Probate and the question of domicile

Settling the estate of a deceased person is not always straightforward, especially if their domicile is not Hong Kong. Boase Cohen & Collins Partner Fiona Chan explains the issues.

Hong Kong, 20 August 2020: There are many people who live in Hong Kong but are domiciled overseas. Domicile is different from nationality or permanent residence. It refers to the country or jurisdiction from which a person originally comes or, if they have abandoned that place in favour of another, the new country or jurisdiction. A person may declare his domicile but it is not conclusive in deciding his domicile when a legal issue arises.

Domicile may be a consideration in matters such as marriage, divorce and tax liability, and it is certainly an important element when someone passes away. What happens if the deceased person lived in Hong Kong – and more than likely owned assets here – but was domiciled overseas? In this case, it depends on factors such as the place of domicile, whether there is a Will, and the nature of any assets involved.

Before we go further, here are some essential points to remember. First, in matters of property ownership, Hong Kong law does not differentiate between residents and non-residents, or between nationalities. Second, inheritance issues are dealt with by the Probate Registry, which is a division of the High Court, and the jurisdiction of the Probate Registry covers all the deceased’s property in Hong Kong regardless of domicile.

When a person dies, generally speaking a Grant of Representation has to be obtained from the Probate Registry before any of their assets here can be dealt with. Grant of Representation is the collective term for Grant of Probate or Grant of Letters of Administration, the former being given to the executor (or executrix for a female) named in the deceased’s Will, the latter being awarded to an administrator (usually a beneficiary of the estate in most of the cases) if there is no Will or the executor does not take up the Probate for some reason. Simply, a Grant of Representation enables the holder to deal with the deceased’s estate.

If the deceased’s domicile was New Zealand, Singapore, Sri Lanka, the United Kingdom or certain states in Australia and a grant (equivalent to the Grant of Representation issued in Hong Kong) has been obtained in one of those places, an application may be made to the Probate Registry to reseal the foreign grant. This is usually a simple process.

For people who died domiciled in other countries, a fresh application for grant is required. On this point, it should be noted there are some jurisdictions – notably Japan, Taiwan, Germany and Holland – where the concept of grant does not exist, although a grant in Hong Kong can still be applied for. Again, these are relatively straightforward matters if the deceased died with a Will and a grant has been obtained where he died domiciled.

In cases where the deceased has not left a Will, the Probate Registry will request a foreign legal opinion on the succession law of the place of domicile when considering the grant application. It should be noted as well that sureties or guarantees – which can be in various forms – may be requested by the Probate Registry if the Grant of Representation applicant is a resident of a foreign country or if there is a beneficiary under the age of 18. In certain circumstances, the applicant can seek to have the sureties waived.

Bereavement, naturally, brings significant grief and stress and these feelings can be exacerbated if there are complications in settling the deceased’s estate. Cases where the deceased was domiciled outside Hong Kong are a prime example of this. Dealing with overseas jurisdictions, handling documents that may need translating and authenticating, awaiting rulings from foreign courts – the process can be lengthy, confusing and exhausting. In such circumstances, the services of a fully qualified and experienced legal professional should be considered essential.

Fiona Chan’s core practice areas include Will drafting, estate administration and probate matters, both contentious and non-contentious, while she is an appointed member of the Panel Solicitors for the Official Administrator. She is also experienced in dispute resolution and a wide range of civil litigation. She can be contacted at fionachan@boasecohencollins.com.

Settling a deceased person’s estate can sometimes be a protracted legal process.