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Estate issues in Hong Kong when French nationals are involved

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The settlement of a French national’s estate including assets in Hong Kong can be relatively costly, long, and problematic if simple precautions, such as the appointment of an executor, are not taken.

From a Hong Kong perspective, which law applies to an international estate?

To determine this, the distinction between movable and immovable property is used:

  • Movable property is governed by the law of the deceased’s “domicile” (a common law concept referring to one’s permanent home);
  • Immovable property is governed by the law of the place where it is situated, “Lex Situs“.
  • The notion of “domicile” is to be determined as a matter of priority since it can determine the law applicable to movable property.

To determine the “domicile” of a person, it is necessary to determine where the person intended to take up residence and whether he/she had severed his ties with his/her domicile of origin.

Whether the death took place in Hong Kong or not, regardless of the law applicable to the estate, as soon as the estate includes assets in Hong Kong, whether movable, such as a bank account, shares held in a securities account, or real estate, it will be necessary to go through the “Probate” procedure.

By “Probate”, we refer to a judicial procedure for the settlement of estates, specific to common law countries such as Hong Kong.

Dealing with estates in Hong Kong often confuses French nationals because the way estates are handled in France varies significantly.

Indeed in France, the notary takes charge of the entire procedure from the opening of the estate, the determination of the heirs to liquidation and sharing, including the inventory of assets. In Hong Kong this role is entrusted to an executor, whether professional or not.

Hong Kong law provides for two options:

  • appointing an executor by way of a will; and
  • the absence of a will and in this situation, relies on the law to appoint the administrator of the estate.

If an executor is not appointed, the settlement of the estate in Hong Kong will take longer, and the settlement of the estate relating to the property in France will be suspended during this time.

The Probate Procedure

The opening of the estate in Hong Kong requires the filing of an application with the Probate Registry, a division of the High Court of Hong Kong, for the issuance of a Grant of Representation Order, empowering the executor or administrator, as the case may be, to manage the estate. Once the Grant of Representation is obtained, the procedure does not stop there, as there are a certain number of other legal requirements to be met.

The process will be less troublesome in the presence of an executor appointed by the deceased in his will. Indeed, the administrator of an estate has to prove his capacity, which is all the more complicated when the deceased was a foreign national.

The importance of drafting a will in Hong Kong

In the absence of a will, the “Probate” procedure (which is already slow) is further lengthened.

For this reason, we strongly recommend that French nationals owning property in Hong Kong, or in another Common Law country, have a will drawn up in English to designate one or more executors.

It is important to emphasize that a Grant of Representation is required to take possession of the property in Hong Kong, even if French law applies to the whole estate. Banks will require this Grant of Representation to release funds held in an account in the deceased’s name, and this applies to other common law countries.

For French nationals who move from one country to another and hold property in several common law countries, there are simplified procedures to avoid having to obtain a Grant of Representation in each country.

Finally, it is essential to be reminded that when it comes to international estate matters, we must make a distinction between the following:

  • the determination of the law applicable to the estate, which determines the rules of devolution of the estate (the heirs and the share due to them);
  • the settlement of the estate (role of the notary in France/ Probate procedure in Hong Kong); and
  • inheritance tax.

In light of the above, the assistance of a lawyer to guide you through the successive steps of an estate (being at the stage of the planning or the opening of the Probate procedure) is fundamental.

If you need more hands-on assistance with your legal issues, we recommend to contact one of us at OLN. Our French practice has decades of experience advising French nationals on estate planning and can provide expert advice to help you protect your Hong Kong assets.

If you have any questions regarding your estate planning or other legal issues, feel free to contact us.

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

OLN Has Once Again Been Recognised by The Legal 500 Asia Pacific

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We are pleased to share that Oldham, Li & Nie has been recommended again by The Legal 500 in its 2023 Asia Pacific edition for our Commercial, Corporate and M&A practice. The Legal 500 stated “Under the leadership of Tracy Yip acts on corporate matters across Asia, including restructurings, acquisitions and disposals, corporate governance issues, joint ventures and commercial agreements. Yip heads up the firm’s M&A practice, while founder and senior partner Gordon Oldham has a particular focus on the drafting of commercial contracts and restructurings. Simon Wong is another name to note with experience across M&A and capital markets deals.”

OLN has also been named for the first time as the Firm to Watch for our Restructuring and Insolvency practice – “Oldham, Li & Nie, led by Richard Healy, carries a strong breadth of restructuring & insolvency matters and has garnered specific expertise in audit negligence as well as large scale winding up proceedings.”

OLN IP Services, our Intellectual Property consultancy, has also been recognised by the directory this year.

Legal 500 Asia Pacific Leading Firm 2023 Oldham, Li & Nie
Legal 500 Firms to Watch Oldham, Li & Nie
About The Legal 500 Asia Pacific

Published annually, The Legal 500 Asia Pacific Guide provides unbiased commentary and insight into the legal marketplaces of 25 Asia Pacific jurisdictions.

