While the requirement of surety would be considered by the court on a case-by-case basis, surety is usually required for the following categories of applicants:-
(a) to a person who has no immediate beneficial interest in the estate of the deceased;
(b) a person who would, if the person beneficially entitled to the whole of the estate died intestate, be entitled to his estate;
(c) the attorney of a person entitled to a grant;
(d) for the use and benefit of a person under the age of 21 years;
(e) for the use and benefit of a person who is by reason of mental or physical incapacity incapable of managing his affairs;
(f) to an applicant who appears to be resident outside Hong Kong3;
Surety may also be required in the following special circumstances:-
(i) When there is minority or life interest in the estate
(ii) When the applicant has no beneficial interest in the estate;
(iii) when the death of the deceased cannot be ascertained;
(iv) when there is a dispute as to who should be granted the administration.
Probate Registry would require a detailed breakdown figures for each of the items given in the Schedule of Assets and Liabilities together with documentary proofs in order to determine the gross amount of the estate and fix the sum of guarantee.
The guarantee shall be in the specified form4, and limited to the gross value of the estate.
The surety must be a Hong Kong resident, and be able to produce documentary proofs to show that he or she has enough assets to provide such guarantee. His/her entitlement to the estate would not form part of his/her assets when the court considers whether he/she can be accepted as surety.
However, a guarantee shall not be required, except in special circumstances, on an application for administration where the applicant or one of the applicants is-
(a) a trust corporation; or
(b) a Hong Kong practicing solicitor.
Where a person entitled to a grant resides outside Hong Kong, administration may be granted to his lawfully constituted attorney for his use and benefit, limited until such person shall obtain a grant or in such other way as the court may direct.5
Such Power of Attorney shall be in specified form6, and shall be executed as a deed.
Conclusion
Making a will can avoid the possible complication of the surety requirement, which can be a hurdle to your next-of-kin in administering your estate.
