Dying Without a Will in Hong Kong: The Intestacy Rules

The question many people ask

"My father died without a will — who gets the flat and the bank account?" The answer is not settled by a family meeting and is not at a solicitor's discretion. It is written out, case by case, in section 4 of the Intestates' Estates Ordinance (Cap. 73). Whatever your family looks like, the section produces one outcome for it, whether or not anyone agrees with the result.

This article starts from the outcome: who actually receives what, who assumes they are entitled and is not, and which deadlines close the door once they pass.

One term first. What the Ordinance divides is not the gross estate but the residuary estate. Section 2(1): "residuary estate (剩餘遺產) means every beneficial interest in an estate as to which a person dies intestate, after payment of all such funeral and administration expenses, debts and other liabilities as are properly payable thereout, which (otherwise than in right of a power of appointment) he could, if of full age and capacity, have disposed of by his will." Funeral and administration expenses, debts and other liabilities come off first; the formula operates on what remains. The same section provides that "intestate (無遺囑者) includes a person who leaves a will but dies intestate as to some beneficial interest in his estate;" — so a will that leaves part of the estate undisposed of (partial intestacy) puts that part back into these rules.

The whole of section 4, in one table

A surviving spouse almost never takes everything, and almost never takes very little. Section 4 sets out seven family situations and fixes the result for each. The table below has eight rows: the last one, bona vacantia under section 4(9), is not a family situation but the default that applies when all seven have failed.

(The table is wide — swipe for the full table.)

The $500,000 and $1,000,000 are not a ceiling; they are a first slice. Section 4(3), quoted from the start of the charging words: "the residuary estate of the intestate (other than the personal chattels) shall stand charged with the payment of a net sum of $500,000, free of death duties (if any) and costs, to the surviving husband or wife with interest on that sum from the date of the death at the rate determined from time to time by the Chief Justice for the purpose of section 49(1)(b) of the High Court Ordinance (Cap. 4) until paid or appropriated". Two things to note: the sum is charged on the residuary estate other than the personal chattels, not on the gross estate; and the two authentic texts are worded differently at this point — the English attaches "free of death duties (if any) and costs" to the net sum, while the Chinese charges the residuary estate 「在扣除死亡稅(如有的話)及費用後」, after death duties and costs have been deducted. The Ordinance does not say which governs. The spouse takes that sum and then half of what is left. The Ordinance does not fix the interest rate itself — it points to the rate determined by the Chief Justice for section 49(1)(b) of the High Court Ordinance (Cap. 4).

If the estate has no cash, the net sum is not automatically lost. Section 6 lets the personal representatives raise "the net sum payable under section 4(3) or (4) to the surviving husband or wife of the intestate or any part of that sum and the interest upon it on the security of the whole or any part of the residuary estate of the intestate (other than the personal chattels), so far as that estate may be sufficient for the purpose or that sum and interest upon it may not have been satisfied by an appropriation under the statutory power available in that behalf", and, in like manner, the costs of the transaction. That power is not unlimited: it reaches only so far as the residuary estate (other than the personal chattels) is in fact sufficient for the purpose. An estate consisting of a flat and nothing liquid does not, by itself, put the net sum out of reach — but a genuinely insufficient or heavily encumbered estate can still leave part of the net sum, or its interest, unsatisfied.

Section 4(12) then provides: "(12)The interest payable on the net sum payable under subsection (3) or (4) to the surviving husband or wife shall be primarily payable out of income. (Replaced 57 of 1995 s. 3)"

The opening words of section 4(3) settle a question readers often ask. The subsection begins: "(3)If the intestate leaves a husband or wife and issue, whether or not persons mentioned in subsection (2)(b) also survive, the surviving husband or wife shall take the personal chattels absolutely". Where there is a spouse and issue, it makes no difference whether a parent, a whole-blood sibling or the issue of one also survives: the case is in section 4(3) and the net sum is $500,000. It does not move up to section 4(4) because a parent is still alive. Section 4(4) operates only where the intestate "leaves no issue".

Working the numbers

An intestate leaves a spouse and two adult children, a residuary estate of $3,000,000 excluding personal chattels, made no lifetime advancement to either child, and — for this worked example only — accrued $0 interest on the net sum between death and payment (s.4(3) provides for "$500,000 ... together with interest thereon" to be set aside first, and only then for the remainder to be halved — see below):

• The spouse first takes the $500,000 net sum with interest (assumed $0 here), leaving $2,500,000;
• Half of that, $1,250,000, goes to the spouse (s.4(3)(a));
• The other $1,250,000 is held on the statutory trusts for the two children — $625,000 each (s.4(3)(b));
• Spouse's total: all the personal chattels plus $500,000 (plus whatever interest actually accrued on it) plus $1,250,000.

This arithmetic rests on three assumptions, not two: the children are of full age (see "The children's share does not vest on death" below), no lifetime advancement (s.5(1)(c)'s bringing-into-account rule), and zero interest accrued on the $500,000 between death and payment. Section 4(3) itself reads: "...a net sum of $500,000 ... to the surviving husband or wife with interest on that sum from the date of the death ... until paid or appropriated and, subject to providing for that sum and interest, the residuary estate ... shall be held—..." — the $500,000 and its interest are set aside first; only what is left after that is halved. Change any one assumption and the figures change; with real accrued interest, the $2,500,000 midpoint and the downstream $1,250,000/$625,000 figures are all correspondingly smaller.

The arithmetic holds on two stated assumptions: the children are of full age (see "A child's share is contingent" below), and there were no lifetime advancements to bring into account under section 5(1)(c). Change either and the figures change.