The rankings reflect the results of detailed analysis of law firm submissions and thousands of interviews conducted by The Legal 500 team of experienced researchers.

The directory also lists Firms to Watch to highlight those likely to make their mark on the rankings in the years to come. 

OLN Recognised Again as a Leading Firm by Chambers and Partners

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We are pleased to announce that Oldham, Li & Nie has been recognised once again as a Leading Firm by Chambers & Partners in its newly released Greater China Region Guide 2023.

Chambers & Partners is the world’s leading provider of legal research and analysis. Its second edition of Greater China Region Guide brings together extensive, independent in-depth market analysis, and rankings of the leading law firms and professionals across all four jurisdictions of the Greater China Region. It features five exclusive sections: China (International Firms), Hong Kong Bar, China (PRC Firms), Macau SAR and Taiwan Jurisdiction. 

Our departments were recommended as follows:

  • Corporate/M&A: Independent Hong Kong Firms – Band 3
  • Family/Matrimonial (International Firms) – Band 4

Our four lawyers received individual rankings:

Chambers Greater China Region 2023 Badge - Ranked Firm Oldham, Li & Nie

Oldham, Li & Nie contributed to the Lexology Getting The Deal Through (GTDT) series – Public M&A Hong Kong

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The Lexology GTDT – Public M&A guide has been published. Our Partner Simon Wong prepared the Hong Kong chapter for the guide.

This reference guide enabling side-by-side comparison of local insights into public M&A issues worldwide, including types of business combination; principal laws and regulations; cross-border and sector-specific considerations; governing laws; filing and disclosure requirements; duties of directors and controlling shareholders; shareholder approval and appraisal rights; hostile transactions; break-up fees and frustration of additional bidders; government influence; conditional offers; financing; minority squeeze-outs; waiting and notification periods; tax; labour and employee benefits; restructuring, bankruptcy or receivership; anti-bribery, anti-corruption and sanctions issues; and recent trends.

Read and download the whole chapter below.

Download the Lexology Getting the Deal Through (GTDT) Public M&A Hong Kong Chapter

The Future Of Travel From A Family Law Perspective

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(This article was published in the November 2022 Issue of “Britain in Hong Kong – The Future of Travel” magazine)

In Hong Kong, the quarantine rules have drastically eased after almost 3 years of tight restrictions.  In particular, the Hong Kong Government recently removed the hotel quarantine restriction.

With the ease of travel restrictions in Hong Kong, what is the future of travel from a family law perspective and the things you should consider ahead of your holidays? 

Whilst it may be desirable to book flights and pack your bags for a spontaneous trip, it is more complicated when you are divorced or are divorcing and have children to consider.  Prior to leaving Hong Kong with the children, an agreement must be reached with the co-parent. If an agreement is not reached, the parent who wishes to remove the children from the jurisdiction of Hong Kong for the holidays must apply to the Family Court for an order allowing him/her to remove the children from Hong Kong.  Given the delays with the Family Court, it is a good idea to apply as early as possible as it may take two (2) to three (3) months before it will  be decided by the Family Court.

For example, if you are planning a holiday with the children next summer and you are currently in dispute with your spouse about these holidays, you should meet with your solicitor as soon as possible and apply to the Family Court preferably no later than January 2023 to avoid pressure with respect to air tickets and hotel bookings.

The Family Court orders have a deadline for the return of children to Hong Kong.  However, it is preferable to have flexible dates built into the Family Court order so that if there is a delay caused by a flight cancellation or you or your family member has a sudden onset of Covid-19 whilst traveling, provisions will be made in the Family Court order so that the extraneous events which you have no control over, do not cause you to be in breach of the Family Court order and does not result in further court applications being made.   

Ahead of travel, another document you may want to consider is a Deed of Parenting. A Deed of Parenting is a legal document that simply states that you and your spouse are the legal parents of the children.  On a practical level, you can take with you the original birth certificates of the children (instead of a Deed of Parenting) or preferably have your solicitor sign a certified true copy of the birth certificate so you do not have to take the original documents with you whilst traveling.  Whilst a Deed of Parenting is not needed in a “traditional” family, these days families are often made up of same-sex couples where the birth certificates will not assist.  In these circumstances, a Deed of Parenting will be helpful.  A Deed of Parenting can clearly state the legal parents of your children without any question or issue.

This may be important during these travel times when customs and immigration officers are burdened with ever-changing rules for individuals coming in and out of their country. 

Another legal document parents may wish to consider is a Deed of Guardianship.  A Deed of Guardianship sets out guidelines for the caring and well-being of minor children in the event of both parents passing away or temporary unavailability due to unforeseen circumstances such as unexpected quarantine during Covid-19 times, especially if you test positive upon arrival in Hong Kong and are required to quarantine at a designated hotel or quarantine facility.

