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歡迎收聽「長者法網智多聲」。「長者三寶」，即持久授權書、遺囑和預設醫療指示之中，相信大家最常聽到的就是遺囑，亦即是「平安紙」。這一節我們會為大家說一下遺產承辦和遺囑。
一般來說，您可以決定自己的財產怎樣分配和留給誰，好像是留給親人、朋友或慈善機構等，只要在平安紙上寫清楚就可以了。平安紙可以說是您跟家人傳達的最後訊息，這樣重要，訂立之前，最好還是先諮詢律師。
任何年滿18歲而又精神健全的人，都可以訂立平安紙。平安紙必須要白紙黑字寫下來，您要在兩名見證人同時在場之下，在他們面前，在平安紙上簽名。兩名見證人之後亦必須在您面前，在平安紙上簽名。平安紙最好先寫上日期，然後再簽名。要留意了，兩位見證人，不可以是您的遺產受益人或他們的配偶，否則他們將來便拿不到您的遺產。
您可以在平安紙上，指定一至四個可靠的人，擔任您的遺產代理人，他們會代理您的財產，直至管理及分發工作完成為止。遺產代理人可以同時是您的遺產受益人，但記得要寫清楚。
如果訂立平安紙之後想更改，可以用同樣的方法，再訂立一份新的平安紙，記得寫明原本那一份已經取消了。
在考慮怎樣寫平安紙之前，有某些事您可能要先想清楚。舉例說，如果遺產受益人還未夠18 歲，您可以在平安紙寫明，等他到了某個年紀，才可以繼承遺產，期間遺產代理人會代為托管這筆遺產。如果遺產受益人因為殘疾不能夠照顧自己，您也可以在平安紙上委任信託人，代為管理他繼承到的那一筆財產。除了如何分配遺產之外，平安紙亦可以交代您想如何安排身後事。
若您年事已高、曾經中風、患有老人癡呆症、或患有其他可能影響您精神狀況的重病，記得要在訂立平安紙之前，先找醫生檢查和紀錄您的精神狀況，以免日後家人說您訂立平安紙時精神錯亂，要求法庭推翻您的平安紙。
訂好平安紙以後，記得要放好，還要告訴遺產代理人平安紙放在哪裡。
如果沒有訂立平安紙又如何呢？根據法例，您的親人可以有不同優先次序，申請成為您的遺產代理人，代理您的財產，直至管理及分發工作完成為止。
在扣除您的債務、稅項、葬禮及法律等費用以後，您的財產會根據法律，按次序分配。在一般情況之下，在生的配偶和子女，會優先分得您的財產。如果您只留下丈夫或妻子、沒有子孫；或是有子孫在生，但配偶已經過身；甚至是有私生子女，又或是在1971年10月7日之前納了妾侍，不同的情況，分配財產的方法都不同。如果想知道更多，可以參考長者社區法網文字版。這一節就說到這裡，謝謝大家收聽。
PrintWhat concerns you should have when making your will?
Although this is not an exhaustive list, you may take the following points as a basic reference:
Funeral Arrangements
You may indicate in your will your preferred form of funeral and burial arrangements, e.g. land burial or cremation, Taoist, Buddhist or Christian ceremonies etc., but it should be noted that these are only expressions of wishes and have no legal effect. Therefore, you may choose to prepare a document to record the wishes and details of your funeral and burial arrangements in addition to the will, and then put this document near the will so that your relatives and friends can find it easily in the future. You can also update this document on funeral and burial arrangements from time to time instead of revising your will every time.
Personal items
If you have not stated in your will who should take your personal items such as furniture, clothing, accessories, vehicles or other items of memorable value, those items would be considered as part of the your estate and will be sold and then distributed in the form of money.
Too young a beneficiary
If a beneficiary of your will has not reached the age of 18 by the time you pass away, your executor would normally put the assets that you leave behind for that beneficiary on trust until he or she reaches 18. If you are worried that it is not good for the growth of your child or grandchild to succeed your assets at too young an age, you may specify in your will that your full assets can only be received at an older age (e.g. 25 or 30) and that before then your child or grandchild can only receive small sums for their daily and educational expenses.
Disabled beneficiary
If a beneficiary of your will is unable to look after him/herself due to disability, you may appoint a trustee to manage the assets that you leave behind for him/her.
Your beneficiary unfortunately passes away before you do
According to section 23 of the Wills Ordinance (Cap. 30), if a descendent of yours is a beneficiary of your will and he/she passes away before you do, leaving behind descendent(s) of his/her own, then generally his/her descendent(s) will take over the assets that you originally leave behind for your fallen descendent. You can also specify the backup arrangements when you make the will, for example, which alternate beneficiary (or beneficiaries) you would like to leave the estate intended for your daughter to in the event that your daughter passes away before you do.