The step most accounts get wrong: half-siblings do not trigger the $1,000,000

The trigger in section 4(4) is narrow: "(4)If the intestate leaves no issue but does leave a husband or wife and one or more of the following, namely a parent, a brother or sister of the whole blood, or issue of a brother or sister of the whole blood," — a parent, a whole-blood sibling, or issue of a whole-blood sibling. Half-siblings are not in it.

Section 4(2) is the mirror image: "(2)If the intestate leaves a husband or wife and leaves—(a)no issue; and(b)no parent, or brother or sister of the whole blood, or issue of a brother or sister of the whole blood, (Amended 57 of 1995 s. 3)the residuary estate shall be held in trust for the surviving husband or wife absolutely." Again, only a parent or a whole-blood sibling or issue of one.

So: an intestate leaves a spouse, no issue, no parent, and one half-brother. The case falls in section 4(2) and the spouse takes the whole residuary estate; the half-brother takes nothing. Had the brother been of the whole blood, section 4(4) would apply and the spouse would take all the personal chattels plus $1,000,000 plus half the residuary estate, with the brother taking the other half. Whole blood or half blood rewrites the outcome here.

Section 4(4)(b) then splits the other half: "(b)as to the other half—(i)where the intestate leaves one parent or both parents (whether or not brothers or sisters of the intestate or their issue also survive), in trust for the parent absolutely or, as the case may be, for the 2 parents in equal shares absolutely; or(ii)where the intestate leaves no parent, on the statutory trusts for the brothers and sisters of the whole blood of the intestate. (Replaced 57 of 1995 s. 3)" Where a parent survives, siblings rank behind the parent even if the siblings also survive.

One further qualification: section 5(4). "(4)References in section 4(2), (3) or (4) to the intestate leaving, or not leaving, a member of the class consisting of brothers or sisters of the whole blood of the intestate and issue of brothers or sisters of the whole blood of the intestate shall be construed as references to the intestate leaving, or not leaving, a member of that class who attains an absolutely vested interest. (Amended 57 of 1995 s. 4)" So whether the intestate leaves a whole-blood sibling is not a head-count taken on the day of death: it asks whether a member of that class attains an absolutely vested interest. A whole-blood brother who survives but never attains an absolutely vested interest under the statutory trusts in section 4(4)(b)(ii) may not trigger section 4(4) at all, and the case returns to section 4(2), where the spouse takes the whole residuary estate.

"Personal chattels": the defined term, and the qualifier that is easy to miss

The bundle the spouse takes absolutely has a statutory definition in section 2(1):

The qualifier sits at the front of limb (a): the furniture, clothes, articles of adornment and the rest count only if they were, at the time of death, situated at any residence of a surviving husband or wife of the intestate. Furniture in an investment flat, in storage, or in a home the surviving spouse had already left is outside limb (a) on the face of the definition. Limb (b), motor vehicles and accessories, carries no such qualifier.

The definition also excludes two things outright: chattels used exclusively or principally for business or professional purposes, and money or securities for money. Cash, bank balances and shares are therefore not personal chattels; they fall into the residuary estate and go through the formula.

A divergence between the two authentic texts. The Chinese text of Cap. 73 uses 非土地實產 throughout. The English text, in the same section 2(1) definition, glosses the defined term differently — it reads "personal chattels (非土地資產)". Both are enacted texts, and nothing in the Ordinance says which governs. The Chinese block of this article uses the term from the authentic Chinese text.

A child's share is contingent, not vested on the day of death

Sections 4(3)(b) and 4(5) hold property on the statutory trusts, and the content of those trusts is in section 5. Section 5(1)(a):

Three consequences a reader can feel:

• The share is contingent. A child takes on attaining full age, or on marrying under full age — not automatically at the death.
• Grandchildren take per stirpes. The issue of a child who predeceased take through all degrees, according to their stocks, the share their parent would have taken — not an equal head-count share alongside the surviving children.
• No issue takes while their own parent is alive and capable of taking. The subsection says so in terms.
• A child in the womb at the death counts. Section 2(3): "(3)References in this Ordinance to a child or issue living at the death of any person include a child or issue en ventre sa mère at the death." A child conceived but not yet born when the intestate died is a child "living at the death of the intestate" for these trusts — and its existence also decides whether the case is in section 4(2) or section 4(3).

Section 5(1)(c) adds a requirement most people do not expect:

Money or property paid to a child by way of advancement, or on that child's marriage, is brought into account at its value as at the death, in or towards satisfaction of that child's share. The deposit given to one child years earlier may come back into the sum.

And the last layer, section 5(2)(a): "(2)If the trusts in favour of the issue of the intestate fail by reason of no child or other issue attaining an absolutely vested interest—(a)the residuary estate of the intestate and the income thereof and all statutory accumulations, if any, of the income thereof, or so much thereof as may not have been paid or applied under any power affecting the same, shall go, devolve and be held under the provisions of this Ordinance as if the intestate had died without leaving issue living at the death of the intestate;" Paragraphs (b) and (c) of the same subsection carry that through the rest of the Ordinance: "(b)references in this Ordinance to the intestate leaving no issue (無遺下後嗣) shall be construed as “leaving no issue who attain an absolutely vested interest”;(c)references in this Ordinance to the intestate leaving issue (遺下後嗣) or leaving a child or other issue (遺下子女或其他後嗣) shall be construed as “leaving issue who attain an absolutely vested interest”."

The effect is a branch, not a single outcome. The direction in section 5(2)(a) is that the estate is held "as if the intestate had died without leaving issue living at the death of the intestate" — which re-enters section 4 at the top rather than dropping the case into section 4(4). Which branch is taken depends first on whether there is a surviving spouse:

• Spouse surviving, and a parent, or a whole-blood sibling/issue of one attains an absolutely vested interest (mere survival is not enough — see section 5(4) above): the case lands in section 4(4) — personal chattels, $1,000,000 with interest, and half the residue to the spouse.
• Spouse surviving, and none of those survives: the case lands in section 4(2) and the spouse takes the whole residuary estate.
• No spouse — the case that would otherwise have been section 4(5), issue and no husband or wife: since the intestate is now treated as leaving no issue, the estate goes to the parents under section 4(6) or 4(7); if no parent survives, to the five-tier list in section 4(8); and only if all five tiers fail, to section 4(9).

