Frequently Asked Questions
Professional Wills Limited
If you're unsure about Wills, guardianship, or terminology you've read we have put together some quick answers to help you navigate your way. But if you have further questions or are in any doubt, we are here to help anytime.
If my guardian did have to step in, how would I ensure that they have enough funds to raise my children?
How many Wills do I need?
If you have assets in multiple countries, we strongly advise against having one Will drawn up to cover your worldwide assets as this can result in delays and additional expense during the probate process. The industry standard recommendation is to have a separate country specific Will written to cover each country where assets are located. It is perfectly possible to have more than one Will, but each one must be restricted to the country and type of property it is intended to cover. This can save a lot of time and costs when the Executors deal with probate, as they will have to deal with the probate office in each separate country. Having separate Wills means that probate in each country can be applied for at the same time.
Do I need to list my assets in the Will?
We advise against listing specific assets such as property and bank accounts in the Will. This way, if you sell or buy property or change your bank account, there is no need to update your Will because these would automatically be included as part of your estate. We recommend that clients keep an up-to-date estate planning folder where you can list all of your assets to make it easier for the Executors of your Will, and you should keep the folder somewhere that the Executors can easily find.
What happens to my Will if I get married or divorced?
If you get married, then existing Wills in most jurisdictions are automatically revoked, unless you wrote your Will in contemplation of marriage.
What happens to my Will if I have more children?
When you draft Wills with us, we do not recommend that you name your children. Instead, we would include a definition of “my children” which would ensure that any future children will be included.
Should I store my Wills in a safety deposit box or at home?
We strongly advise against storing your Wills in a safety deposit box, if you were to pass away the banks will not open it without a grant of probate. If the Wills are in a safety deposit box, the Executors cannot get to the Wills in order to apply for the probate.
My children have godparents, do they still need a Guardian?
Godparents have no legal status although most people choose them with the thought at the back of their minds that these are the people that they would like to bring up the children if circumstances took their parents away.
The appointment of guardians must be made in a legal document e.g. your Will. Nothing else will guarantee that the preferred alternative parents of your children will be as you would wish!
Is it necessary to appoint guardians for my children?
If you have not appointed guardians for your children, they could be taken in by the state and put into state-run care until the courts appoint a guardian that they deem to be most suitable. This decision takes time, especially if there are disputes. The courts may choose a family member that you would not want raising your children. If the children have no surviving family members, they could become a ward of the state and remain in the care system.
If you have appointed a guardian, then should the parents pass away the guardian will have parental responsibility of the children until they are no longer a minor.
How do I appoint guardians for my children?
You can appoint guardians in a Will or Deed. However, it is much more common to include the appointment of permanent guardians in a Will.
What do I need to think of when choosing a guardian?
You should ask yourself if your chosen guardian (you can appoint a sole guardian or joint guardians) is emotionally, financially and physically able to care for your children. Quite often clients will choose aunties, uncles or grandparents. It is wise to pick a back-up guardian just in case something should happen to your first choice. You should also revisit your decision every few years in case circumstances change. You may decide to write a letter of wishes to your guardian which sets out how you would like your children to be raised i.e. school or religious preferences.
If my guardian did have to step in, how would I ensure that they have enough funds to raise my children?
You would appoint trustees in your Will who would look after your assets until your children reach a suitable age (you can specify this age in the Will). The trustees can forward the assets of your estate to the guardian for the maintenance and benefit of your children i.e. school fees, buying their first car.
What happens if the guardian I want to appoint is outside of Hong Kong?
You should also appoint temporary guardians here in Hong Kong who would step in and look after your children until the permanent guardian is able to assume their responsibilities. You would do this through a Deed of Temporary Guardianship document.
Given the current circumstances, there is no telling how long it would take for the permanent guardians to reach Hong Kong, so it is vital that you also appoint temporary guardians or your children could be taken into state-run care until the permanent guardian can physically take up guardianship.
Would our children be able to stay with our helper if something happened to us?
