Wills, Probate, and Executors: What to do when a loved one passes away in Singapore
Did your loved one make a will?
If the deceased left behind a valid will, the will should normally specify a person to be appointed as the executor. The executor will carry out the instructions of the will-maker (i.e. the testator).
If the deceased died intestate (without a will), you would have to apply to court for Letters of Administration. This is so that you can be appointed by the court as an administrator to administer the distribution of the deceased’s estate. This administrator will usually be a next-of-kin of the deceased.
What does the executor of a will do? What is a Grant of Probate?
To execute a will, an executor will need to tender the relevant documents, including a certified copy of the specific will, to the court, to apply for a Grant of Probate. The Grant of Probate is a court order, authorising an executor to administer the deceased’s estate in accordance to the directions of the will.
Renouncing the right to apply for the Grant of Probate
It is possible for a named executor to expressly renounce his right to execute the will, by taking the steps described in section 3 of the Probate and Administration Act. Namely, ‘such renunciation may be made orally by the person renouncing or by his advocate and solicitor, on the hearing of any petition or probate action, or in writing signed by the person so renouncing and attested either by an advocate and solicitor or by any person before whom an affidavit may be sworn’.
Where to apply for the Grant of Probate
If the total value of the estate of the deceased person is below S$3 million, the application is made to the State Courts. If the total value of the estate of the deceased person exceeds S$3 million, the application has to be made to the High Court. Where the estate has less than $50,000 in value, you can apply for the Public Trustee’s Office to act for you.
How to apply for the Grant of Probate
Because of the complexity involved in terms of necessary documentation, it is advisable for the layperson to engage a lawyer to facilitate the application process (or the Public Trustee’s Office, if possible).
After the needed documents are filed in court, they will be reviewed. If everything is in order, the Application for the Grant of Probate will be granted.
Extracting the Grant of Probate
After the estate duty matters have been settled, and all relevant documents have been filed, the executor may apply to extract the grant. This is done by way of a request to extract the Grant of Probate. Before filing the request, he should conduct a search to ensure that there are no caveats in force against the estate.
Duties of the executor
The executor may be required to perform the following, depending on the contents of the will:
- Apply for probate;
- Extract the Grant of Probate;
- Make arrangements for the funeral of the deceased;
- Determine the total assets and liabilities of the deceased;
- Resolve the outstanding income tax liability of the deceased, according to section 58 of the Income Tax Act;
- Pursue any debts owed to the deceased;
- Resolve any debts or liabilities of the deceased. In the case of an insolvent estate, the order of priority in the repayment of debts can be found in the Bankruptcy Act, after fulfillment of the First Schedule of the Probate and Administration Act. In the case of a solvent estate, the order of repayment can be found in the Second Schedule of the Probate and Administration Act;
- Distribute the assets to the beneficiaries or their respective guardians, in accordance to the will.
Contentious Probate – Contesting a Will
A will can be contested by those who dispute its validity, and a court may declare it wholly or partially invalid. It is therefore important to ensure that the will complies with the provisions of the Wills Act. If a will is declared invalid, no will is left behind, and the deceased’s property may be distributed according to the rules of the Intestate Succession Act.
Any person who does not wish a grant to be issued to a particular executor or an administrator may file a caveat in court. The effect of the caveat is that the Registrar of the court is required to inform the person lodging the caveat, the caveator, in the event that an attempt is made to extract the grant of letters of representation.
Grounds to contest a will include specific allegations like the will not being properly executed, or that the testator was not of sound mind at the time of execution of the will and so forth. If the will is contested, the court will decide the matter in a probate proceeding.
Where there is no will: Letters of Administration
Where a person passes away without leaving behind a will, the next of kin can make a court application for the grant of Letters of Administration. These Letters of Administration serve as a court order authorising a person to be appointed as the administrator to administer the estate and distribute the assets in accordance to Singapore’s laws.
Who is the administrator?
Where no will is left behind, the court is empowered to appoint whoever it thinks ought to be granted the letters of administration. Such a grant can be made to any member of the classes of beneficiaries under the Intestate Succession Act. The Act sets out seven classes of persons who, in descending order of priority, are entitled to apply for a grant. They are:
- the spouse;
- the children of the deceased;
- the parents;
- brothers and sisters;
- nephews and nieces;
- grandparents; and
- uncles and aunts.
At least two administrators (or a trust corporation) must be appointed if one or more beneficiaries of the estate is below 21.
Bankrupts and infants cannot be appointed as administrators. Where a person entitled to a grant is an infant such a grant will be made to his guardian, or if he had attained the age of 16 years to any next of kin that the infant may nominate.
Renouncing the right to apply for Letters of Administration
A party with the priority in law to apply for Letters of Administration (for various reasons) may renounce his right to do so by filing a renunciation and consent form.
Do I need a lawyer?
Due to the multitude of supporting documents needed in a court application for a grant, it is certainly advisable that a lawyer is involved to handle the paperwork.
Where the estate comprises property with fluctuating value (e.g. shares and real estate), it may be prudent to apply for letters of administration as soon as possible to take advantage of price differentials. Where there is no will, the administrator has to distribute the estate in accordance with the Intestate Succession Act.
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