The second branch is the commoner one where there is a spouse — the children have predeceased, the intestate's own parents are already gone, and there is no whole-blood sibling. The third is a reminder that section 5(2) is not a spouse provision: it rewrites the no-spouse cases too. So the failure of the issue trusts cannot be described simply as a move into the $1,000,000 branch.

Groups who assume Cap. 73 entitles them, and it does not — and where some of them can still go

Cohabiting partners. Section 2(1) defines husband and wife as a husband or wife of that person by a valid marriage, and section 3 defines that:

Ordinary cohabitation, however long, is not in the list. There is one historical exception: a union of concubinage entered into before 7 October 1971 is separately provided for under Cap. 73, giving the tsip or surviving male partner intestacy rights of their own — see "Unions of concubinage" below. Outside that historical exception, the route that does exist for a cohabiting partner is in the next section, and it is not intestate succession.

Cousins and remoter relatives. The section 4(8) list is closed. Read it to the end:

Five tiers, and then it stops — whole-blood siblings, half-blood siblings, grandparents, uncles and aunts of the whole blood of a parent, uncles and aunts of the half blood of a parent. There is no further tier for more distant relatives.

But it is the list of classes that is closed, not the list of takers. Each tier in section 4(8) is held on the statutory trusts, and section 5(3) sets out in full what that means for a class other than issue:

Note the two parentheses: "other than the provision for bringing any money or property into account" and "other than as aforesaid". The section 5(1)(c) hotchpot rule, set out at length above for children, does not travel with the statutory trusts to a non-issue class. What an uncle, an aunt or a first cousin received from the intestate in his lifetime is not brought into account.

Substitute "uncles and aunts" into section 5(1)(a) and the trust reads: for the uncles and aunts living at the intestate's death who attain full age or marry before attaining full age, and for the issue, living at the death and attaining full age or marrying before attaining full age, of any uncle or aunt who predeceases the intestate, "such issue to take through all degrees, according to their stocks … the share which their parent would have taken if living at the death of the intestate". The issue of a predeceased uncle or aunt is a first cousin.

The share is contingent here too. The substitution carries the children's contingency across unchanged: a first cousin who is under full age and unmarried has no more of an absolutely vested interest than a child in the same position would have.

What about section 4(8)'s own words, "living at the death of the intestate"? Those words identify the members of each class; they do not confine the takers. The same chapeau governs the first tier, whole-blood brothers and sisters, and it is not in doubt that the children of a brother who predeceased the intestate take there — because the substitutionary limb sits inside the statutory trusts, which the chapeau expressly invokes. Section 5(3) does no more than repeat those same statutory trusts for the uncles-and-aunts tier.

So the accurate statement is: a first cousin whose own parent predeceased the intestate takes per stirpes, ahead of section 4(9) bona vacantia. This is consistent with Cap. 10A rule 21(2)(ii), quoted below under "An intestacy needs letters of administration", which entitles "the issue of any deceased uncle or aunt of the deceased" to apply for a grant — a rule expressly conditioned on that person having a beneficial interest in the estate.

A judicially separated spouse. Section 4A(1) is explicit:

Where a decree of judicial separation is in force and the separation is continuing, the estate devolves as if the other party were dead. Judicial separation is not divorce, but for intestate succession the effect is the same. Section 4A(2) then takes one kind of order out: "(2)Notwithstanding anything in section 5(a) of the Separation and Maintenance Orders Ordinance (Cap. 16), a provision in force in an order made, or having effect as if made, under that section that a party to a marriage be no longer bound to cohabit with the other party to the marriage shall not have effect as a decree of judicial separation on the ground of cruelty for the purposes of this section."

To read that sentence you have to open Cap. 16. Section 5(1) lists what the District Court may order, and paragraph (a) is:

(Cap. 73 section 4A(2) uses the older form "section 5(a)". In the Cap. 16 consolidation in force the provision is numbered section 5(1)(a); looking for "section 5(a)" will not find it.)

That parenthesis is the only mechanism in Cap. 16 by which a non-cohabitation provision is ever a decree of judicial separation, and it produces only one effect — a decree "on the ground of cruelty". Section 4A(2) switches off exactly that mechanism. Once it is switched off, a Cap. 16 section 5(1)(a) non-cohabitation provision has no route left to being a decree of judicial separation for section 4A purposes. The words "on the ground of cruelty" appear in section 4A(2) because that is the language Cap. 16 uses for the deeming, not because some other class of Cap. 16 order survives inside section 4A.

So the answer for a reader in that position is unqualified: a spouse who holds only a Cap. 16 section 5(1)(a) non-cohabitation order, and no decree of judicial separation, is untouched by section 4A(1) and keeps the whole of the section 4 entitlement.

And a spouse who is genuinely excluded by section 4A(1) still has somewhere to go. What is lost is the intestate entitlement, not the standing to apply. Such a spouse remains "the wife or husband of the deceased" for Cap. 481 section 3(1)(i) and need not prove maintenance. The only consequence of the subsisting decree is the standard: section 3(2)(a)(i) expressly excludes an applicant whose "marriage with the deceased was the subject of a decree of judicial separation and at the date of death the decree was in force and the separation was continuing" from the wider tier, so the application is made on the section 3(2)(b) maintenance standard. That exclusion presupposes that the application can be made at all. The six-month limit in Cap. 481 section 6 applies as usual.

