Resealing Foreign Grants of Probate in Hong Kong

This practice note addresses the recognition in Hong Kong of grants of probate and letters of administration issued by competent authorities outside Hong Kong. The position frequently arises where a testator habitually resident abroad dies leaving assets situated in Hong Kong — typically a HSBC or Standard Chartered deposit account, a portfolio of Hong Kong-listed securities, or residential property held in the testator’s sole name. The estate has already been the subject of a grant in the testator’s home jurisdiction; the executor or administrator must now obtain authority to call in the Hong Kong assets. Two routes are available: a fresh application to the Hong Kong Probate Registry, or resealing of the foreign grant. Where resealing is open, it is almost invariably the faster and cheaper course.

Statutory Basis — Section 49 of Cap. 10

The resealing regime is established by section 49 of the Probate and Administration Ordinance (Cap. 10). In broad terms, the section permits a grant of probate or letters of administration issued by a court of competent jurisdiction in a place designated by the Chief Justice to be produced to, and sealed with the seal of, the Probate Registry of the High Court of Hong Kong. Upon resealing, the grant has the like force and effect, and the same operation in Hong Kong, as if it had been originally granted by the Hong Kong court. The procedural mechanics are supplemented by the Non-Contentious Probate Rules (Cap. 10A), which prescribe the form of application, the supporting affidavit, and the documents to be lodged.

The historical origin of the regime lies in the Colonial Probates Act 1892 (UK) and the reciprocal arrangements between Commonwealth jurisdictions. The Hong Kong provision continues that tradition: it operates by reference to a list of designated “places” whose grants are recognised, the list being maintained by gazette notification and reviewed from time to time.

When Resealing Is Available — and When It Is Not

Three preconditions must be satisfied before the resealing route is open. First, the original grant must have been issued by a court of competent jurisdiction in a designated place. Second, the grant must remain in force and unrevoked in the issuing jurisdiction at the date of the resealing application. Third, the grant must be of a type capable of being resealed — typically a grant of probate, letters of administration, or letters of administration with the will annexed, though grants of a limited or temporary character may require further analysis.

Where the foreign grant has been issued by a jurisdiction not within the designated schedule — for example, certain civil-law jurisdictions whose succession instruments are not the procedural equivalent of a common-law grant — resealing is not available. In such cases, the personal representative must apply to the Hong Kong Probate Registry for a fresh grant, typically letters of administration with the will annexed, supported by affidavit evidence of foreign law to establish the entitlement of the applicant under the lex domicilii of the deceased. That route is significantly more involved than resealing and ordinarily entails the engagement of a foreign-law expert.

Procedure at the Hong Kong Probate Registry

An application to reseal is made to the Probate Registry at the High Court Building, 38 Queensway, Admiralty (Registry counter at LG3). The principal documents to be lodged include: the original foreign grant or a court-certified office copy bearing the seal of the issuing court; a copy of the will, if any, annexed to or referred to in the grant; the prescribed application form together with a supporting affidavit by the applicant or the applicant’s solicitor verifying the applicant’s identity, the death of the deceased, the currency of the grant in the issuing jurisdiction, and particulars of the Hong Kong assets to be administered; an inland revenue affidavit or its current procedural successor disclosing the Hong Kong estate; and the prescribed court fee.

Where the applicant is resident outside Hong Kong — which is usually the case — the application may be made through a Hong Kong solicitor or through a lawfully constituted attorney appointed under a power of attorney executed by the foreign grantee. The attorney route requires the power of attorney itself to be lodged and may necessitate a separate grant of administration limited to the attorney’s authority. Service requirements are minimal in the ordinary non-contentious case, but where a caveat is entered or a competing interest emerges, the matter will be transferred to contentious probate proceedings under the Rules of the High Court.

Effect of Resealing

Once resealed, the foreign grant operates in Hong Kong with the same force and effect as a grant originally issued by the Hong Kong court. The grantee may accordingly present the resealed grant to Hong Kong banks, the Land Registry, share registrars and other custodians to call in, transfer or otherwise deal with the Hong Kong assets. The grantee’s fiduciary duties under Hong Kong law attach from the date of resealing, including the duty to administer the Hong Kong estate in accordance with the terms of the will (or, in the case of intestacy, the Intestates’ Estates Ordinance (Cap. 73)) and to keep proper accounts.

Practical Considerations and Common Pitfalls

In practice, the Probate Registry will return an application that is not in the form it expects. The most frequent points of difficulty include the following. First, the document tendered as the “foreign grant” is sometimes a solicitor’s certified copy rather than a court-sealed office copy; only the latter is accepted. Second, where the original grant has been amended or re-issued in the home jurisdiction (for example, on substitution of an executor), the amended grant must be tendered and its provenance explained. Third, the inland revenue affidavit must accurately describe the Hong Kong assets — both in their nature and their valuation at the date of death — and omissions discovered after resealing will require a corrective affidavit. Fourth, foreign grants denominated in a foreign language must be accompanied by a certified English translation, with the translator’s qualifications verified by affidavit.

On timing, a straightforward resealing application in which all documents are in order can typically be processed by the Probate Registry within a comparable period to a domestic non-contentious application, though practitioners should not assume parity in every case. On fees, the prescribed Probate Registry fees apply on the same basis as for a domestic grant; legal fees will depend on the complexity of the foreign documentation and the number of Hong Kong asset-holders to be addressed.

Finally, where the testator left assets in a third jurisdiction in addition to Hong Kong and the home jurisdiction, careful sequencing is required. It is generally preferable to obtain the home-jurisdiction grant first, then reseal in Hong Kong (or apply for a fresh Hong Kong grant where resealing is unavailable), and address the third jurisdiction by the route that jurisdiction itself prescribes. This practice advises on the entire chain where instructed.