WILLS AND ESTATES
A person makes a Will to provide for the administration and distribution of what he owns ("his estate") among his beneficiaries after his death. This person is called "the testator". "Beneficiaries" are those who inherit or benefit under the Will. The "Executor" is the person nominated by the testator to administer and distribute his estate upon his death, if there is no separate person appointed to carry out this task. Usually, the same person is appointed as executor and trustee.
If there are beneficiaries who are minors (persons under the age of 21 years) named in your Will, it will be preferable to have at least two Executors/Trustees who would be able to hold any assets or invest or use any money for the benefit of the minors. In situations where no Will was made and there are beneficiaries who are minors, there should be two administrators and trustees.
HOW TO MAKE A WILL
If you are 21 years and of sound mind, you may make your own Will and change it at any time during your life without consulting a lawyer. However this may be ineffective or invalid, causing your beneficiaries to suffer unnecessary expense. It is therefore in your interest to consult a lawyer who can advise you and draft your Will for you according to law
However, if you are a soldier in actual military service (NSman), or a mariner or a seaman at sea, you may make a Will even though you are under 21 years.
WHAT SHOULD A WILL CONTAIN
You should state the person(s) or organisation(s) to whom you wish to give away your property and assets. For example, you may give away your house, car, shares, insurance policies, bank accounts, cash and jewellery to family members, friends or to charities.
Money in your Central Provident Fund (CPF)
If you have made a nomination under the CPF Act, your nominee shall be entitled to the funds in your CPF account regardless of what is stated in your Will. If you have not made a nomination, your funds will be distributed under the law in accordance with the Intestate Succession Act, as explained below in the paragraph If you do not make a Will.
If you get married after making a nomination, your nomination made before marriage is automatically cancelled, unless you say that it was made in contemplation of marriage. Therefore, you ought to make a new nomination after marrying.
The signing of your Will must be witnessed by two persons and they must both be present at the same time. Witnesses must not be beneficiaries under the Will. Neither can they be the husband or wife of any of the beneficiaries.
CHANGING YOUR WILL A will should never be changed crossing parts out or adding words in or by attaching anything to it. If you do so your Will may become ineffective or invalid. If you wish to change your Will, either make a fresh Will or prepare a Supplemental Will ("a Codicil").
REVIEWING YOUR WILL If you marry or remarry, your Will is nullified or cancelled unless the Will was made in contemplation of your marriage.
You should review your Will if any of the following happens: a
. if you change your name or anyone mentioned in the Will changes his name; b
. if an executor or trustee dies or becomes incapable of carrying out his duties owing to ill-health; c.
if a beneficiary dies; d
. if you subsequently sell or part with any property mentioned in the Will; e.
if there is any significant change in circumstances, for example, when you acquire property
or assets which have not been mentioned in your Will. It is advisable to review your Will regularly.
MAKING YOUR WILL KNOWN
Although a Will is a private document, it is important that your family and especially your executors know that you have a Will and where you have kept it. If you wish, your lawyer will look after it for you. You should then give your executors your lawyer's name and address.
ADMINISTERING YOUR ESTATE
Your Will takes effect upon your death. Your executors would have to apply to Court for a Grant of Probate. The Court will only issue the Grant after the Estate Duty Officer has certified the following: a. the value of your estate; and b. i the amount of estate duty payable and the fact that it has been paid; or ii that no estate duty is payable.
However, the executors have the power by virtue of your Will to act even before the Grant is issued. For example, your executors may pay or release debts and transfer property or assets. But it is necessary to obtain the approval of the Commissioner for Estate Duty when dealing with landed property or major assets. In this case, it is also necessary to get a copy of the Grant of Probate.
Once the Grant of Probate is issued, the Will becomes a public document. The original Will is retained by the Court. The executors will be given a copy of the Will together with the Grant. All your property and assets will then pass to your executors, who will have the responsibility of administering and distributing the estate according to the instructions in your Will.
IN CASE A WILL IS NOT MADE
If you do not make a Will If you pass away without making a Will, your assets will be distributed according to the rules of intestacy as laid down in the Intestate Succession Act. Your lawyer can advise you about these rules and how they apply to you. If you die without making a Will, your estate may be distributed to persons to whom you do not intend to give anything.
Also, you cannot choose the people who will look after your estate. They are called "administrators" instead of executors although they will have the same responsibilities. They have to apply to Court for "Letters of Administration" instead of the Grant of Probate and the procedure is generally more complicated. For example, the administrators will have to provide two guarantors unless they get approval from the Court not to have such guarantors.
Therefore, if you want to provide especially for your family members, friends or a charity after your death, you should consider making a Will as it will be easier and more convenient.
SYARIAH LAW/MUSLIM LAW
Some of the points mentioned above do not apply to Muslims. Under section 115(1) of the Administration of Muslim Law Act
, the beneficiaries must apply to the President of the Syariah Court for an Inheritance Certificate to establish the share of each beneficiary. Muslims can only dispose off or give away 1/3 of their estate to persons who are not already entitled under the Inheritance Certificate mentioned above.