Step-children. The Ordinance equates adopted children, not step-children. Section 2(2): "(2)For the purposes of this Ordinance, a person adopted under—(a)an adoption order made under the Adoption Ordinance (Cap. 290);(b)an adoption to which section 17 or 20F of that Ordinance applies; or(c)an adoption made in Hong Kong in accordance with Chinese law and custom before 1 January 1973, shall be treated, subject to subsection (2A), as the child of the adopter, and not as the child of any other person, and all relationships to the adopted person shall be deduced accordingly. (Replaced 57 of 1995 s. 2. Amended 28 of 2004 s. 35)" That covers an adoption order under the Adoption Ordinance (Cap. 290), an adoption to which section 17 or 20F of that Ordinance applies, and an adoption in Hong Kong under Chinese law and custom before 1 January 1973. A step-child who was never adopted is outside it.

But section 2(2) opens with "subject to subsection (2A)", and subsection (2A) is the step-family case. Section 2(2A):

Cap. 290 section 5(1)(c) is the sole applicant who "is a person who is married to a parent of the infant" — a step-parent adopting the child of his or her spouse. Where that is the adoption order, the child is the child of the adopter and of the natural parent who was retained, and inherits on the intestacy of both. The familiar statement that adoption severs the child from the original family is therefore wrong for a step-parent adoption, which is the commonest kind in a step-family.

And a step-child who was never adopted has a route outside Cap. 73. Cap. 481 section 3(1)(vii) is the child-of-the-family limb: "any person (not being a child of the deceased) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage and was being maintained, either wholly or substantially, by the deceased immediately before his death". Two things have to be shown — treatment as a child of the family of a marriage the deceased was party to, and maintenance immediately before the death (defined in section 3(3), below). For a limb (vii) applicant, section 5(4) adds further matters the court must weigh: the manner in which the applicant was being or might expect to be educated or trained, and "(a)to whether the deceased had assumed any responsibility for the applicant’s maintenance and, if so, to the extent to which and the basis upon which the deceased assumed that responsibility and to the length of time for which the deceased discharged that responsibility;(b)to whether in assuming and discharging that responsibility the deceased did so knowing that the applicant was not his own child;(c)to the liability of any other person to maintain the applicant." The six-month limit in section 6 applies.

Illegitimate children do inherit — but note the presumption. Section 3A(1): "(1)For the purposes of this Ordinance, an illegitimate person is presumed not to have been survived by his father, or by any person related to him only through his father, unless the contrary is shown." It is rebuttable, and it does not remove the entitlement, but it puts the burden on the person asserting the relationship. Section 3A(2) lists who is outside it: "(2)The presumption in subsection (1) does not apply to a person who—(a)is a legitimated person within the meaning of section 2 of the Legitimacy Ordinance (Cap. 184);(b)is deemed to be or treated as legitimate, under the Legitimacy Ordinance (Cap. 184);(c)is an adopted person under—(i)an adoption order made under the Adoption Ordinance (Cap. 290);(ii)any adoption recognized as valid by the law of Hong Kong;(d)is otherwise treated in law as legitimate."

Cohabiting partners: the one route that exists, and its six-month deadline

Hong Kong never enacted a "two years' cohabitation" category. The categories entitled to apply for family provision are listed in section 3(1) of the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481).

Before the nine limbs there are two gateways that are easy to miss. Section 3(1) opens "Where after the commencement* of this Ordinance a person dies—" — the asterisk points to the editorial note in the text giving the commencement date as 3 November 1995, so the death must have occurred after that date. Then comes a connecting-factor condition: the deceased must have died "(a)domiciled in Hong Kong; or(b)having been ordinarily resident in Hong Kong at any time in the 3 years immediately preceding his death," and only then "is survived by any of the following persons—". Falling within a limb is necessary but not sufficient. If the deceased was not domiciled in Hong Kong at death and was not ordinarily resident here at any time in the three years before it, the application does not get off the ground at all.

The nine limbs:

The subsection then closes with the ground of the application: "that person may apply to the court for an order under section 4 on the ground that the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant." What is put in issue is not what the applicant deserves but whether the disposition of the estate makes reasonable financial provision for the applicant.

The "child" in limbs (v) and (vi) is also wider than everyday usage. Section 2(1): "child (子女) includes—(a)a child whose father and mother were not married to each other at the time of its birth;(b)a child en ventre sa mere at the death of the deceased;(c)a child of a union of concubinage;(d)a child adopted in Hong Kong in accordance with Chinese law and custom before 1 January 1973;"

None of the nine turns on a period of cohabitation. The note printed at the end of section 3 is still "[cf. 1975 c. 63 s. 1 U.K.]" — a cf. reference to section 1 of the 1975 United Kingdom Act in its original form, not a marginal note. England and Wales later added a limb turning on a period of cohabitation; section 3(1) of Cap. 481 has no counterpart to it.

For most cohabitants the only limb within reach is (ix): "(ix)any person (not being a person included in the foregoing paragraphs of this subsection) who immediately before the death of the deceased was being maintained, either wholly or substantially, by the deceased," The operative words are being maintained, either wholly or substantially, by the deceased, and section 3(3) defines them: "(3)For the purposes of subsection (1)(ii), (iv), (v), (vi), (vii), (viii) and (ix), a person shall be treated as being maintained by the deceased, either wholly or substantially, as the case may be, if the deceased, otherwise than for full valuable consideration, was making a substantial contribution in money or money’s worth towards the reasonable needs of that person."

That test is not about how long you lived together. A partner of twenty years who paid her own way and was financially independent may fail limb (ix); a partner of three years whom the deceased supported may satisfy it. The question at the door is maintenance, not duration.