Charitable Donation
In addition to distributing your estate to family and friends, many people choose to make a donation to charitable organisations to perpetuate their personal beliefs and values while leaving a little warmth in the world. Instead of making a donation now, legacy giving means designating charitable organisations as beneficiaries in your will and distributing a portion of your estate to them.
In fact, you can make a legacy donation to any organisation you support, whether it is a registered charitable organisation or a business, but it must be a “legal entity” that can inherit the estate. For example, if you wish to make a donation to a Buddhist temple in your community and it is not itself a registered company, a registered business, a registered society, or a corporation established through an ordinance, but is operated by a Buddhist organisation (which is a limited company), you need to specify in your will that the estate is to be given to that Buddhist organisation for the purpose of operating the Buddhist temple. In general, the will should include information about the legal entity of the charitable organisation, such as its business registration number. It is not necessary to state the licence number of the charity exempted from tax under section 88 of the Inland Revenue Ordinance.
If you wish to donate real estate property to a charitable organisation after your death, the following situations would be appropriate for such a charitable donation:
- you are the sole owner of the property; and
- you specify in the will that the executor will sell the property and then donate all or part of the proceeds.
Medical Certification
If you are rather old, suffering from stroke, Alzheimer’s disease or any other severe diseases that may affect your mental condition, you should invite your attending doctor, or even a neurologist or a psychiatrist, to examine and record your mental condition when you make your will (preferably on the same day). This is to prevent your family from attempting to use poor mental condition as a reason for challenging your will in court.
Estate Duty
Estate Duty was abolished on 11st February, 2006. Under the current laws of Hong Kong, there is no need to consider the question of estate duty for those of you who survive beyond that date.
Can I not leave any asset to my wife or my infant children?
Generally speaking, you have the freedom to decide how to distribute your estate. Differently put, you may by your will decide to whom you would and whom you would not leave your assets. As said before, you may even not leave a dime to your families but leave it all to charities or, perhaps, your caretaker or neighbours who have taken care of you. However, persons who have been dependent on your financial support for a living or to whom you owe the moral obligation of financial support, such as your wife, infant children, aged parents, or even a mistress, may apply to the court for an order that certain parts of your estate shall be given to them to maintain their living.
(Section 3, 4 and 5 of the Inheritance (Provision for family and dependents) Ordinance (Cap. 481))
Is your will going to be cancelled automatically if you get married or divorced after you make it?
If you get married after making it, your will would generally be cancelled automatically. If at the time of making the will, you are expecting to marry someone, you should make it clear in the will that it will continue to be valid even if you marry that person (who must be identified in the will) in the future. In contrast, if you get divorced after making it, your will would generally not be cancelled automatically. But if, in your will, you have appointed your ex-husband or ex-wife to be your executor, or if you have left behind any assets to him/her, those parts of your will would be cancelled automatically (section 14 and 15 of the Wills Ordinance (Cap. 30).
Keeping your will properly
You should keep the original copy of your will properly after you make it or else your wishes may not be implemented if your will is lost or damaged 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. In the event that the original copy of the will is lost or damaged, a new one should be made as soon as possible to replace the old one. If the executor is a reliable person who is younger than you, you may consider handing over the original copy of the will to the executor for safekeeping.
In the past, some solicitors firms were willing to keep the original copies of the wills for their clients, but nowadays, due to practical considerations, very few solicitors firms are willing to provide this service. If the deceased has made a will through a solicitors firm and deposited the original copy of the will with that firm, then the executor may try to contact that firm to obtain the original copy of the will. If he or she has no idea through which firm you have made your will, he or she can engage a solicitors firm to publish a will search notice for a fee in the electronic newsletter regularly issued by the Law Society of Hong Kong to the profession (i.e. all registered members of the Law Society in Hong Kong). If the solicitors firm holding the original copy of the will sees the notice, it can contact your firm directly to make arrangements.
On the other hand, keeping wills in bank safe deposit boxes was a common practice in the past, but this practice has become less popular in recent years. Since your executor himself has no right to open up your safety deposit box, he has to be authorized by the Home Affairs Department to open your bank safe deposit box to obtain your will, which can be a very complicated and lengthy process and is not legally necessary. (section 60D of the Probate and Administration Ordinance (Cap. 10))
If you want to know more about how your executor could apply for permission to open up your bank safe deposit box and the relevant restrictions, please click here to visit the CLIC website.