PROBATE & LETTERS OF ADMINISTRATION
A probate is a Court Order authorising the executor(s) appointed by the deceased person under his Will to administer his estate according to the directions contained in his Will. Letters of Administration It is a court order authorising the person(s) named in it to administer the estate of the deceased person in accordance with the law.
When a person dies somebody has to be appointed by the Court to take charge of the deceased person's property (collectively known as his estate). If the deceased person has made a Will, he would have appointed a person(s) called an executor(s) to take charge of his estate. If the deceased person died without having made a Will, a person would normally have to be appointed as an administrator(s) to take charge of the estate.
In order to be recognised legally as the executor(s) or administrator(s) of the deceased person's estate, you would have to apply for Probate or Letters of Administration respectively.
WHO CAN APPLY
You can apply for probate if you are the executor(s) named in the Will of the deceased person. In the case of the Letters of Administration, you and any of your family members are entitled to apply to be appointed administrator(s). However, the law gives priority to certain members of the family over others, depending on the marital status of the deceased and his family composition. For example, if the deceased person was single, his surviving parents will have priority over his brothers and sisters to be the administrators; if the deceased person was married with children, his spouse will have priority over the children to be his administrator.
The law requires at least 2 administrators to be appointed where there is/are one or more minor beneficiaries. A minor beneficiary is any person below 21 years of age who has a share in the estate. This is to protect the minor beneficiary's interest in the estate.
If you are the named executor(s) in the Will, or if you are a party having priority in law to apply for Letters of Administration and you are unwilling or unable to apply for Probate or Letters of Administration, you may give up (renounce) your rights and consent to other persons applying for Probate or Letters of Administration by filing a Renunciation and Consent.
WHERE AND HOW TO APPLY
If the value of the estate of the deceased is below S$3 million, the application is made in the Subordinate Courts. If the value of the estate of the deceased exceeds S$3 million, the application is made in the Supreme Court. To apply for Probate or Letters of Administration, a number of documents have to be prepared and filed (after payment of stamp fees) at the Probate/Letters of Administration Counter in the Civil Registry.
Documents required for both probate and letters of administration
- The Petition
- The Administration Oath(s) by the Petitioner(s)
- The original extract of the deceased's Death Certificate
- Original inheritance Certificate from the Syariah Court (for Muslim estates only)
- Caveat Search Certificate
- The original Will,
- Two A4 sized certified true copies and
- One A3 sized uncertified copy of the Will.
Where the Will is not written in English, a certified true translation by a person competent to translate must be attached.
Renunciation(s) by a person(s) appointed executor(s) by the Will but who does not wish to be the executor(s) if any.
Letters of Administration
Consent of the co-administrator, if any.
Renunciation of the beneficiaries having a prior right to apply for letters of administration if any.
The above requirements apply in cases of simple petitions for Probate and Letters of Administration. Much depends on the status of the deceased, his beneficiaries and the estate.
PROCEDURE ON FILING
After the Petition has been filed in Court, a Registrar will review it. If the Registrar is satisfied that all the documents are in order, the Petition for Probation or Letters of Administration will be granted.
If there are errors or omissions in the documents, the Petition may be rejected outright, returned to you for amendment or it may be fixed for hearing before a Deputy Registrar in Chambers.
STEPS TO BE TAKEN ONCE PETITION GRANTED
After the Registrar grants the Petition, you (the petitioner) should:
- settle estate duty matters
in the case of Letters of Administration, execute an Administration Bond with 2 sureties, if any, to apply to extract the grant
Before the grant can be extracted, estate duty matters must first be settled.
If your estate is non-dutiable, you should file Forms SC direct to the Court.
If your estate is dutiable, you should file an Estate Duty Return Form ED to the Estate Duty Department.
The Commissioner for Estate Duties will assess the value of the estate and inform you whether estate duty is payable on the estate. The Commissioner for Estate Duties will than forward the Schedule of Assets to the Court for the grant of Probate or Letters of Administration to be extracted by you.
The grant can only be extracted when the Commissioner for Estate Duties has certified that no estate duty is payable, or that it has been paid, or that he has consented to the postponement of the payment of estate duty.
All the relevant forms can be downloaded from IRAS website http://www.iras.gov.sg
EXECUTING AN ADMINISTRATION FORM
In the case of Letters of Administration, you have to file an Administration Bond to extract the grant. The Bond has to be signed by you and your sureties, if any.
Where any beneficiary is under 21 years of age, or the value of the estate exceeds S$250,000 you are required to furnish 2 sureties to the Administration Bond. This is to ensure that you administer the estate properly. The sureties must have assets worth the total value of the deceased's estate.
After the Registrar approves the particulars of the sureties, they have to affirm or swear an affidavit certifying their worth. If you cannot get any person to stand as surety, you may apply to the Court to dispense with the sureties. You will have to affirm or swear an affidavit setting out the reasons for your application. You will also have to obtain the consent of all adult beneficiaries and creditors to the dispensation of sureties. The Court has the discretion to dispense with one or both sureties.
EXTRACT THE GRANT
After the estate duty matters have been settled, you may apply to extract the grant. This is done by way of a praecipe and filing of the Administration Bond (if any). Before filling the praecipe, you should conduct a search on the probate caveat book to ensure that there are no caveats in force against the estate.