Duration is not the entry ticket, but it is a mandatory consideration once inside. Section 5(5) provides: "(5)Without prejudice to the generality of paragraph (g) of subsection (1), where an application for an order under section 4 is made by virtue of section 3(1)(viii) or (ix), the court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) of that subsection, have regard to the extent to which and the basis upon which the deceased assumed responsibility for the maintenance of the applicant, and to the length of time for which the deceased discharged that responsibility." Section 5(6) adds one more for a limb (ix) applicant: "(6)Without prejudice to the generality of paragraph (g) of subsection (1), where an application for an order under section 4 is made by virtue of section 3(1)(ix), the court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) of that subsection and subsection (5), have regard to the closeness of the relationship between the applicant and the deceased immediately before the death of the deceased." So the accurate statement has two halves: qualifying under limb (ix) turns on maintenance rather than duration, but how long the deceased discharged that responsibility, and how close the relationship was immediately before the death, are matters the court is required to weigh when it decides whether to make an order and what to award.

One exception: a party to a void marriage does not go through limb (ix) at all. Cap. 481 section 2(1) defines the terms more widely than Cap. 73 does: "husband (丈夫) or wife (妻子), in relation to a deceased person, means—(a)a husband or wife by a valid marriage; and(b)a person who in good faith entered into a void marriage with the deceased unless either—(i)the marriage of the deceased and that person was dissolved or annulled during the lifetime of the deceased and the dissolution or annulment is recognized as valid by the law of Hong Kong; or(ii)that person has during the lifetime of the deceased entered into a later marriage;" A person who in good faith entered into a void marriage with the deceased, and who is outside those two exceptions, is therefore "the wife or husband of the deceased" for limb (i): no maintenance has to be proved, and the wider section 3(2)(a) standard applies rather than the limb (ix) tier below. The proposition that limb (ix) is a cohabitant's only route needs narrowing further still — beyond the void-marriage party under limb (i), a tsip or surviving male partner of a union of concubinage entered into before 7 October 1971 also falls outside limb (ix): they come in directly under limb (iii), with no need to prove maintenance, and the same wider section 3(2)(a) standard applies to them too (see "Unions of concubinage" below). Limb (ix) is genuinely the only route left for a partner who never went through a marriage with the deceased at all, and was never party to a qualifying union of concubinage either.

Applicants under limbs (i), (ii) and (iii) also have their own set of discretion-stage factors. Section 5(2): "(2)Without prejudice to the generality of paragraph (g) of subsection (1), where an application for an order under section 4 is made by virtue of section 3(1)(i), (ii) or (iii), the court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) of that subsection, have regard to—(a)the age of the applicant and the duration of the marriage or union of concubinage;(b)the contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family, and, in the case of an application by the wife or husband of the deceased, the court shall also, unless at the date of death a decree of judicial separation was in force and the separation was continuing, have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage, instead of being terminated by death, had been terminated by a decree of divorce." So duration does not enter only through sections 5(5) and 5(6): for a limb (i) applicant — including the party to a void marriage — and for a limb (iii) tsip or male partner, the duration of the marriage or union is a factor named in section 5(2)(a) itself. The divorce comparison at the end of the subsection is the one that is disapplied for the judicially separated spouse discussed above.

A limb (ix) applicant is also held to the narrower standard. Section 3(2) has two tiers of reasonable financial provision. A spouse under limb (i), and a tsip or male partner under limb (iii), fall within section 3(2)(a) — "(a)in the case of any application made—(i)by virtue of subsection (1)(i) by the husband or wife of the deceased (except where the marriage with the deceased was the subject of a decree of judicial separation and at the date of death the decree was in force and the separation was continuing); or(ii)by virtue of subsection (1)(iii) by a tsip or male partner of the deceased by a union of concubinage, means such financial provision as it would be reasonable in all the circumstances of the case for such a person to receive, whether or not that provision is required for his or her maintenance;" — which is provision reasonable in all the circumstances whether or not it is required for maintenance. Every other applicant, limb (ix) included, falls within section 3(2)(b): "(b)in the case of any other application made by virtue of subsection (1), means such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance."

And the deadline, which matters most. Section 6:

Time runs from the date representation is first taken out — the grant of probate or of letters of administration — not from the death, and not from when the applicant learned of it. "except with the permission of the court" means late applications are possible, but permission has to be sought; it is not a right. For a cohabitant this is sharp: you may not know when the deceased's family obtained the grant, and the clock started that day.

A Cap. 481 claimant also has a place in the order of priority for a grant. Non-Contentious Probate Rules (Cap. 10A) rule 21(4): "(4)If all persons entitled to a grant under the foregoing provisions of this rule have been cleared off, a grant may be made to a creditor of the deceased 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 thereto, or is, by virtue of section 3 of the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481), entitled to apply to the court for an order under section 4 of that Ordinance."

Tsip and unions of concubinage: a separate regime for pre-7 October 1971 unions

Cap. 73 carries a distinct set of provisions for unions of concubinage entered into before 7 October 1971. The surviving cohort is small, but the provisions are in force. Section 13(2): "(2)In subsection (1) and Schedule 1, union of concubinage (夫妾關係) means a union of concubinage, entered into by a male partner and a female partner before 7 October 1971, under which union the female partner has, during the lifetime of the male partner, been accepted by his wife as his concubine and recognized as such by his family generally." Section 13(3) adds a presumption: "(3)Where in any proceedings a union of concubinage is proved to have been entered into by a male partner and a female partner before 7 October 1971, it shall be presumed until the contrary is proved that the female partner has, during the lifetime of the male partner, been accepted by his wife as his concubine and recognized as such by his family generally."

Schedule 1 paragraph 4(1):

So where section 4(2) would have given the whole residuary estate to the wife, the tsip takes one third. The whole scheme is switched on by Schedule 1 paragraph 3: "The Ordinance shall apply to a party to a union of concubinage to the extent set out in paragraph 4 and section 4 shall be modified accordingly."

