As regards Hong Kong, it is unfortunately very expensive (we will let you have details in due time), and difficult as it does not have a small estate procedure for shareholdings of small value; and also does not permit applications to be filed with the Hong Kong Probate Registry direct, such applications having to be filed by local solicitors based in Hong Kong.
A Power of Attorney (which we draft for you to sign) in favour of the local solicitors may be required, if the English Executors do not wish to proceed in their own names in Hong Kong. Our experience is that the local lawyers are reluctant to apply for a Grant in their own names, and that proceeding in the Executors own names is perfectly acceptable to the HK Probate Court. If the English Executors decide to proceed we may need a Surety Waiver Letter signed by the remaining Executors (if they do not all decide to be named in the reseal in Hong Kong) as otherwise the Hong Kong Courts may require a Surety Guarantee to ensure that the estate will be administered correctly according to the Will.
We will then complete the necessary forms (including Form No. N4.1) and proceed from there. The Executors will have to swear or affirm an Affidavit (Form N3.1) to which the Form N4.1 will be an exhibit. We will also prepare this Affidavit for signature in due time.
If Power was reserved in the English Grant to other Executors, these other Executors will have to sign a Power of Attorney to take Administration – Form L3.1 in favour of the Executor who will be resealing the Grant in Hong Kong. The Executor resealing the Grant in Hong Kong will also have to sign an Application for Sealing of Foreign Grant – Form F1.1. Several of these documents will have to be signed before a Notary Public.
If any Executor named in the Will (or if the Deceased died intestate, then the person entitled to the estate) predeceased the Deceased, then original Death Certificate(s) will be required for such persons. If necessary, we can organise these Death Certificates.
Also, the passport details of the Deceased will have to be disclosed (and if these are not known then we will have to apply to the Passport Office for such details, in which case we will need a Letter of Authority (which we will prepare for signature) and also an original sealed and Probate Registry certified copy of the Grant; an original Death Certificate (these will be returned by the Passport Office) together with a copy of the passport or photo driving licence of each Executor).
There will also be a Check List for the Executors to sign (in blank!).
In view of Probate Registry delays, it will take about 6 – 8 months to complete the resealing process and the distribution of the assets. As mentioned, we will prepare the Power of Attorney for signature by each Executor.
You have to be aware that the Hong Kong Probate Registry is very pedantic and loves red tape, and so you can reasonably expect requests for proof of matters that we would normally take for Granted.
The documents that will be required are:
1) An original and Probate Court sealed and certified copy of the English Grant of Probate
An original and Probate Court sealed and certified copy of the English Grant of Probate. Please note that the certification MUST be done by the Probate Registry which issued the original Grant. This is not expensive, but it does take time. We will organise this for you, and will need a cheque in favour of HMCTS for £10 in payment of the Probate Registry fee.
The certificate needs to be attached to each page of the Will, not just one page as usually happens.
2) A duly authenticated copy of the Death Certificate
A duly authenticated copy of the Death Certificate (the usual green coloured copy, not a photocopy – i.e. the original copy Death Certificate);
3) A duly authenticated copy of the marriage certificate (if relevant)
4) Schedule of all worldwide assets and liabilities of the deceased
A complete Schedule of all worldwide assets and liabilities of the deceased (a copy of Form IHT 205 or IHT 400 is usually sufficient). A copy of Form N4.1 will be sent to you to complete by hand and return. An original will be prepared in Hong Kong for signature by the Executors in due course;
5) A copy of the passport of the deceased
A copy of the passport of the deceased, duly certified as being a true copy by a solicitor.
6) A copy of the passport of each Executor, also so certified by a solicitor
7) A copy of a utility bill
A copy of a utility bill (dated within the last three months) confirming the home address of each Executor, also so certified;
8) A copy of the Will
A copy of the Will, again preferably certified on each page by the Probate Registry which issued the original Grant of Probate.
9) Original Death Certificate for deceased Executor (if applicable)
If an Executor has failed to take out the English Grant then either an original Death Certificate for such deceased Executor, or if such failed Executor is still alive – then a Power of Attorney in favour of the actual Executor (being Form L3.1).
