A common question that arises when a loved one passes away is whether a probate lawyer needs to be appointed for the probate process. While many executors and administrators choose to engage a probate lawyer, particularly where the estate is complex, it is not mandatory to do so. Eligible individuals may apply for a Grant of Probate themselves through the Family Justice Courts, including through the Probate eService in certain cases. However, legal assistance may be beneficial where there are disputes, overseas assets, business interests, substantial debts or other complexities.
In this article, we will outline some of the situations where a probate lawyer may be necessary, as well as the situations where the Public Trustee can undertake a summary administration of the estate instead.
What is a probate lawyer?
A probate lawyer is a qualified lawyer who specialises in probate law. Probate lawyers typically assist the executor (if there is a will), or administrator (if there is no will), in the legal process of administering the estate of the decedent. This involves resolving any legal claims, as well as distributing the property and assets in accordance with the will, or the intestacy laws if there is no will.
In Singapore, probate matters are handled by the Family Justice Courts. Generally, estates valued at up to S$5 million are dealt with in the Family Courts, while estates exceeding S$5 million fall within the Family Division of the High Court.
When would a probate lawyer be necessary?
It is not always the case that a probate lawyer needs to be appointed to handle the probate process. Some individuals proceed with the administration of the decedent’s estate without the assistance of a probate lawyer once they have applied for the Grant of Probate or Letter of Administration. This is sometimes done when the value of the deceased’s estate is relatively small and uncomplicated – for example, where there is no property, no insurance policies, no company shares and no overseas assets.
Individuals are typically advised to seek the help of a probate lawyer to ensure that the relevant documents are in order. This enables the court to grant the legal rights to the executor or administrator without delay.
Do also note that before applying for probate, it is important to determine which assets actually form part of the estate. Certain assets may pass outside the probate process, such as CPF monies distributed through CPF nominations, some jointly owned assets that pass by survivorship, and certain insurance policies with valid nominations. Whether probate is required will depend on the nature of the asset and the circumstances involved.
Here are 5 questions to help you determine whether you need a probate lawyer. It is not exhaustive, but highlights some of the more common complexities that may arise during the probate process:
1. Is it likely that the will (if any) may be contested by the family members?
For example, allegations of undue influence, duress or testamentary incapacity (i.e. a person’s legal and mental ability to make or amend a valid will) may be made by a family member who is disputing the validity of the will of the deceased. These disputes have been brought to court in numerous instances, and would inevitably require the appointment of a competent probate lawyer to assist the family concerned, in the event of a trial.
2. Is the deceased a Muslim?
While the probate process is relatively straightforward in a civil process, the estate of a Muslim deceased is subject to the Administration of Muslim Law Act (AMLA), and distribution issues may require compliance with Muslim inheritance principles (faraid). Executors and administrators may therefore benefit from obtaining legal advice where Muslim succession issues arise.
3. Did the deceased have any assets located overseas?
If the deceased owned assets or investments in other countries, the executor or administrator may need to deal with different laws and taxes that apply in those countries. For example, some countries impose inheritance or estate taxes when assets are transferred after a person’s death.
In such situations, it may be helpful to engage a probate lawyer who is familiar with the relevant foreign laws and procedures. The lawyer can assist with administering the overseas assets and help ensure that any legal or tax requirements are properly addressed.
In addition to overseas property and bank accounts, executors should also identify digital assets such as online investment accounts, cryptocurrency holdings, online payment accounts and cloud-based financial records. Locating and dealing with such assets can increase the complexity of estate administration, which may require legal advice.
4. Did the deceased have any outstanding debts?
If the deceased left behind outstanding debts, the executor or administrator will need to ensure that these debts are properly dealt with before distributing the estate to the beneficiaries. This can be complicated, as there are legal rules on which debts should be paid first and how the estate should be administered.
In such situations, it may be helpful to seek advice from a probate lawyer. A lawyer can guide the executor or administrator through the process and help ensure that the estate is administered in accordance with the law.
5. Do you have the time to make the necessary applications and go through the probate process in its entirety?
While an application for a Grant of Probate or Letter of Administration can be done by an individual without the assistance of a lawyer, it can be a very time-consuming process. Probate applications should generally be filed within 6 months of the deceased’s death. If the application is filed after 6 months, the applicant will generally need to explain the reason for the delay in the application.
Although individuals may apply for a Grant of Probate or Letters of Administration without engaging a lawyer, the application process involves preparing and filing various court documents and complying with procedural requirements. Depending on the circumstances, these may include an Originating Application, Supporting Affidavit, Schedule of Assets and other supporting documents. Errors in the documents or supporting information can be rejected, which may result in delays or requisitions from the court, which is why some executors and administrators prefer to engage a probate lawyer.
The Family Justice Courts also provide a Probate eService for eligible applicants. In some straightforward cases, a sole executor may be eligible to use the Probate eService provided by the Family Justice Courts. The eService helps users prepare and submit the necessary probate documents online. Eligibility requirements apply, and more complex estates may still require court filings through the usual process or legal assistance.
The Role of the Public Trustee
The Public Trustee can conduct a summary administration of the estates of deceased persons for an affordable fee where the value of the estate does not exceed S$50,000. Apart from the administration of small estates valued at no more than S$50,000, the Public Trustee is also not permitted to act under the following situations, where:
- a court application for Letters of Administration or Grant of Probate has been filed;
- there are conflicting claims to the estate or disputes among beneficiaries;
- the estate has outstanding debts or liabilities;
- the deceased was a partner, a sole proprietor or had an interest in a firm or other business;
- the deceased was the sole owner of a HDB flat and a child is eligible to inherit the whole or part of the flat;
- there are pending lawsuits which involve the deceased;
- there are insurance policies taken out by the deceased where one or more people have been nominated as beneficiaries;
- there are trust bank accounts opened with a child; and
- there are commercial vehicles that are part of the estate, such as taxis.
In these circumstances, the individual is advised to apply to court for Letters of Administration to deal with the decedent’s estate.
An application to the Public Trustee to administer a deceased’s estate can be done online and is a relatively simple process. In the case of the distribution of the estate of a Muslim decedent, the estate will be distributed in accordance with the relevant provisions under the Administration of Muslim Law Act.
Whether a probate lawyer is necessary will depend on the nature of the estate and the executor’s familiarity with the probate process. For straightforward estates, some individuals may choose to apply for probate themselves, including through the Probate eService where eligible. However, legal advice from an experienced probate lawyer is often beneficial where there are disputes, overseas assets, business interests, Muslim inheritance issues, substantial debts or uncertainty regarding the administration of the estate
For more information on probate and inheritance laws and procedures in Singapore, please refer to our Learning Centre page on Inheritance.