"One third" is not a single rule: the denominator changes, and in two pairs of sub-paragraphs it is only a life income, not a share. Reading paragraph 4 sub-paragraph by sub-paragraph:

(The table is wide — swipe for the full table.)

The difference is large. In a section 4(3) estate the tsip does not get one third of the residuary estate; she gets the income, for life, from one third of the surviving wife's half — and "the surviving wife's half" is itself the half of what is left after the $500,000-plus-interest provision under s.4(3) (see "Working the numbers" above), not half of the residuary estate before that deduction. So the tsip's fraction is not simply one sixth of the residuary estate as a whole; it is one third of the spouse's post-$500,000-and-interest half — and none of the capital. Within each pair, the odd sub-paragraph is the one-union case and the even one covers more than one union, the tsips who survive sharing the same fraction in equal shares.

The section 4(9) case is not a third; it is the whole. Schedule 1 paragraph 4(10A): "(10A)Where the intestate is at the time of death a party to one union of concubinage and the residuary estate belongs to the Government in accordance with section 4(9), the residuary estate shall be held on trust for the surviving party to the union of concubinage absolutely. (Added 57 of 1995 s. 10. Amended 29 of 1998 s. 105)" Schedule 1 paragraph 4(10B) does the same where there was more than one union: "(10B)Where the intestate is at the time of death a party to more than one union of concubinage and the residuary estate belongs to the Government in accordance with section 4(9), the residuary estate shall be held on trust for such of his tsips who survive him in equal shares absolutely. (Added 57 of 1995 s. 10. Amended 29 of 1998 s. 105)" A residuary estate that would otherwise pass to the Government as bona vacantia goes instead to the surviving party in full, or to the surviving tsips in equal shares.

Two further provisions attach. Schedule 1 paragraph 4(12): "(12)The entitlement under sub-paragraphs (3), (4), (7) and (8) of a tsip to the income from a share in an intestate’s estate shall thereupon cease if she marries. (Amended 57 of 1995 s. 10)" — the income entitlement ends on her marriage. Schedule 1 paragraph 4(13) brings in paragraph 5: "(13)Paragraph 5 shall have effect for enabling a surviving party to a union of concubinage to have his or her life interest redeemed. (Added 57 of 1995 s. 10)" Paragraph 5(1) lets a surviving tsip or male partner elect to have the personal representatives "purchase or redeem the life interest by paying the capital value thereof to the tenant for life, or the persons deriving title under the tenant for life, and the costs of the transaction", and paragraph 5(4) makes that election exercisable "(a)only within the period of 12 months from the date on which representation with respect to the estate of the intestate is first taken out;(b)by notifying the personal representatives in writing." — a second twelve-month clock running from the same starting point.

That right has a precondition in paragraph 5(2), and the valuation method is left outside the Ordinance. Paragraph 5(2): "(2)An election under this paragraph shall only be exercisable if at the time of the election the whole of the relevant part of the residuary estate consists of property in possession, but, for the purposes of this paragraph, a life interest in property partly in possession and partly not in possession shall be treated as consisting of 2 separate life interests in those respective parts of the property." If the relevant part is not wholly property in possession, the election cannot be made over it; only the part in possession is treated separately. Paragraph 5(3) then leaves the capital value to be "reckoned in such manner approved by the Chief Justice as the Secretary for Home and Youth Affairs may by notice in the Gazette prescribe" — that gazetted notice is not part of the legislative text relied on here.

Two earlier sub-paragraphs of Schedule 1 paragraph 2 are often missed. Paragraph 2(1) ties directly back to the section 3A illegitimacy presumption discussed above: "(1)A child of a union of concubinage shall be regarded for the purposes of section 3A as a person whose father and mother were married to each other at the time of his birth." A child of a union of concubinage is deemed, for section 3A, to have parents who were married at birth — so that child never has to rebut the illegitimacy presumption at all. Paragraph 2(2) then widens what "a child of any person" means throughout the Ordinance: "(2)References in the Ordinance to a child of any person (任何人的子女) include—(Amended E.R. 6 of 2019)(a)if that person is the tsip of a union of concubinage, references to—(i)a child of the male partner of that union and his wife; and(ii)a child of any other union of concubinage to which the male partner of that union is or was a party; and(b)if that person is the wife of the male partner of a union of concubinage, references to a child of that union of concubinage, and issue (後嗣) shall be construed accordingly. (Amended E.R. 6 of 2019)"

Schedule 1 paragraph 2(3) also rewrites the blood classification among siblings: "(3)A child of a union of concubinage and—(a)a child of the male partner of that union and his wife; and(b)a child of any other union of concubinage to which that male partner is or was a party, shall be regarded for the purposes of section 4(2)(b), (4) and (8) as siblings of the whole blood."

Cap. 481 section 3(1)(iii) separately names "(iii)a tsip or male partner of the deceased by a union of concubinage;" as an applicant in their own right, and applies the more generous section 3(2)(a) standard to them.

The surviving spouse can require the home to be appropriated — for twelve months only

This right rarely appears in general accounts. Section 7: "Schedule 2 shall have effect for enabling the surviving husband or wife of an intestate to acquire the premises in which the surviving husband or wife was residing at the time of the intestate’s death."

Schedule 2 paragraph 1(1):

The spouse elects; the personal representatives appropriate the interest in the home towards the spouse's interest in the estate, with a cash payment by the spouse to make up any excess under paragraph 1(1)(b).

