No Executor For Your Loved One’s Will: What to Do

When a will is made, an executor is usually appointed in the will to administer the assets and carry out the wishes of the deceased. However, what do you do if your loved one has passed on without appointing an executor in their will? This article will explain:

• The role of an executor
• How will you know whether an executor(s) has been appointed in the will?
• How your loved one’s will is to be administered in the absence of an executor

The Role of an Executor

The executor is responsible for administering the assets of the deceased according to the instructions in the deceased’s will. More than one executor may be appointed in the will. Some duties of the executor include:

• Applying for a Grant of Probate (which allows the executor to carry out the instructions in the will)
• Distributing the deceased’s assets according to his or her will
• Paying off the deceased’s outstanding debts and expenses

How Will You Know Whether an Executor(s) has been Appointed in the Will?

Since the executor is appointed by the maker of the will, the appointment of the executor will usually be outlined in the deceased’s will. The executor should be clearly identified, and it is good practice to include his/her NRIC number and address. For instance, there may be a clause in the will that states:

“I appoint my sister, Sarah Chan (NRIC No., Address) to be executrix of this will.”

Upon the deceased’s passing, the deceased’s lawyer will inform the executor that he/she has been appointed as executor by the deceased. In some cases, the executor may already know that they have been appointed as executor. This is because the deceased may have checked with the executor beforehand if he/she consents to be appointed as executor.

In some cases, the will might not explicitly identify the executor by name. Even so, if it is reasonably clear who the executor should be, the appointment of executor might still be valid. For instance, if the deceased has only one sister and the will states that the deceased appoints his sister as executor, this appointment may still be accepted by the court.

Circumstances in which There is No Executor for Your Loved One’s Will

There may be a few circumstances in which there is no executor appointed to administer your loved one’s will. For example:

1. There may not have been any executor appointed in the will
2. The executor may have died before he or she is able to carry out the instructions in the will
3. The appointed executor may not be willing to carry out their duties as executor

The following sections will discuss how your loved one’s will is to be administered in these circumstances.

1. No executor has been appointed in the will

Apply for a Grant of Letters of Administration with Will Annexed

If there is no executor appointed in the will, and you wish to administer your loved one’s assets, you must first apply to the court for a Grant of Letters of Administration with the will annexed.

The court will grant the Grant of Letters of Administration to the person(s) that the court considers fittest to administer the estate. This person(s) is usually the deceased’s spouse or next-of-kin.

In this regard, there are several classes of people with prior rights to the Grant of Letter of Administration. This means that they will have priority in obtaining the Grant of Letters of Administration. A prior right to the Grant of Letters of Administration belongs to the following persons in the following order:

1. A universal or residuary legatee, i.e. the person in the will entitled to receive all, or the remaining of,  the deceased’s property;
2. (If the universal or residuary legatee is deceased) A legal personal representative of the deceased universal or residuary legatee;
3. Such person(s), being beneficiaries under the will, as would have been entitled to a Grant of Letters of Administration if the deceased had died without a will)
4. A legatee having a beneficial interest
5. A creditor of the deceased.

If you are successful in your application, you will be appointed as the administrator of your loved one’s estate. The role of the administrator is to administer the distribution of the deceased’s assets, and is usually a next-of-kin of the deceased.

While the duties of an administrator are similar to that of an executor, the key difference is that the executor is appointed by the deceased while an administrator is not.

If you have a lower priority in obtaining the Grant of Letters of Administration, you may consider applying jointly with other persons with a higher prior right to the Grant of Letters of Administration, or apply after the renunciation of the person with higher priority (i.e after the person steps down from his/her position as an administrator).

Apply to have the Public Trustee administer the estate

Alternatively, it may be possible to have the Public Trustee administer the estate.

The Public Trustee is a government body that can act as trustee of the deceased’s estate. It is able to administer assets such as the deceased’s money in banks, shares listed on the Singapore Exchange and items in his/her safe deposit box.

However, the Public Trustee cannot act if:

• The value of the estate exceeds $50,000;
• A court application for a Grant of Letters of Administration or Grant of Probate has been filed;
• There are conflicting claims to the estate or disputes among the beneficiaries;
• The deceased had shares or other interests in foreign or local unlisted companies;
• The deceased was a partner, sole proprietor or had an interest in a firm or other business;
• The deceased was the sole owner of an HDB flat and a child is eligible to inherit the whole or part of the flat;
• There are pending lawsuits that involve the deceased;
• There are insurance policies where one or more people have been nominated as beneficiaries;
• There are trust bank accounts opened with a child; and
• There are commercial vehicles involved such as taxis.

In these cases, you have to apply to the court for a Grant of Letters of Administration with will annexed to deal with the deceased’s estate.

It is also important to note that the distribution of the deceased’s assets will follow the order stated in the Intestate Succession Act if the Public Trustee administers the deceased’s assets.

For instance, the Intestate Succession Act states that if the deceased dies only leaving a spouse and no parents or children, then the whole share of his estate will go to his spouse.

The order of distribution dictated by the Intestate Succession Act may not be in line with what the deceased has provided for in his or her will. Hence, if you wish to uphold the wishes of the deceased, it may be preferable to apply for a Grant of Letters of Administration with the will annexed.

2. Executor dies before they are able to carry out the instructions in the will

In some cases, the executor may pass away after applying for a Grant of Probate but before they are able to carry out the instructions in the will. What can happen next will depend on whether there are surviving executors to carry out the wishes of the deceased.

Apply for a Grant of Letters of Administration with Will Annexed

If there are no surviving executors, those who wish to administer the estate will have to apply for a Grant of Letters of Administration with the will annexed. This is even though the executor had already applied for a Grant of Probate.

The court will then grant the Grant of Letters of Administration to the person that it thinks fittest to administer the estate (as explained above).

If there are surviving executors or administrators

On the other hand, if there are surviving executors, the administration of the estate then falls on the surviving executor(s) based on the existing Grant of Probate obtained.

Apply to have the Public Trustee administer the estate

If the deceased executor has already applied for a Grant of Probate, the Public Trustee cannot administer your loved one’s estate. Those who wish to administer the estate may have to apply for a Grant of Letters of Administration with the will annexed if there are no other surviving executor(s).

3. There is only one available executor and they are not willing to carry out their duties

At times, the only available executor may not be willing to carry out his/her duties and renounces his/her executorship.

In these circumstances, it might be possible to apply for a Grant of Letters of Administration with the will annexed or to the Public Trustee to administer the deceased’s estate.

Apply for a Grant of Letters of Administration with Will Annexed

Similar to what was mentioned above, you can apply for a Grant of Letters of Administration with the will annexed. The court will grant the Grant of Letters of Administration to the person that it thinks fittest to administer the estate.

Apply to have the Public Trustee administer the estate

It may also be possible to apply to have the Public Trustee administer the estate, since the named executor would not have applied for a Grant of Probate.

The Public Trustee will administer the deceased’s assets in accordance with the Intestate Succession Act as mentioned above.

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The appointment of an executor is an important decision to make when drafting one’s will. However, even if there is no executor available to administer your loved one’s will, you can still take steps to ensure that your loved one’s will is administered according to his/her wishes.

You may also consider consulting a probate lawyer who has the expertise in dealing with such matters to advise you on the steps to apply for a Grant of Letters of Administration with the will annexed, or how to apply to the Public Trustee to administer your loved one’s estate, if you need further assistance.