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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。
PrintHow your assets are going to be distributed?
When you have reached the end of your life, how are your hard earned assets such as apartments, bank deposits, shares or jewelry, going to be distributed? Is it going to be governed by the laws of Hong Kong or the laws of some other jurisdictions?
Different kinds of assets in your estate may be governed by the laws of different jurisdictions. For those immovable assets (e.g. housing and land), their succession is generally governed by the laws of the place where the assets are located and not the place in which you live. If you own an apartment in Dongguan, China, for example, the succession of that apartment would generally not be governed by the laws of Hong Kong but by the laws of that place regardless of whether you live in Hong Kong or Dongguan. Likewise, even if you have lived in Dongguan for years, and you have an apartment situated in Hong Kong, the succession of that apartment would generally be governed by the laws of Hong Kong.
In particular, if your property in Hong Kong is held in joint tenancy with another party, the other party will own the property in full when you pass away, and the title to the property will not become part of your estate.
The succession of movable assets (e.g. bank deposits, shares or jewelry) is generally governed by the laws of the place you live in when you pass away. For example, if you live in Canada, no matter whether your jewelry is stored in Canada or in Hong Kong; its succession would generally be governed by the laws of Canada.
For assets in foreign countries and foreign laws, you may need to consult foreign legal professionals or refer to other sources to learn about the way your assets are going to be distributed.
If you live in Hong Kong, under Hong Kong law you may make a will to decide how your assets are going to be distributed. In general, you may leave your assets to your family members, or you may leave your assets to anyone else, such as friends or charities. You may specify that certain items should go to certain persons or you may simply specify certain portions (for example, portions of shares or money) go to certain persons.
If you make no will or if your will has not taken care of all your assets, then your whole estate (if no will at all) or those parts of your assets that have not been taken care of will be distributed in accordance with the law as follows:
A. If you leave behind only your husband or wife
According to section 4(2) and section 5 of the Intestates’ Estate Ordinance (Cap. 73), if you leave behind only your husband or wife and no surviving descendent, no surviving parent, and no surviving whole brother or sister, then your assets, after deducting your debts, tax, funeral, legal and other expenses, will all be given to your husband or wife. Note that if your husband or wife and you are under judicial separation, he or she will not be considered as your husband or wife.
B. You leave behind only your descendent(s)
According to section 4(5) of the Intestates’ Estate Ordinance (Cap. 73), if you leave behind [some descendent(s) but no surviving husband or wife, then, no matter if you also leave behind your parent(s) or brother(s) or sister(s), all your assets, after deducting your debts, tax, funeral, legal and other expenses, would be distributed to your descendent(s) as follows:
According to section 5 of the Intestates’ Estate Ordinance (Cap. 73), if your child(ren) survives you, your assets will be divided among them equally and your grandchild(ren) will not receive a dime (An unborn fetus is also a child (section 2 of the Intestates’ Estate Ordinance (Cap. 73)). But if your child(ren) unfortunately dies young before you do and leaves behind his or her own child(ren), then his or her child(ren)(i.e. your grandchild(ren)) will take up the share of your fallen child(ren) on an equal basis. But if a child of yours died young and leaves behind no children of his or her own, then the share of that child of yours will be divided equally among your other child(ren).
For example, you have child A and child B and an estate in the sum of $2 million. If both A and B survive you, each of them will be given $1 million and their children will not receive a dime. If A dies young, leaving behind two children, then B will get $1 million and A’s two children will each receive half a million. If A dies young and leaves behind no child, B will take all $2 million. And if both A and B die young, and A leaves behind one child and B two, then A’s child will get $1 million and B’s two children half a million each.
On the other hand, if you have given or are about to give your child (or children) substantial financial support, e.g. paying the down payment for him/her when he/she purchases an apartment when he/she gets married, those monies would probably be considered to be a part of your estate and be distributed equally to all your children together with other assets of yours. For example, you have child A and child B and an estate of $2 million. If you had given A $1 million for the purchase of an apartment but not B, then at the end A and B would each get [$2 million (your estate) + $1 million (the money A received from you)) ÷ 2 = $1.5 million.