The conditions and limits:

• A twelve-month deadline. Schedule 2 paragraph 3(1): "(1)An election under paragraph 1—(a)shall not be exercisable after the expiration of 12 months from the first taking out of representation with respect to the intestate’s estate;(b)shall not be exercisable after the death of the surviving husband or wife;(c)shall be exercisable by notifying the personal representatives in writing." Time runs from the first taking out of representation, the same starting point as Cap. 481 section 6. What that phrase means is not left to inference: paragraph 3(3) applies the definition in Schedule 1 paragraph 1(2), which provides that "(a)taking out representation (取得承辦) refers to the obtaining of the probate of a will or the grant of administration; and (Amended E.R. 6 of 2019)(b)in deciding when representation was first taken out, a grant limited to part only of the estate of the deceased shall be left out of account unless a grant limited to the remainder of the estate has previously been made or is made at the same time." A grant limited to part only of the estate does not start the clock unless a grant for the remainder was made earlier or at the same time.
• A valuation can be demanded first, and the notice is then irrevocable. Paragraph 3(2): "(2)A notification in writing under subparagraph (1)(c) is not revocable except with the consent of the personal representatives; but the surviving husband or wife may require the personal representatives to have the interest in the residence valued in accordance with paragraph 1(3) and to inform him or her of the result of that valuation before he or she decides whether to exercise the right." The spouse can insist on knowing the figure before electing; after electing, withdrawal needs the personal representatives' consent.
• Short tenancies are excluded. Paragraph 1(2) disapplies the right where the interest is a tenancy that would determine within two years of the death, or that the landlord could determine within the remainder of that period by notice given after the death.
• Two situations need the court first. Paragraph 2: where the residence forms part of a building and the residuary estate includes an interest in the whole of the building, or was at the death partly used for purposes other than domestic purposes, the election is not exercisable unless the court is satisfied that exercising it "is not likely to diminish the value of the assets in the residuary estate (other than the interest in the residence) or make them more difficult to dispose of" and so orders.
• The personal representatives are restrained meanwhile — but that restraint carries three further qualifications. Schedule 1 paragraph 4(1): "(1)During the period of 12 months mentioned in paragraph 3, the personal representatives shall not without the written consent of the surviving husband or wife sell or otherwise dispose of the interest in the residence except in the course of administration owing to want of other assets." The immediately following paragraphs 4(2)–(4) cut that restraint back materially: Schedule 1 paragraph 4(2) — where the court, on an application under paragraph 2 (above), does not order that the paragraph 1 election is exercisable by the surviving spouse, the court may authorize the personal representatives to dispose of the interest within the 12 months; Schedule 1 paragraph 4(3) — "This paragraph shall not apply where the surviving husband or wife is the sole personal representative or one of 2 or more personal representatives", so where the surviving spouse is themselves a personal representative, paragraph 4 does not apply at all; and Schedule 1 paragraph 4(4) — "Nothing in this paragraph shall confer any right on the surviving husband or wife as against any person who in good faith acquires an interest in property for valuable consideration (including marriage but not including a nominal consideration in money)" from the personal representatives. Treating Schedule 1 paragraph 4(1) as the complete "condition and limit" overstates this protection.
• The spouse being one of the personal representatives does not block the purchase. Schedule 2 paragraph 5: "Where the surviving husband or wife is one of 2 or more personal representatives, the rule that a trustee may not be a purchaser of trust property shall not prevent the surviving husband or wife from purchasing the residence in accordance with this Schedule." Trust law ordinarily bars a trustee from buying trust property from himself (self-dealing); this paragraph carves the spouse out of that rule even where the spouse is also a personal representative.
• Unsound mind or infancy does not defeat the election. Schedule 2 paragraph 6: "(1)Where the surviving husband or wife is a person of unsound mind, an election, requirement or consent under this Schedule may be made or given on his or her behalf by the guardian or committee, or where there is no guardian or committee, by the court. (2)An election, requirement or consent made or given under this Schedule by a surviving husband or wife who is an infant shall be as valid and binding as it would be if he or she were of age." A guardian, committee or the court can elect for a spouse of unsound mind, and an infant spouse's own election is as valid as an adult's.

Other provisions that change the answer

Simultaneous deaths: the statute supplies the default; no litigation needed. Section 4(11): "(11)Where the intestate and the intestate’s husband or wife have died in circumstances rendering it uncertain that one of them, or which of them, survived the other this section shall have effect as respects the intestate as if the husband or wife had not survived the intestate. (Amended 62 of 1984 s. 11)" Where it cannot be established who survived whom, the law treats the spouse as not having survived, and the no-spouse scenarios apply. For a party to a union of concubinage entered into before 7 October 1971, Schedule 1 paragraph 4(11) extends the same rule: "(11)Reference to a husband or wife in section 4(10) and (11) shall be deemed to include references to a party to a union of concubinage."

Partial intestacy: what the will gave is set off. Section 8(1)(a): "(a)where the deceased leaves a husband or wife who acquires any beneficial interests under the will of the deceased (other than personal chattels specifically bequeathed) the references in this Ordinance to the net sum payable to a surviving husband or wife, and to interest on that sum, shall be taken as references to the said sum diminished by the value at the date of death of the said beneficial interests, and to interest on that sum as so diminished and, accordingly, where the said value exceeds the said sum, this Ordinance shall have effect as if references to the said sum, and interest thereon, were omitted;" The value at the date of death of the spouse's beneficial interests under the will (other than specifically bequeathed personal chattels) reduces the net sum dollar for dollar, and can extinguish it entirely.

Paragraph (b) of the same subsection is aimed at the children, and is usually left out. Section 8(1)(b): "(b)the requirements of section 5 as to bringing property into account shall apply to any beneficial interests acquired by any issue of the deceased under the will of the deceased, but not to beneficial interests so acquired by any other person." On a partial intestacy, a legacy taken by a child or other issue under the will is brought into account under section 5(1)(c) against the share that issue takes on the statutory trusts — so the $625,000 in the worked example above would be reduced by the value of any legacy that child also received. Beneficial interests taken under the will by anyone who is not issue are expressly outside the rule.