From what we have heard, it is unlikely unless you have a Deed confirming that you have agreed to them being the temporary guardian. You should also remember that if the parents pass away then your helper has limited time to find other employment or leave Hong Kong, so they may not be the most suitable choice. You may decide to appoint your helper as a temporary guardian along with your friends or neighbours who could also step in and help.
What happens if we test positive for COVID?
If you were separated from your children because of this, then one would think that parents should be able to explain to the authorities who they would like the children to remain with in that period, and your children could therefore stay with the helpers in this situation. However, there is no clear guidance and having a Deed of Temporary Guardianship document explaining who the children should stay with if the parents are separated from the children should reinforce the parents’ wishes.
What are Executors and Trustees?
Every Will must have in it the appointment of an Executor and Trustee. Often these are the same people and can be more than one. They must be able to understand the contents and intentions of the Will so fully that they can administer the Estate. This is traditionally a task given to a lawyer. A clearly drafted Will makes it perfectly possible for a friend or close relative to do this job. They may, if they wish, employ the services of a lawyer or accountant if there is a lot to do. Clarity and simplicity are therefore important. Information relevant to the Will should be stored with it (i.e. an Asset Sheet and personal letters containing your instructions to your Executors).
The first thing an Executor must do is to take the Will to the Probate Office, together with a death certificate and show them the documents. If all is well with the Will (properly attested, unmarked and clear) a certificate known as a grant of Probate is given to the Executors.
This important piece of paper gives government approval for the Executor to carry out his or her task immediately. The Executor will have to approach banks and other financial organisations, employers, etc. in order to call in any money owing to the Estate. A bank account is opened and money paid into it as it arrives. Outstanding bills and debts (credit cards, rent and rates, telephone, gas, electricity bills etc.) must be paid from this account. When all the money owing to the estate has been paid into the account and all outstanding debts paid (including the Executors out-of-pocket expenses) the Executor must go back to the Probate office and show them what has been done. If the Probate Office is satisfied with these accounts it will give the Executor authority to distribute the legacies, bequests and residuary gifts to the beneficiaries. Each of these beneficiaries (people receiving gifts from the Estate) and, if there is tax payable, the Inland Revenue, will be required to sign a receipt after which the account should be empty and then closed.
A Trustee is someone who will look after the things that will become the property of someone else such as beneficiaries who cannot inherit the gift until a condition is met i.e. a minor becoming 18 or older. The Trustees must look after the gifts and keep them safely (and properly invested in the case of money) until the condition is met. Depending on the type of trust, they can be quite straightforward to establish however they can also be complicated requiring the help of a professional to set up a Trust and professional help can be paid for from the estate.
It is a powerful appointment and one made in absolute trust and confidence that the appointee is the right person to carry out the task.
In summary, an Executor is the person responsible for the administration work connected with a Will and a Trustee looks after something that will become the property of somebody else.
What is Intestacy?
In common law countries a limited amount (known as the Statutory Legacy) is allowed to pass from one spouse to another and anything over that is divided between the spouse and the children and put into trust for safe-keeping, so that the capital sum is not available. The statutory legacy is horrifyingly low in Hong Kong. There is little consistency internationally and for you much depends on where you think of as home (also known as your 'domicile of choice'), for it is the rules of that country which will dictate how your assets are distributed. What is more important the Government of your home country will be entitled to tax your estate.
What are Inheritance Tax and Estate Duty?
Inheritance tax, estate tax and death duty are the names given to various taxes which arise on the death of an individual. Tax rates vary from country to country. Planning to reduce the impact of Inheritance Tax - to ensure that the largest part of a person's estate is passed to chosen beneficiaries - is, for various reasons, often too low on a person's list of priorities. Inheritance Tax can be an emotive issue; the overwhelming view is that having built up an estate during a lifetime - notwithstanding the payment the way of Income Tax, Capital Gains Tax and other forms of taxation - and hoping to pass on that wealth for the benefit of one's chosen heirs, there is then in some cases this final tax bill to pay.
There are many different strategies involved in Inheritance Tax planning, ranging from the very simple to the highly complex, and the sooner you start to plan the more money you and your beneficiaries will save in the long-term. A sensible and up to date Will is important and by protecting your estate from the taxman you could save a small fortune in Inheritance Tax!
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