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歡迎收聽「長者法網智多聲」。「長者三寶」,即持久授權書、遺囑和預設醫療指示之中,相信大家最常聽到的就是遺囑,亦即是「平安紙」。這一節我們會為大家說一下遺產承辦和遺囑。

一般來說,您可以決定自己的財產怎樣分配和留給誰,好像是留給親人、朋友或慈善機構等,只要在平安紙上寫清楚就可以了。平安紙可以說是您跟家人傳達的最後訊息,這樣重要,訂立之前,最好還是先諮詢律師。

任何年滿18歲而又精神健全的人,都可以訂立平安紙。平安紙必須要白紙黑字寫下來,您要在兩名見證人同時在場之下,在他們面前,在平安紙上簽名。兩名見證人之後亦必須在您面前,在平安紙上簽名。平安紙最好先寫上日期,然後再簽名。要留意了,兩位見證人,不可以是您的遺產受益人或他們的配偶,否則他們將來便拿不到您的遺產。

您可以在平安紙上,指定一至四個可靠的人,擔任您的遺產代理人,他們會代理您的財產,直至管理及分發工作完成為止。遺產代理人可以同時是您的遺產受益人,但記得要寫清楚。

如果訂立平安紙之後想更改,可以用同樣的方法,再訂立一份新的平安紙,記得寫明原本那一份已經取消了。

在考慮怎樣寫平安紙之前,有某些事您可能要先想清楚。舉例說,如果遺產受益人還未夠18 歲,您可以在平安紙寫明,等他到了某個年紀,才可以繼承遺產,期間遺產代理人會代為托管這筆遺產。如果遺產受益人因為殘疾不能夠照顧自己,您也可以在平安紙上委任信託人,代為管理他繼承到的那一筆財產。除了如何分配遺產之外,平安紙亦可以交代您想如何安排身後事。

若您年事已高、曾經中風、患有老人癡呆症、或患有其他可能影響您精神狀況的重病,記得要在訂立平安紙之前,先找醫生檢查和紀錄您的精神狀況,以免日後家人說您訂立平安紙時精神錯亂,要求法庭推翻您的平安紙。

訂好平安紙以後,記得要放好,還要告訴遺產代理人平安紙放在哪裡。

如果沒有訂立平安紙又如何呢?根據法例,您的親人可以有不同優先次序,申請成為您的遺產代理人,代理您的財產,直至管理及分發工作完成為止。

在扣除您的債務、稅項、葬禮及法律等費用以後,您的財產會根據法律,按次序分配。在一般情況之下,在生的配偶和子女,會優先分得您的財產。如果您只留下丈夫或妻子、沒有子孫;或是有子孫在生,但配偶已經過身;甚至是有私生子女,又或是在1971年10月7日之前納了妾侍,不同的情況,分配財產的方法都不同。如果想知道更多,可以參考長者社區法網文字版。這一節就說到這裡,謝謝大家收聽。

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What concerns you should have when making your will?

Probate

Although this is not an  exhaustive list, you may take the following points as a basic reference:

Funeral Arrangements

You may indicate in your will your preferred form of funeral, e.g. burial or cremation, Taoist, Buddhist or Christian etc.

Personal items

If you have not stated in your will who should take your personal items such as furniture, clothing, accessories, vehicles or other items of memorable value, those items would be considered as part of the your estate and will be sold and then distributed in the form of money.

Too young a beneficiary

If a beneficiary of your will has not reached the age of 18 by the time you pass away, your executor would normally put the assets that you leave behind for that beneficiary on trust until he or she reaches 18. If you are worried that it is not good for the growth of your child or grandchild to succeed your assets at too young an age, you may specify in your will that your full assets can only be received at an older age (e.g. 25 or 30) and that before then your child or grandchild can only receive small sums for their daily and educational expenses.

Disabled beneficiary

If a beneficiary of your will is unable to look after him/herself due to disability, you may appoint a trustee to manage the assets that you leave behind for him/her.

Your beneficiary unfortunately passes away before you do

According to section 23 of the Wills Ordinance (Cap. 30), if a descendent of yours is a beneficiary of your will and he/she passes away before you do, leaving behind descendent(s) of his/her own, then generally his/her descendent(s) will take over the assets that you originally leave behind for your fallen descendent.

Medical Certification

If you are rather old, suffering from stroke, Alzheimer’s disease or any other severe diseases that may affect your mental condition, you should invite your attending doctor, or even a neurologist or a psychiatrist, to examine and record your mental condition. This is to prevent your family from attempting to use poor mental condition as a reason for challenging your will in court.

Estate Duty

Estate Duty was abolished on 11st February, 2006. People surviving that date like you do not have to worry about this.

Can I not leave any asset to my wife or my infant children?

Generally speaking, you have the freedom to decide how to distribute your estate. Differently put, you may by your will decide to whom you would and whom you would not leave your assets. As said before, you may even not leave a dime to your families but leave it all to charities or, perhaps, your caretaker or neighbours who have taken care of you. However, persons who have been dependent on your financial support for a living or to whom you owe the moral obligation of financial support, such as your wife, infant children, aged parents, or even a mistress, may apply to the court for an order that certain parts of your estate shall be given to them to maintain their living.
(Section 34 and 5 of the Inheritance (Provision for family and dependents) Ordinance (Cap. 481))

Is your will going to be cancelled automatically if you get married or divorced after you make it?

If you get married after making it, your will would generally be cancelled automatically. In contrast, if you get divorced after making it, your will would generally not be cancelled automatically. But if, in your will, you have appointed your ex-husband or ex-wife to be your executor, or if you have left behind any assets to him/her, those parts of your will would be cancelled automatically (section 14 and 15 of the Wills Ordinance (Cap. 30).

Keeping your will properly

You should keep your will properly after you make it or else your wishes may not be implemented if your will is lost subsequently. You may choose to keep your will at home or other private premises. But you should make sure that the will would not get lost easily and that your executor knows how to locate it. As there might be many years between the time you make your will and your passing away, it is quite possible that you might lose the will when you move or renovate your apartment, or you might forget about it due to a decline in your memory as you get older. Keeping your will at home, therefore, carries a certain degree of risk.

Safer ways would be to make your will through a law firm or to keep it in a bank safety deposit box. When your time on earth is through, your executor could easily retrieve your will from your law firm. If he or she has no idea through which firm you have made your will, he or she may search for it through the Hong Kong Law Society.

On the other hand, even if your executor himself has no right to open up your safety deposit box, he may obtain such right through the Department of Home Affairs in order to locate your will. These measures largely prevent your wishes from going nowhere simply because you might have forgotten where you put your will, or because it has been lost somewhere (section 60D of the Probate and Administration Ordinance (Cap. 10))

If you want to know more about how your executor could apply for permission to open up your safety box and the relevant restrictions, please click here to visit the CLIC website.