C. You leave behind a husband or wife and descendent(s)
If you leave behind both a husband/wife and descendent(s), according to section 4(3) of the Intestates’ Estate Ordinance (Cap. 73), no matter whether your parents or brothers or sisters survive you, your husband or wife may first receive the following items:
- All of your personal items such as furniture, clothing, accessories and vehicles;
- A sum of $500,000 out of the remaining assets.
If there are any assets left, then, they would be divided into two halves. One half will be given to your husband or wife, and the other half to your child(ren) equally. (and if a child of yours dies young, that is, dies before you do, his or her children take over his/her share equally.
For more details, please refer to part (B).
According to section 7 of the Intestates’ Estate Ordinance (Cap. 73), if your matrimonial home is a part of your assets, your husband or wife will have priority, and the right to take that home to satisfy his/her share of your estate. But if his or her share is not enough to take over the home entirely, he or she will have to pay for the shortfall before he/she can take it.
D. You leave behind no descendent (that is, you leave no offspring) but you leave a husband/wife as well as your parent(s) or brother(s) or sister(s)
If you leave behind no descendent, according to section 4(4) of the Intestates’ Estate Ordinance (Cap. 73), even if your husband or wife survives you, your parent(s) or brother(s) or sister(s) may also receive a share of your estate. Your surviving husband or wife will first receive the following:
- All of your personal items such as your furniture, clothing, accessories and vehicles; and
- A sum of $1 million out of the remaining estate
The remaining assets, if any, would be divided into two halves. One half would be given to your husband or wife, and the other half equally to your surviving parent(s). If no surviving parent, then equally to your whole brother(s) and sister(s).
E. You leave behind illegitimate children
According to section 3 of the Intestates’ Estate Ordinance (Cap. 73), illegitimate children can now enjoy the same succession rights as legitimate ones if their parent died after 19th June 1993.
F. You leave behind adopted children
According to section 2 of the Intestates’ Estate Ordinance (Cap. 73), children who are adopted in accordance with the law enjoy the same succession rights as biological ones that is, they have the same right to inherit their parent’s estate as biologically related children do.
G. You leave behind no husband or wife and no descendent
In this case, according to section 4(6), 4(7) and 4 (8) of the Intestates’ Estate Ordinance (Cap. 73), after deduction of your debts, tax, funeral, legal and other expenses, your assets would be equally distributed to your surviving parent(s); if no parent survives, your assets would be equally distributed to your surviving whole brother(s) and sister(s); if no such brother or sister, equally distributed to your half brother(s) or sister(s); if no such relative exists, your grandparent(s); if no grandparents survives, whole brother(s) and sister(s) of your parents; if you have no whole brother(s) or sister(s), then half brother(s) and sister(s) of your parents. If no qualified relative survives at all, your assets will go to the Government.
H. You leave behind a concubine
Since 7th October 1971, the laws of Hong Kong no longer allow a man to take a concubine. Yet, according to section 13 and schedule 1 of the Intestates’ Estate Ordinance (Cap. 73), those concubines taken before that date still have certain rights of succession. Roughly speaking, your surviving concubine(s) will take around one third or one sixth of your
assets depending on what family members you also leave behind.
More specifically, if:
(1) your wife survives you; AND
(2) anyone of your descendants, parents, brother or sister also survives you;
then your concubine could receive only 1/6 of your assets after deducting the said miscellaneous expenses and the cash and personal items that your wife is entitled to (if more than one concubine, the 1/6 to be divided equally)
If:
(1) your wife does not survive you, OR
(2) your wife survives you but not any of your descendants, parents, brother or sister;
then your concubine could receive 1/3 of your assets after deduction of the said miscellaneous expenses and the cash and personal items that your wife (if surviving) is entitled to (if more than one concubine, the 1/3 will be divided equally).