A Deed of Guardianship is a legal document signed by both parents and two witnesses and sets out specific guidelines regarding the care of your minor children.  A Deed of Guardianship will set out the minor children’s primary caretakers and can also identify temporary guardians until such time the minor children can be in the care of their parents or permanent guardians.

Deed of Guardianships may be especially important to expatriates living in Hong Kong, especially when family members are not in the same jurisdiction.  For many expatriates, having a Deed of Guardianship can provide parents with the peace of mind about the care of their children in emergency situations.

It is important to speak with a solicitor who can assist in the preparation of travel with your children.  Oldham, Li & Nie (“OLN”) has a full-service matrimonial team well-versed on such topics and can provide comprehensive advice. Having the appropriate documents prior to travel is imperative in this post-Covid world and can provide you with peace of mind!


Hong Kong’s proposed refinements on foreign source income exemption (“FSIE”) regime for passive income – Part 1

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In response to its inclusion on the “watchlist” for non-cooperative jurisdictions for tax purposes by the European Union (“EU”), the Hong Kong government launched a consultation on the proposed refinements to Hong Kong’s FSIE regime for passive income, mapping out significant changes to address the EU’s concerns such that Hong Kong would not be “blacklisted” by the EU for tax purposes.

The amendment bill in relation to the proposed refinements will be introduced into the Legislative Council in October 2022. The Financial Services and the Treasury Bureau aim to secure the passing of the amendment bill by the end of 2022 and bring the refined FSIE regime into force from 1 January 2023. The Inland Revenue Department will issue administrative guidance on requirements for exemptions and tax credits (please see part 2 below).

1. What is taxable and who is the taxpayer?
Covered income

Under the FSIE, offshore passive income is deemed to be sourced from Hong Kong and chargeable to profits tax if it is:

  1. interest, dividends, disposal gains or intellectual properties (“IP”) income (collectively, “In-scope Offshore Passive Income”);
  2. received in Hong Kong;
  3. by a constituent entity of an MNE group (a “Covered Taxpayer”); and
  4. the Covered Taxpayer fails to meet the relevant economic substance requirement or nexus approach requirements.

Covered taxpayer

The proposed refinements will only apply to multinational enterprise groups (“MNE”) which is defined under the Global Anti-Base Erosion (“GloBE”) Rules promulgated by the Organisation for Economic Co-operation and Development as “any group that includes at least one entity or permanent establishment that is not located in the jurisdiction of the ultimate parent entity”.

Hence, the proposed refinements are not applicable to: (1) stand-alone local companies, (2) purely local group companies or (3) individuals.

2. Exemptions and tax credit

According to the consultation paper, by meeting the relevant economic substance requirements or nexus approach requirements, or qualifying under the participation exemption, an In-scope Offshore Passive Income could still be exempt from profits tax.

Step 1 and 2: economic substance / nexus approach & participation exemption

Interest Dividends Disposal gains IP income

Step 1 

Can the covered income fulfill these requirements?

1a. If yes, the income would not be deemed taxable.

1b. If no:

For interest and IP income, check if the income is qualified for foreign tax credit or unilateral tax credit (see Step 3 below).

For dividends and disposal gains, check if the income is qualified for participation exemption (see Step 2 below).

Economic substance requirements

  • The Covered Taxpayer has to conduct substantial economic activities (“Relevant Activities”) with respect to the relevant passive income in Hong Kong:
  • for a non-pure equity holding company, the Relevant Activities will include (i) making necessary strategic decision, and (ii) managing and assuming principal risks in respect of any assets it acquires, holds or disposes of.
  • for a pure equity holding company (i.e. a company which, as its primary function, acquires and holds shares or equitable interests in companies and only earns dividends and disposal gains in relation to shares or equity interest), a reduced substantial activities test applies and the Relevant Activities will only include (i) holding and managing its equity participation, and (ii) complying with the corporate law filing requirements in Hong Kong.
  • It is possible for the Covered Taxpayer to outsource the Relevant Activities if it is able to demonstrate (i) adequate monitoring of the outsourced activities, and (ii) that the Relevant Activities are conducted in Hong Kong.

How is “substance” being measured?

  • Non-pure equity holding companies have to meet the adequacy test in terms of:
  • (i) employing an adequate number of qualified employees; and
  • (ii) incurring an adequate amount of operating expenditures in Hong Kong in relation to the Relevant Activities.
  • The Inland Revenue Department (“IRD”) will consider whether a taxpayer has met the adequacy test after taking into account a list of factors, including:
  • (i) nature of business;
  • (ii) scale of operation;
  • (iii) profitability;
  • (iv) details of employees employed;
  • (v) the amount and types of operating expenditures incurred, etc.
  • As the adequacy test will be determined based on a totality of facts, there will be no minimum objective threshold in terms of number of employees or operating expenditure.
  • Pure equity holding companies have to meet the reduced substantial activities test, which may be satisfied by:
  • (i) having a director who is a Hong Kong tax resident;
  • (ii) holding annual board meetings;
  • (iii) fulfilling annual filing requirements under the Companies Ordinance, etc.
  • subject to further guidance from the IRD and the draft legislation.

