1. Eligibility
Order of priority / Order of Entitlement
When a deceased died without a will, his next-of-kin who has a beneficial interest in the estate (“next-of-kin with beneficial interests”) shall be entitled to a grant of administration in the order of priority as set out in r.21 of Non-Contentious Probate Rules (Cap. 10A), namely:
- the surviving spouse or the surviving partner or partners to a union of concubinage entered into before 7 October 1971;
- the children of the deceased including any children born of a union of concubinage entered into before 7 October 1971, or the issue of any such child who has died during the lifetime of the deceased;
- parents;
- siblings or the issue of any deceased siblings of the deceased who has died during the deceased’s lifetime;
- grandparents; and
- uncles and aunts of the deceased, or the issue of any deceased uncle or aunt of the deceased who has died during the lifetime of the deceased.
If one can prove that all persons in the preceding order are either deceased or have waived their eligibility, he or she can apply for the grant of administration.
E.g. A has passed away. A’s wife is alive but refused to apply for Letters of Administration. A’s only son is ineligible to apply for A’s Letters of Administration until he has proven that A’s wife has waived her right to apply for A’s Letters of Administration.
Without any person having a beneficial interest in the estate, a grant may be made to the Official Administrator.
Alternatively, a grant may be made to the creditor or to any person who, notwithstanding that he has no immediate beneficial interest in the estate, may have a beneficial interest in the event of an accretion of the estate, or is, by virtue of s.3 of the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481), entitled to apply to the court for an order under s.4 of that Ordinance.
In general, the court makes a grant of letters of administration to the person(s) whom it considers will most effectively administer the estate.
Choice between persons entitled in the same degree
R.25 of Non-Contentious Probate Rules (Cap. 10A) offers some guidance as to how the Court makes a selection between those entitled:-
- A grant may be made to any person entitled without notice to any other persons entitled in the same degree.
- Any dispute between persons entitled to a grant in the same degree should be resolved by bringing a summons before the Registrar. As a result, the person issuing such summons shall enter a caveat, and the Registrar will not allow any grant to be sealed until the dispute is resolved.
- A living person is preferred to the personal representatives of a deceased person who would, if living, be entitled in the same degree.
- A person not under disability is preferred to an infant entitled in the same degree.
If a personal representative of a spouse is involved,
- Where a spouse is beneficially entitled to only part of estate of the deceased as ascertained at the time of the application for grant with the other next-of-kin, the other living next-of-kin with beneficial interests would be preferred to the personal representative of the spouse.
- Where a spouse is beneficially entitled to the whole estate of the deceased as ascertained at the time of the application for grant, the personal representative of the spouse is preferred to the next-of-kin with beneficial interests.
Number
s.25 of Probate and Administration Ordinance (Cap. 10) governs the number of grantees to be allowed. It ranges from one to four, except where life or minority interests are involved, in which case a minimum of two individuals are required unless the grantee is a trust corporation.
Capacity
A person will not be appointed as an administrator if he:
- is under 21 years old;
- suffers from mental/ severe physical disability to the extent that renders him incapable of managing his own affairs (see r. 33 of Non-Contentious Probate Rules (Cap. 10A); or
- in prison.
The Court generally views that an insolvent person is unsuitable to be appointed an administrator.
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