship) and his or her share of the profits.
Can appoint specific assets (e.g. specific property), executors (>21 years old) and guardians (for underaged children)
No proof of relationship required when applying for probate by a descendant
There is no charge on Stamp Duty/Stamp Duty for transferring the property to the beneficiaries (If the property is not transferred to the beneficiaries as specified in the will, e.g. a close relative transfers a property of HK$4 million, the Stamp Duty will be applicable which could be more than HK$100,000).
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Anyone over the age of 18 can make a Will. A will is a legal document that sets out how a person's assets are to be distributed after their death.

Our firm's services on probate distribution include:

  • Drafting of wills and provision of related legal advice
  • Amendment of existing wills and provision of related legal advice
  • Handling of probate matters
  • Arrangement of estate distribution and other legal formalities
  • Legal advice on handling disputes over inheritance and other related matters and the allocation of estate
  • Setting up family or charitable trusts and related professional services

Enduring Power of Attorney - Effective While Alive

To put it simply, an EPA is a legal document that allows a person who wishes to give his/her power of attorney to someone to appoint one or more attorney(s) to take care of his/her financial and medical matters in the event that he/she subsequently becomes mentally incapacitated, and do so while he/she is still mentally capable. The person who wishes to establish the EPA and give his/her power of attorney to someone is referred to as the donor. Unlike a normal power of attorney that will cease to have effect as soon as its donor becomes mentally incapacitated, the EPA will continue to be in effect.

Unlike an ordinary power of attorney, which expires when the client loses his or her mind, an enduring power of attorney remains in force. An EPA has a prescribed form and must be witnessed by a solicitor and a registered medical practitioner.

An Enduring Power of Attorney is a legal arrangement whereby a client can appoint someone in advance whom he or she trusts to manage and protect his or her finances in Hong Kong during his or her mental incapacity. Since the client has already chosen someone to handle financial matters in Hong Kong, the family no longer needs to worry about filing a court application, which help save the extra cost and relieve stress.

Frequently Asked Questions (FAQs)

Frequently Asked Questions on Making a Will?

  • The court certification process is complex, cumbersome and not easy to understand.
  • Enormous cost in the professional legal services
  • The procedures for the distribution and disposal of property is relatively long, with the average freezing period ranging from one to three years, and even more than five or seven years.
  • Sometimes, family members fight over property, which leads to great discontent and family scandals.
  • When no legal heirs can be found, the estate will be “forcibly confiscated.”
  • Lack of privacy and confidentiality

There are certain risks of a handwritten will. That doesn’t mean a handwritten will is necessarily going to be deemed invalid, though. A probate judge may have to examine evidence to determine whether one was actually prepared by the decedent. As a result, the will was not enforceable and the will became intestate. Although you can make a Will by yourself, it is advisable to seek help from a solicitor. This will save time and legal costs should it be necessary to prove (after your death) your intention and mental capacity at the time you prepared and signed the Will. A well-drafted Will can also minimize potential disputes among your family members and inheritors.

When a person dies, there may be estate (the money in bank accounts, company shares, real estate and other assets, etc.) left under the deceased’s name, such as property, stocks, cash and jewelry. Writing a will is the best way of making sure your assets end up with who you want.

It is not necessary to hire a lawyer to apply for will but the legal requirements required for writing a will, e.g. witnesses, must be met and the content must be clear because the will cannot be changed once the person has passed way. A lawyer usually charges around HKD 1,000 for creating a simple will.

The testator must be of sound mind when creating a will. A serious illness does not necessarily mean that the testator is of unsound mind.

In some cases, the elderly may not be able to express themselves clearly or their speech may be affected due to their illness.

There are certain things we need to pay attention to when writing a will. The beneficiary must not be a witness, otherwise he or she will not be able to inherit the estate. Since the contents of the will must be the testator’s will, he must know that it is of his own choosing, and therefore if he can read, it is valid as long as he knows that he has seen and understood the will. If it is to be read aloud to him, he must know from his reaction whether he understands its contents clearly, and if in doubt, the diagnosis of the attending physician should prevail.

Unless otherwise provided in the Wills Ordinance, a will is void if it fails to meet the following requirements.

 

  1.  
  1. in writing and signed by the testator, or by some other person in the presence of and in accordance with the directions of the testator. it appears that the testator intended to give effect to the will by his signature.
  2. the signature of the testator is made or acknowledged before 2 or more witnesses, both present at the same time; and Each witness before the testator (but not necessarily before the other witnesses). -to witness and sign the will; or – acknowledges his signature without being in any form of testimony.

Any document purporting to embody the testator’s wishes, notwithstanding that it has not been made in accordance with the foregoing, shall be deemed to have been duly executed, on application being made, and the court being satisfied beyond reasonable doubt that it embodies the testator’s wishes.

    1. The contents of the will are not what the testator wished for, if the testator signed the paper in a state of insanity, or was coerced or tricked into signing something other than what he wished, or even misled into signing another document, such as a lease if someone falsely claimed it was a lease.
    2. Signed without complying with the requirements of the law, e.g. with only one witness (the law requires two) or where the contents do not appear to be a will at all, it may just be a family letter.

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