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Oldham, Li & Nie Has Once Again Been Recognised as a Caring Company

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We are pleased to be once again recognised by the Hong Kong Council of Social Service (HKCSS) as a Caring Company. The award is a recognition of OLN’s commitment in Caring for the Community, Caring for its Employees and Caring for the Environment.

Caring Company Oldham, Li & Nie

Some of our initiatives in 2022:

  • During the most challenging months of Covid-19 pandemic in Hong Kong, we launched our 3rd “Free Will Campaign”, we drafted a free Will to everybody who donate a small amount of money to our partner charity – Helping Hand, an NGO dedicated to serving the elderly in Hong Kong. 100% of funds went towards providing food and other essentials to help the elderly affected by the Covid-19 crisis.
  • In October, we held a “Dress Pink Day” to show our support to our colleagues, friends, mothers, wives, sisters and daughters who have battled breast cancer. The staff and the firm made donations to the Hong Kong Cancer Fund, their donations went to preventing and curing breast cancer through research, patient support, education and advocacy.
  • As part of our GO GREEN effort, we digitalized our engagement letters, switched to “e-sign” procedures and “think before you print” mentality.
About the Caring Company Scheme

The Caring Company Scheme was launched by The Hong Kong Council of Social Service (HKCSS) in 2002 with the purpose to foster strategic partnerships among business and social services partners and inspire corporate social responsibility through caring for the community, employees and the environment.

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

OLN獲新發佈的《亞洲法律概況2022/23年度排名》高度推薦

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我們很高興地宣布，高李嚴律師行再次獲得《亞洲法律》的高度推薦。

《亞洲法律概況2022/23》認可本行在以下業務領域的專業知識：

  • 爭議解決 – 高度推薦
  • 企業併購 – 推薦
  • 知識產權 – 推薦
  • 勞工及僱傭 – 推薦
  • 私人客戶 – 推薦
  • 重組與破產 – 值得關注

高李嚴律師行還於以下行業被推薦：

  • 保險 – 推薦
  • 消費品及服務 – 值得關注
  • 科技及通訊 – 值得關注

《亞洲法律》亦認可本行的合夥人在各自的業務領域中獲得排名:

  • 高國峻 被公認為爭議解決方面的業界資深律師
  • 李卓賢 被公認為爭議解決方面的卓越律師
  • 葉琳寶 被公認為公司企業和商業法方面的卓越律師
  • 宋靜妍 被公認為知識產權方面的卓越律師
asialaw Profiles 2023

關於《亞洲法律》

《亞洲法律概況》是唯一一份全面分析亞洲地區和國內律師事務所以及該地區頂尖律師的法律名錄。

概況於每年 9 月在線上發佈，而今年的排名為23 個司法管轄區（從孟加拉到越南）以及 28 個行業和業務領域提供律師事務所和律師推薦。

The Succession of Digital Assets: NFTs, Cryptocurrency or Online Accounts

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There has been an increase of wealth distributed in various forms of digital assets or platforms.  For example, NFTs, cryptocurrencies such as Bitcoin or Ethereum or even online social media or gaming accounts may have substantial value in them. Investment is no longer restricted to its traditional forms, leading to the emergence of many alternative assets investments, most of which are done on an anonymous basis.

To consider how to plan the succession of digital assets, it would be useful to distinguish between digital assets that are transferable and those that are non-transferable.

Transferable Digital Assets

Transferable digital assets include cryptocurrency, NFTs, funds kept in online accounts such as Alipay or WeChat pay.  These can generally be passed down by including provisions in a will. Most countries may treat them the same as any traditional assets (such as bank accounts or real estate property) and require a form of grant of representation to access the digital assets. 

Some companies may even provide the feature on their software platform whereby the user can designate an individual as an emergency contact to receive the data in the user’s account under conditions specified by the user, such as upon the user’s death or incapacity. This feature would potentially allow an executor or trustee nominated in the user’s will (if there is one) to gain access to valuable personal, financial and business information after the user’s death even before presenting an authenticated grant of probate to the company, as well as to act on such information for the benefit of the user’s next generation pursuant to the will.  For example, Apple has a policy known as Legacy Contacts where the person who is set as a Legacy Contact can access photos, messages, notes (but not passwords, music, subscriptions, etc.) with just the access key generated when the Legacy Contact was set and the death certificate.

Given the popularity of digital assets, popular trading platforms for cryptocurrency and other digital assets already have some form of structured policy for dealing with account holders who have passed away.  Some trading platforms have adopted the traditional requirements of dealing with any other physical asset, i.e. requiring beneficiaries to provide the grant of representation, death certificate and other supporting documents to allow access into the deceased person’s account, whilst other platforms give their users options to complete their know-your-client procedure which allows the platform to identify the person using the account, and therefore assist beneficiaries in accessing such accounts.

However, as currently there is no uniform standard on how to pass on digital assets, the best and simplest method is to make sure your beneficiaries are able to find out not only what digital assets you own.  Importantly, and due to the highly secured and encrypted nature of digital assets such that a form of password or key is required to access the assets, it may be important to store such passwords in a safe place but also make your beneficiaries aware of how to access such passwords and keys.

Non-transferable Digital Assets

Non-transferable digital assets are usually digital assets that are licensed for personal use, but not owned in a legal sense.  These include email accounts, social media handles and accounts or mobile app accounts and information contained therein. These generally cannot be passed down simply by a will and may require non-conventional estate plans.

Despite the personal nature of these non-transferable Digital Assets preventing them from being passed down, it is possible to preserve these in accordance with the wishes of the deceased person.  For example, Instagram offers a service known as “memorialising” the deceased person’s account, which allows the memorialized account to be kept as if it was frozen in time.  Facebook offers a further service that allows the person to designate a legacy contact to manage the memorialized account to a certain extent (such as writing a pinned post to share a final message or to update the profile picture, but not allowing removing or changing past posts etc.).  YouTube also provides an estate planning service known as Inactive Account Manager, which allows the person to designate who should have access to the information or whether the account should be deleted.  Otherwise, individuals may need to go through hoops of customer service and in the end not even be able to access any personal or important information.

Inheritance tax considerations

Digital assets (in particular cryptocurrencies) can fluctuate in value rapidly.  In Hong Kong, where estate duty has been abolished, this generally does not create any concern.  However, digital assets may also be based in other jurisdictions that impose inheritance tax, and therefore the applicable jurisdiction of the digital asset or the company through which the digital assets are held before investing in such should be given consideration and taken into account when conducting estate planning.

Conclusion

With diversified forms of valuable assets and technological advancements offering new solutions to asset succession and security, individuals face more considerations than ever in wealth protection and succession.  It is highly recommended that a legal framework should be carefully planned to ensure their wealth can be preserved free from unwanted interference.

Disclaimer: This article is for reference only.  Nothing herein shall be construed as legal advice, whether generally or for any specific 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.