Documents (6) and (7) deal with Anti-Money Laundering requirements.
If the share certificate(s) have been lost, this will delay matters considerably as a Statutory Declaration will have to be prepared and signed by the Executors and Notarised with Apostille affixed. As part of the process of having new share certificates issued, the Hong Kong Stock Exchange is then notified of the application for replacement share certificates, and thereafter the application has to be advertised in the Government Gazette for each of the next three months. Three months after the date of the first such advertisement any claims opposing the grant of a replacement share certificate have to be filed.
If there are no such claims (and we do not expect any such claims) the Board of Directors of the Company will authorise the issuance of a new share certificate, and once the new share certificate has been issued, the issuance of the new share certificate has again to be advertised in the Government Gazette. Notice of this has then also to be given to the Hong Kong Stock Exchange. When all these steps are completed (this will take about 5 months to complete – it is the advertising and other procedures outside the control of the Registrars which takes the time), the actual transfers will take place, and at that time we will be informed of the amount of stamp duty payable. This is probably a nominal amount (0.1% of the value of the shares, each for the transferor and the beneficiary) and a further HK$5 for the document stamp. We will not therefore know the amount of the stamp duty payable for some time, if the share certificate(s) have been lost.
Unfortunately as mentioned above, there is not a small estate procedure that can be used in Hong Kong, although in some cases where the shareholding is very small, the companies will transfer the shares against an Executors indemnity or undertaking.
Sometimes in view of the costs of resealing the Grant in Hong Kong, the Deceased’s estate wishes to give the shares to charity in which case we can give you the details of a children’s charity in Hong Kong if that is the course of action which is chosen. You can donate the shares to Sharegift (the Orr Mackintosh Foundation) – a British Charity set up to receive shares, but unfortunately they will also have the problem of having to have the Grant resealed in Hong Kong.
If (in addition to having Form N4.1 completed – we will send you the Form in due time for completion) you can send us copies of the Grant of Probate, Death Certificate and of the share certificate(s), (photocopies will be sufficient at this time) we can at least start the process, and obtain confirmation as to the shareholding(s) from the Registrars, and a valuation of the shareholding(s) involved.
If you have already been in contact with the registrars we will be grateful if you can send us copies of the correspondence so that we know what stage has been reached to date. We will also need to value the shares as at the date of death, unless you have already done so, in which case a copy of the valuation will be very useful. If we carry out the valuation, then such valuation is included in our fees, although there is normally a separate charge for just valuing the shareholding(s) for probate purposes and when no further work (such as resealing) is involved.
In order to proceed with the reseal in Hong Kong you will also have to complete Form IRED63A, which is the Hong Kong Inland Revenue Estate Duty form. If the value of the shares is below HK$400,000 (about £40,000), this should not be difficult to complete. Again, we will send you a copy of the Form in due time for your completion.
We do not know if you need any help in selling the shares (or part thereof) after the Grant has been resealed and registered with the Registrars, but if this is the case please let us know so that we can arrange the sale for you. This involves opening an account at the brokers (which we will organise for you), if the shares are to be sold. You will have to complete the Terms of Business Form and the Nominee Account Form (both are simple two page forms, most of which we will complete on your behalf), and the brokers will need the usual certified copy passports and utility bills dated within the last three months for the signatories on the account. The brokers that we use for such purposes charge 1.75% on the first £10,000 and 0.5% on the balance, with a minimum charge of £25. The Brokers will account directly to you for the net proceeds of sale as we do not handle client’s monies.
As regards the fees, if the shares are to be transferred to the Beneficiaries, then we will need some monies on account to be paid to the Hong Kong lawyers to keep them happy. The sum which we usually have transferred is £1,500. However, if you wish to sell sufficient shares to pay all the legal fees and costs when the matter has been completed, then such payment on account will not usually be required.
We hope that you find the above useful, and if you have any questions please contact us.
We look forward to hearing from you in due time, as we will be pleased to help you.