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Who is responsible for distributing and administering your estate?
When you pass away, your estate will be administered by your personal representative until your estate is fully administered and distributed. In general, your personal representative has to obtain a grant from the Probate Registry of the High Court before he or she can duly administer your assets.
With a will
According to section 25 of the Probate and Administration Ordinance (Cap. 10), you can appoint in your will the person or persons (up to four) whom you trust to be your personal representative(s). A person so appointed is called an “executor” if he is a male or, if female, an “executrix”. To be an executor, one has to have reached the age of 21. Therefore, you are advised not to appoint too young a person to be your executor/executrix, or else if that person has yet to reach the age of 21 when you pass away, he/she may not be allowed to take up the role of your executor right away (section 39 of the Probate and Administration Ordinance (Cap. 10)). Your executor can also be a beneficiary of your estate (but these two roles are different and should be specified in your will). You may appoint a family member(s) whom you trust to be your executor or you may appoint professionals, such as solicitors or accountants. If, for example, you are worried that the administration or distribution of your estate would lead to quarrels between your family members, you may consider appointing professionals whom you trust to be the sole or one of your independent executors so as to reduce the chance of any disputes.
Generally speaking, the court will grant the duty of executor to the person(s) that you choose. It is advisable for you to obtain consent from the person(s) you intend to appoint as executor(s) before you appoint them, so as to avoid them subsequently refusing to take up the job.
Without a will / without an executor
If you have not made a will, or if you have not appointed an executor in your will, or if the person you appointed is unable or unwilling to take up the job, according to Rule 21 of the Non Contentious Probate Rules (Cap. 10A), the court may grant that the following people be appointed to be your personal representative, in the following order of priority. If male, a person so appointed is called an “administrator” or, if female, an “administratrix”.
- Your surviving husband or wife or your concubine made before 7th October 1971;
- Your children, or if they pass away before you, their descendants.
- Your father or mother;
- Your brothers or sisters, or if they pass away before you, their descendants.
You are allowed to appoint up to four administrators for an estate, and they must have reached the age of 21. If persons of the same rank of priority are in dispute, they may apply to the High Court for determination (Rule 25 of the Non Contentious Probate Rules (Cap. 10A)). The court has the power to grant to a person beyond the above priority list to be the administrator of your estate. If, for example, the persons on the above priority list are all mentally or physically incompetent by the time you pass away, or they are in heated dispute, the court may appoint an independent professional to be the administrator of your estate (Rule 26 of the Non Contentious Probate Rules (Cap. 10A)).
Both executors and administrators are personal representatives of your estate and their powers are more or less the same.