beneficiaries, addresses assets in all
the countries where they’re held, and
is signed by two witnesses who are not
beneficiaries.
“The executor carries out the
terms of the will, applies for grant of
probate, and access to any safe deposit
box, and for funds from the estate
for the dependents while the will is
in probate,” Mark explains. Without
an executor, someone needs to act as
administrator, a role governed by some
elaborate rules in Hong Kong.
“Given the complexity of most
expatriates’ financial lives, even a
well-constructed will may not be
enough,” Mark warns. “Having one
will to cover multiple jurisdictions can
add significantly to the time it takes
to settle assets, and therefore costs,
in each location.” While Asa from
Phoenix Wills is quick to point out
that “it is no worse for expats than for
anyone else in Hong Kong,” she does
say an expat situation “can be harder,
especially if, as a surviving spouse,
you lose your visa and have to leave
before all the paperwork is finished; all
joint bank accounts might be frozen,
so there may be no cash for airfares...
Without a will, the courts need to track
down everyone who could have a claim
to the estate, and will then decide on
the final split based on intestacy rules;
a split that may or may not be what
you would have wanted.”
In the living years
“Otherwise known as advanced
medical directives, living wills are used
to give medical teams and families
direction in the event you become
incapacitated through accident or
illness,” Jessica from Professional Wills
explains. “It is used not only in the
negative sense – ‘do not revive’ – but
also in the positive – ‘do all you can to
keep me alive’. One might think this is
not an important document or unlikely
to be used. But in such an eventuality,
it is of much comfort to family and
one’s medical team to know that when
you were
compos mentis
you carefully
laid out your wishes.”
Doctors may be reluctant to accept
the decisions of a seriously ill patient
because of uncertainty about his/her
rational state of mind, Asa explains. “A
living will gives healthcare providers
some legal protection. Your ability
to pre-determine the circumstances
in which further treatment should be
withheld is very important, as well as
stating who should have the power to
discontinue treatment.”
A living will does not carry the
same legal status in Hong Kong as
a last will and testament, and must
be made at a time when the person
is in full possession of their mental
faculties. It may be revoked or altered
at any time prior to mental incapacity.
Living wills cannot be used to insist
upon specific treatments (for example,
euthanasia).
Another document the experts
advise for is an enduring power of
attorney (EPA). A normal power of
attorney lapses if a person loses mental
capacity, but an EPA remains valid,
and often only comes into effect under
such circumstances.
“If you were in a coma following
an accident, bills would remain unpaid
and it would not be long before trouble
started because no one would be able
to use your bank account,” Asa warns.
“If your salary stopped, direct debits
and standing instructions would fail as
money ran out.”
Having one will to cover multiple
jurisdictions can add significantly to
the time it takes to settle assets, and
therefore costs, in each location.
October 2013
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