Des Voeux Chambers (“DVC”) is honored to have been invited by Chambers & Partners (“C&P”) to contribute an Overview of the Trust, Probate and Succession in Hong Kong for its Great China Region 2025.
Trusts, estates and succession are the key components of traditional Chancery law work, and an area which has seen rapid growth in recent years in sync with the growing awareness and focus on family wealth management and succession planning. This Overview provides a general introduction to this specialised area of practice in Hong Kong.
7 DVC members are ranked under the “Spotlight” category in the latest edition of C&P Greater China Region: Trusts, estates and succession: the Bar, comprising 64% of the list.
See our full rankings with commentary at https://chambers.com/legal-rankings/trusts-probate-succession-the-bar-china-116:3589:60:2?l=en-GBhttps://lnkd.in/g_9QWmPA
DVC members’ expertise in this area are highly sought after. Many DVC members are frequently involved in high-profile, front-page-worthy cases, both local and international.
Learn about DVC members’ practice in this area at https://www.dvc.hk/practice-areas/trusts-probate-and-succession
Trusts, Probate & Succession: The Bar | Greater China Region
Trusts play an indispensable role in Hong Kong, serving critical functions across asset management, family estate planning, commercial transactions, unit trust investments, and share ownership arrangements. They offer significant benefits such as asset protection, smooth wealth transfer, and business continuity. Charitable trusts further encourage individuals to support social causes, providing tax advantages that facilitate philanthropic objectives while benefiting the broader community.
Hong Kong’s trust law is rooted in equity principles and statutory provisions, particularly the Trustee Ordinance (Cap 29). It is consistent with the principles of other common law jurisdictions and provides a clear framework that defines the roles and responsibilities of trustees and the entitlements of beneficiaries. This legal clarity enhances the effectiveness of Hong Kong’s trust services sector, solidifying its status as a global hub for asset management.
Dispute resolution and compliance with legal requirements are critical components of trust law practice. In Hong Kong, express trusts are primarily governed by established legal principles derived from case law. Resulting and constructive trusts frequently arise in both commercial and domestic contexts, with case law evolving to reflect judicial interpretations that address the complexities of modern transactions.
While trusts are central to estate planning, probate involves the legal administration of a deceased person’s estate, ensuring assets are distributed according to the will or, in the absence of a valid will, under intestacy laws. The administration of estates in Hong Kong is governed by the Probate and Administration Ordinance (Cap 10), the Wills Ordinance (Cap 30), and the Intestates’ Estates Ordinance (Cap 73).
For a will to be valid in Hong Kong, it must meet specific legal requirements. An executor, appointed in the will, is responsible for managing the deceased’s estate, including handling probate applications, safeguarding assets, settling debts and taxes, and distributing the estate to beneficiaries. Executors owe fiduciary duties to act in the best interests of the estate and its beneficiaries. If a person dies without a valid will, their estate is distributed in accordance with the Intestates’ Estates Ordinance. In cases where no executor is appointed or able to act, the court may appoint an administrator to perform similar duties, including applying for letters of administration.
Estate administration involves gathering information, managing assets, and distributing them to beneficiaries while fulfilling all legal obligations.
- First, executors or administrators must compile a comprehensive inventory of the estate, which includes real estate, bank accounts, investments, and personal belongings. This process requires engaging with banks, insurance companies, and government departments to retrieve essential documents such as wills, trust agreements, and financial statements through thorough searches.
- Next, obtaining a grant of representation is essential to gain the legal authority to manage the estate. This involves submitting key documents, including the original will, death certificate, and probate application form, along with a detailed statement of the estate’s assets and liabilities. In certain cases, notices may need to be issued to inform potential creditors.
- Once the grant of representation is obtained, executors or administrators are responsible for collecting and securing all assets. Before distributing these assets, they must settle any outstanding debts, such as funeral expenses, medical bills, and taxes.
- The final step is the distribution of assets to beneficiaries in accordance with the deceased’s wishes outlined in the will, or in line with intestacy laws if no valid will exists.
Estate administration can often be contentious due to its complexity and the involvement of multiple interested parties. Disputes commonly arise over issues such as the validity of the will, the identification and valuation of assets, the identification of rightful beneficiaries, the settlement of debts, and claims from creditors or among beneficiaries. These conflicts are frequently driven by emotional factors, conflicting interests, and the significant stakes involved. As a result, legal practitioners and third-party professionals are often engaged to resolve disputes and ensure the administration process is carried out smoothly and lawfully.
Governed by the Probate and Administration Ordinance, the probate process ensures the efficient and legal management of a deceased’s estate. A probate judgment, being in rem, binds all rival claimants once adjudicated.
The Ordinance also provides a statutory mechanism for the court to exercise discretion in appointing a qualified person as the administrator of a deceased’s estate. During the estate administration process, the court may issue different types of grants, depending on the specific circumstances of probate practice.
- When the grantee has died without fully administering the estate, a further or new grant is required to appoint a personal representative in respect of the unadministered estate, which is commonly known as grant de bonis non.
- Where an estate of a deceased is at risk due to delays in its administration, an ad colligenda bona grant may be ordered to preserve the estate.
- A grant pendente lite will be issued when there is a pending probate claim. It can also be issued for the limited purpose of prosecuting an action in respect of a particular asset of an estate before the resolution of a probate action.
Another significant aspect worth mentioning is caveat proceedings. When a person wishes to stop a grant from being sealed, he/she may enter a caveat as the caveator. Once a caveat is entered, if the applicant for a grant wishes to dispose of it, he/she may issue a warning (as the person warning), requiring the caveator to give particulars of any contrary interest. A caveator having a contrary interest may enter an appearance, and if the caveator does not have any contrary interest, he/she may still enter an appearance.