Interests acquired under foreign intestacy law are set off too. Section 8A(2): "(2)The references in this Ordinance to the net sum payable to a surviving husband or wife, and to interest on that sum, shall be taken to be references to the net sum diminished by the value at the date of death of the beneficial interests referred to in subsection (1), and to interest on that sum as so diminished and, accordingly, where the value of those beneficial interests exceeds the net sum, this Ordinance shall have effect as if references to the net sum, and interest on that sum, were omitted." Section 8A(3) applies a corresponding bringing-into-account rule to beneficiaries other than the spouse.

When nobody takes: the Government does, subject to Cap. 481. Section 4(9): "(9)In default of any person taking an absolute interest under the foregoing provisions, the residuary estate of the intestate shall, subject to the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481), belong to the Government as bona vacantia and the Government may (without prejudice to any other powers), out of the whole or any part of the property devolving on it, provide for dependants, whether kindred or not, of the intestate, and other persons for whom the intestate might reasonably have been expected to make provision. (Amended 57 of 1995 s. 3; 29 of 1998 s. 105)" Two things to notice: the whole subsection is subject to the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481), and the Government has an express power to provide for the intestate's dependants and for other persons for whom the intestate might reasonably have been expected to make provision. And where the intestate was a party to a union of concubinage entered into before 7 October 1971, Schedule 1 paragraphs 4(10A) and 4(10B) divert the whole of that residuary estate to the surviving party or parties instead — see "Tsip and unions of concubinage" above.

Both net sums can be changed. Section 4(13): "(13)The Legislative Council may, from time to time, by resolution vary either or both of the net sums charged by subsections (3) and (4), and any reference in this Ordinance, or in any other Ordinance, to either of such net sums shall have effect as a reference to the corresponding net sum as varied under this subsection." Section 4(14): "(14)Any resolution under subsection (13) varying the amount of either of such net sums shall have effect in relation to the estate of any person dying after the coming into force of the resolution." The $500,000 and $1,000,000 are not fixed in perpetuity by the Ordinance; the Legislative Council may vary them by resolution, effective for the estate of a person dying after it comes into force. What matters in any case is the figure in force at the date of death.

An intestacy needs letters of administration

With no will there is no executor; an administrator must apply to the Probate Registry for letters of administration. The order of priority comes from rule 21 of the Non-Contentious Probate Rules (Cap. 10A) — not from Cap. 73:

Note that limb (i) places the surviving partner or partners to a union of concubinage entered into before 7 October 1971 in the top tier alongside the surviving spouse. Rule 21(2)'s trigger is narrower than "the classes below", and is worth reading in full:

Three points. The condition asks only whether anyone in classes (ii) and (iii) of rule 21(1) — the children and the parents — survived; it does not require the surviving spouse in class (i) or the siblings in class (iv) to be cleared off. Class (ii) expressly includes the issue of an uncle or aunt who predeceased the deceased — the first cousins discussed above — and the whole paragraph is conditioned on that person having a beneficial interest in the estate, which matches the section 5(3) analysis. And the closing words carry the entitlement into relationships established by or resulting from a union of concubinage.

Rule 21(3): "(3)In default of any person having a beneficial interest in the estate, the Official Administrator." Rule 21(4) then opens the grant to creditors and to Cap. 481 claimants, as quoted above. Rule 21(5) adds a further layer: the personal representative of someone who was themselves entitled can step into their shoes. "(5)Subject to rule 25(3), the personal representative of a person in any of the classes mentioned in paragraphs (1) and (2) of this rule or the personal representative of a creditor shall have the same right to a grant as the person whom he represents: Provided that the persons mentioned in paragraph (1) and in paragraph (2) of this rule shall be preferred to the personal representative of a spouse who had died without taking a beneficial interest in the whole estate of the deceased as ascertained at the time of the application for the grant." So if, say, the surviving spouse in paragraph (1) died before applying for the grant, that spouse's own personal representative can apply in their place — but the proviso keeps any other living person in paragraphs (1) or (2), such as a child or parent, ahead of that personal representative where the deceased spouse held no beneficial interest in the estate as things stood when the grant was applied for. Rule 21(6) adds: "(6)The provisions of the Adoption Ordinance (Cap. 290) shall apply in determining the entitlement to a grant as they apply to the devolution of property on intestacy." — so the adoption rules in Cap. 73 sections 2(2) and 2(2A) also decide who may apply for the grant.

On age, it is not quite right to say that Cap. 10A rules 31 and 32 impose a requirement that an applicant be at least 21. What they provide for is a grant for the use and benefit of a person under 21. Rule 31: "(1)Where a person to whom a grant would otherwise be made is under the age of 21 years, administration for his use and benefit until he attains that age shall, subject to paragraphs (3) and (5) of this rule, be granted—(a)to the parents of the person jointly or to any guardian appointed by the court; or(b)if there is no such guardian able and willing to act and the person has attained the age of 16 years, to any next of kin nominated by the person or, where the person is a married woman, to any such next of kin or to her husband if nominated by her." Rule 32 deals with the case where one of two or more executors is under 21. At ordinance level there is a further rule in Cap. 10 section 39, for a sole executor under 21: "(1)Where a person under the age of 21 years is sole executor of a will, administration with the will annexed shall be granted to his guardian (if any), or to such other person as the court thinks fit, until the person attains the age of 21 years, and on his attaining that age, and not before, probate of the will may be granted to him." For the procedure, documents and fees, see grant-of-probate-hong-kong.

Related guides: making a will ・ grant of probate ・ Hong Kong wills and probate overview

Deadlines worth writing down

For the second and third rows, that starting point is read with Schedule 1 paragraph 1(2) — a grant limited to part only of the estate is left out of account, as set out above.