Nexus approach requirements

  • Income from a qualifying IP asset can qualify for preferential tax treatment based on a nexus ratio
  • Nexus ratio = Qualifying expenditures incurred by the taxpayer to develop the IP asset / Overall expenditures incurred by the taxpayer to develop the IP asset
  • This proportion of research and development (“R&D”) expenditures is a proxy for substantial economic activities.

Qualifying IP asset

  • Only covers (i) patents and (ii) other IP assets which are functionally equivalent to patents if those IP assets are both legally protected and subject to similar approval and registration processes (e.g. copyrighted software)
  • Marketing-related IP assets (e.g. trademark and copyright) are excluded from the preferential tax treatment

Qualifying expenditures

  • Only include R&D expenditures that are directly connected to the IP asset
  • Acquisition costs of the IP asset are excluded
  • Only cover expenditures on R&D activities (i) undertaken by the taxpayer within the jurisdiction providing the IP regime (“IP Regime Jurisdiction”); (ii) outsourced to unrelated parties to take place inside or outside the IP Regime Jurisdiction; and (iii) outsourced to resident related parties to take place within the IP regime jurisdiction

Taxpayers may be permitted to apply a 30% uplift on the qualifying expenditures, subject to a cap equal to the overall expenditures incurred by the taxpayer

Step 2

For dividends and disposal gains that are already deemed taxable, can the participation exemption requirements be fulfilled?

2a. If yes, the income can be exempt.

2b. If no, check if the income is qualified for foreign tax credit or unilateral tax credit (see Step 3 below).
N/A

Participation exemption

  • The income concerned will continue to be tax-exempt if:
  • (i) the investor company is a Hong Kong resident person (i.e. a company incorporated in Hong Kong, or if incorporated outside Hong Kong, normally managed or controlled in Hong Kong) or a non-Hong Kong resident person that has a permanent establishment in Hong Kong;
  • (ii) the investor company holds at least 5% of the shares or equity interest in the investee company; and
  • (iii) no more than 50% of the income derived by the investee company is passive income.
  • In terms of the requirement of “Hong Kong resident person”, it may not be necessary for companies to apply for a Hong Kong Tax Resident Certificate. The company should be able to fulfill this requirement by demonstrating control of the company in Hong Kong, having a majority of directors who are Hong Kong residents, conducting business activities in Hong Kong, having meetings in Hong Kong etc.

Anti-abuse rules

  • (i) Switch-over rule
  • If the income concerned or the profits of the investee company is or are subject to tax in a foreign jurisdiction the headline tax rate of which is below 15%, the tax relief available to the investor company will switch over from participation exemption to foreign tax credit.
  • (ii) Main purpose rule
  • If there is any arrangement or series of arrangements undertaken by the investor company with a main purpose (or one of the main purposes) of obtaining a tax advantage that defeats the object or purpose of the exemption, the participation exemption will not be available.
  • (iii) Anti-hybrid mismatch rule
  • Where the income concerned is dividends, the participation exemption will not apply to the extent that the dividend payment is deductible by the investee company.
 N/A

Step 3: double taxation relief – unilateral tax credit

For taxpayers who would suffer double taxation if they fail to get exemption under the refined FSIE regime, it is proposed that a unilateral tax credit will be provided to these taxpayers who paid tax in a jurisdiction which has not entered into a comprehensive avoidance of double taxation agreement with Hong Kong (“Non-CDTA Jurisdiction”).

The proposed unilateral tax credit will only be provided in respect of the In-scope Offshore Passive Income which is taxable under the refined FSIE regime. No such tax credit will be available for:

  • In-scope Offshore Passive Income which is exempt from profits tax under the refined FSIE regime;
  • Tax paid in a Non-CDTA Jurisdiction which relates to income other than the In-scope Offshore Passive Income; or
  • Tax paid in a jurisdiction that has a tax treaty with Hong Kong (in such case tax credit would be made available under the tax treaty).
3. Conclusion

The change in Hong Kong’s FSIE regime is happening soon (possibly on 1 January 2023 as aforementioned) for Hong Kong to keep up with the latest international tax standards. While we await the introduction of the amendment bill, it is advisable for businesses to keep an eye on the latest developments, review the corporate structure with reference to the information currently available and consult a tax adviser if in doubt.

If you have any question regarding the topic discussed above, please contact our partner Victor Ng at victor.ng@oln-law.com for further assistance.

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.