A common question that arises when a loved one passes away is whether a probate lawyer needs to be appointed for the probate process. Generally, due to the vast nature of documentation required to commence the probate process, it is advisable that a competent probate lawyer be appointed to assist the executor or administrator. 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.
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.
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 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. Does the probate process in the relevant jurisdiction consist of simple procedures?
While the probate process is relatively straightforward in a civil process, where a Muslim deceased’s estate is concerned, this will fall under the Administration of Muslim Law Act. Different procedures and laws govern the administration of a Muslim decedent’s estate and affairs, and it may be necessary for a probate lawyer with knowledge of Muslim succession laws to assist the family concerned in the estate administration process.
3. Does the estate contain only common assets, for example, a local bank account?
It is also important to note that if the decedent had invested personal wealth across different jurisdictions while he or she was alive, there is a need to account for different tax regimes that may apply in different countries. These can include succession tax, capital transfer tax or inheritance tax.
A probate lawyer with the relevant expertise or knowledge in the laws or tax regimes applicable for that country will be necessary to assist the executor or administrator in the administration of the estate in these circumstances.
4. Is there sufficient money in the estate to pay any debts that may be due and owing by the deceased?
In the event there are debts due and owing, there are laws and regulations governing the priority of creditors who have to be paid. A lay executor or administrator may not be acquainted with these regulations and so would be best advised to seek the advice and assistance of a competent probate lawyer in these circumstances.
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. For example, when applying for a grant of probate, you will first need to make the application by way of an originating summons no more than 6 months after the death of your loved one. This originating summons must be filed together with other supporting documents, such as the certified true copy of the will and death certificate, administration oath, and a Statement in accordance with the relevant Form of the Rules of Court. After these documents have been filed, an affidavit verifying the information provided in the Statement must subsequently be filed in court within 14 days. These documents have to comply with the legal filing requirements and court document templates, or they can be rejected by the court. Hence, the process can be tedious for individuals who may not be familiar with the legal and administrative requirements.
Individuals can find it overwhelming, whether as an executor or administrator, to oversee the probate process alongside work and personal commitments. Hence, this is a crucial factor to consider in determining whether or not you wish to appoint a probate lawyer to assist you in the process.
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.
Given the potential complexities that may arise during and even before the commencement of the probate process, you are advised to consult a legal professional to avoid delays in the probate process.
For more information on probate and inheritance laws and procedures in Singapore, please refer to our Learning Centre page on Inheritance.