Frequently Asked Questions

1. What is a Will, and why is it necessary?

A Will is a legal document that specifies how your assets will be distributed after your death. Without a Will, your estate may be allocated according to local intestacy laws, which may not reflect your wishes. Having a Will ensures your estate is distributed to chosen beneficiaries, simplifies the process, and minimizes potential disputes.

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2. What happens if I die without a Will?
Dying intestate means your assets will be distributed based on intestacy laws, typically favouring immediate family members. This can lead to unintended outcomes and higher administrative costs for your loved ones.

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3. Who can be a beneficiary in my Wills?
You can name anyone as a beneficiary, including family members, friends, pets, or charities. You can specify particular assets, sentimental items, or monetary gifts for each beneficiary.

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4. What is an Executor, and what are their responsibilities?

An executor is a person you appoint to manage your estate after your death. Their duties include gathering assets, paying debts, and distributing property to beneficiaries. You may choose a friend, family member, or a professional to serve in this role.

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5. Do I need a lawyer to make a Will?

While you can draft a Will without a lawyer, a specialist in Wills and estate planning can provide tailored assistance, especially for complex situations involving multiple jurisdictions or specific wishes.

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6. Should I have multiple Wills for different countries?

If you own assets in different countries, it's advisable to create separate Wills for each jurisdiction. This can simplify the probate process, avoid conflicting legal requirements, and expedite asset administration.

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7. How often should I review or update my Wills?

Review your Wills every few years or after significant life changes, such as marriage, divorce, the birth of a child, or a change in financial circumstances. Regular updates ensure your Wills reflects your current wishes.

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8. What is probate, and does my estate need to go through it?

Probate is the legal process of validating a Will, distributing assets, and settling debts. Most estates go through probate, which can vary in complexity. A well-prepared Will can streamline this process.

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9. Can I include digital assets in my Wills?

Yes, you can include digital assets like online accounts, photos, social media profiles, and cryptocurrencies in your Will. It’s beneficial to list these assets and specify management preferences.

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10. How are debts handled after my death?

Your estate is responsible for settling any outstanding debts before distributing assets to beneficiaries. Executors manage these payments using estate assets.

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11. What if I want to disinherit someone?

You can generally disinherit anyone except certain dependents like minor children or spouses, who may have statutory rights. Consult a legal professional to ensure your wishes are respected.

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12. What should I include in my Wills?

Include a list of assets, beneficiaries, an executor, guardians for minor children, and specific instructions for personal items or funeral arrangements. Detailed information minimizes ambiguity.

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13. Are Wills confidential?

Your Will remains private during your lifetime and should be stored securely. However, it typically becomes public once probate is initiated.

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14. Can I include funeral instructions in my Wills?

Yes, you can specify funeral arrangements in your Wills. However, because Wills may not be read until after the funeral, inform family members directly about these wishes.

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15. What is a Living Will, and how does it differ from a last Will?

A Living Will, or advance healthcare directive, outlines your medical treatment preferences if you’re unable to decide for yourself. This differs from a last Will, which addresses the distribution of your assets after death.

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16. How do I store my Wills?

Store your Will in a safe location or with a trusted party, ideally with your Will Writer, ensuring easy access for your executor when needed. Inform your executor of its location.

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17. What if I make a mistake in my Wills?

Even minor errors can complicate probate. Always consult a professional to review and finalise your Wills for accuracy and clarity.

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18. Can a Will be challenged?

Wills can be contested on grounds such as lack of mental capacity, undue influence, or improper execution. A professionally prepared Will with witnesses reduces the risk of successful challenges.

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19. Can I revoke my Wills?

You can revoke or update your Wills at any time by creating a new Will or formally revoking the old one. Certain life events, like marriage, may automatically revoke existing Wills in some jurisdictions.

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20. Should I list my assets in the Wills?

It's generally better not to list specific assets in the Will. Instead, maintain an up-to-date estate planning folder with asset details for your executors.

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21. What happens to my Wills if I get married or divorced?

In most jurisdictions, getting married automatically revokes existing Wills unless it was made in contemplation of marriage.

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22. What happens to my Wills if I have more children?

Instead of naming specific children, define "my children" in your Will to ensure any future children are included.

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23. Should I store my Wills in a safety deposit box?

Avoid storing your Wills in a safety deposit box, as banks typically require a grant of probate to access it, complicating matters for your executors.

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24. Do my children need a Guardian?

Yes, appointing a guardian in your Wills is crucial to ensure your children are cared for by someone you trust if both parents pass away.

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25. How do I appoint guardians for my children?

You can appoint guardians in your Wills, which is the most common method to ensure your children are cared for by your chosen individuals.

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26. What should I consider when choosing a guardian?

Evaluate whether your chosen guardian is emotionally, financially, and physically capable of caring for your children. Consider naming a backup guardian and revisiting your decision periodically.

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27. How can I ensure my guardian has enough funds to raise my children?

Appoint trustees in your Wills to manage your assets until your children reach a certain age, allowing them to provide financial support to the guardian.

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28. What if my chosen guardian is outside Hong Kong?

Appoint temporary guardians in Hong Kong to care for your children until the permanent guardian can take over. This ensures your children are not placed in state care.

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29. Can our children stay with our helper if something happens to us?

This is unlikely without a formal Deed confirming the helper's role as a temporary guardian. Consider appointing them alongside friends or neighbours who can assist.

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30. What the difference between 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 Wills 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).

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Executors:

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• 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.

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• 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.

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Trustees:

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• 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.

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• 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.

 

31. 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.

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32. 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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