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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。
PrintCase illustration
Scenario:
Mr. A and Mrs. B were a couple but Mr. A died recently. Mr. A has left behind a considerable amount of assets and now his family members have to deal with the following problems in relation to the distribution of his estate.
1. Mr. A and Ms. B have two children. In case Mr. A did not make a will, must the matrimonial home (the main residence of Mr. A and Ms. B) be sold and distributed as part of the estate?
Not necessarily. The surviving spouse (Ms. B) has a right to take the matrimonial home by law. She can choose to take the matrimonial home as part of her entitlement in the estate.
For example, the couple lived in a matrimonial home valued at $1million, held solely in Mr. A’s name. Mr. A died without making a will and was survived by Ms. B and two sons. He leaves an estate valued at $1,450,000 (inclusive of the matrimonial home but exclusive of his personal items, which will be given entirely to his wife). Ignoring the funeral and administration expenses, Ms. B is entitled to $500,000 plus one-half of the remaining estate [($1,450,000 – $500,000) ÷ 2] which gives a total of $975,000. Mr. A’s two sons would equally share the other half of the remaining estate, i.e. $475,000.
Ms. B can claim the matrimonial home by using her $975,000 (i.e. the flat is not sold and she does not take this $975,000) and paying the balance of $25,000 to the estate by her own means. The estate to be taken by the two sons remains at the value of $475,000.
2. Can Ms. B choose to keep the matrimonial home if Mr. A had made a will?
There must be a specific gift that the matrimonial home must be given to the surviving spouse in the deceased person’s will. If there is no such instruction in the will the surviving spouse has no right to keep the matrimonial home as part of her entitlement under the will.
3. Suppose Mr. A has left behind no children of his own but only his surviving wife (Ms. B) and his mother, brothers and sisters, how much could each party take from the estate if Mr. A has made no will?
If Mr. A has an estate valued at $1,450,000 (excluding his personal items to be fully taken by his wife), his wife Ms. B could first obtain the sum of $1,000,000. And so, ignoring the funeral and administration expenses, the distribution of estate to all relevant parties is as follows:
Ms. B is entitled to $1,000,000 + ($450,000 ÷ 2) = $1,225,000;
Mr. A’s mother is entitled to ($450,000 ÷ 2) =$225,000;
Mr. A’s siblings are entitled to nothing (they will only have a share if Mr. A leaves no descendant and no parent).
4. How about if suddenly a man appears and proves that he is the “secret child” (illegitimate child) of Mr. A? Can he get a share from Mr. A’s estate?
An illegitimate child means a child whose natural parents were not married in the manner that the laws of Hong Kong recognize when he or she was born. For details, see Family, Matrimonial and Cohabitation on the CLIC website.
Illegitimate children enjoy the same succession rights as legitimate ones if their parents die after 19th June 1993.
Suppose Mr. A has a surviving wife (Ms. B), two legitimate sons and one illegitimate son, and his estate is valued at $1,450,000 (excluding his personal items to be fully taken by his wife). Ignoring the funeral and administration expenses, the distribution of estate to all relevant parties would be as follows:
Ms. B is entitled to $500,000 + half of the remaining estate [($1,450,000 – $500,000) ÷ 2] = $975,000;
After deducting the amount that Ms. B is entitled to take, the two legitimate sons and the illegitimate son can share the remaining estates equally.
The two legitimate sons are each entitled to ($1,450,000 – $975,000) ÷ 3 = $158,333 each;
The illegitimate son is entitled to ($1,450,000 – $975,000) ÷ 3 = $158,333.
5. Further to the question of illegitimate children, would the situation be different if the deceased has made a will?
It depends on the drafting of the will. For wills executed after 19th June 1993, if the words “to my children” are used, illegitimate children will be included as well. If a person does not wish any illegitimate children to benefit from his will and receive a portion of his assets, he should specifically name each of his legitimate children in his will.