Grant of Probate | IRB Law LLP

Grant of Probate | IRB Law LLP

Introduction

After the passing away of a loved one, their estate has to be managed and distributed to the beneficiaries. The people who are entitled to receive part of the deceased’s estate are easily recognized if the deceased has left behind a Will. The Will would generally mention who the executor will be and the name of the people who will receive shares of the deceased’s estate. But, contrary to the misconception, a Will is not enough for an executor to manage the deceased’s estate.

Need for a Grant of Probate

A Grant of Probate is an order passed by the Court which authorizes the executors and trustee(s), if applicable, to manage and distribute the estate of the deceased to the beneficiaries named in his Will. Generally, a Grant of Probate is essential for an executor to distribute the assets of the deceased as, without a Grant of Probate, the financial institutions would not release any monetary funds to the executor for distribution. This order of the Court is necessary where the value of the estate of the deceased exceeds $50,000 and there are no liabilities or outstanding debts. If it does not exceed the said amount, one can apply for a Public Trustee to administer the estate rather than applying for a Grant of Probate.

Where to File the Application?

The Application should be filed in the Family Justice Courts if a Grant of Probate is required and the total value of the estate does not exceed $3 million. However, if the total value of the deceased’s estate exceeds $3 million, the application for a Grant of Probate should be made before the Family Division of the High Court.

Who can make the Application?

The application for a Grant of Probate can only be made by the executor(s) named in the Will of the deceased. Generally, executors are the trusted friends or immediate family members of the deceased. However certain requirements have to be fulfilled for a person to be named as an executor. They are:

1) Should be 21 years old and/or above
2) Must be of sound mind
3) Must not be bankrupt at the time of application for a Grant of Probate

Time Required for Obtaining a Grant of Probate

In the case where the application for a Grant of Probate is non-contentious, it would usually take 2 to 6 months to obtain the legal document from the date of applying. It might take much longer if the application is contentious and complex, for example, if part of the assets of the deceased has not been located or identified. Hiring a lawyer is always advisable to aid a person to obtain a Grant of Probate.

Procedure for Obtaining a Grant of Probate

A) Step 1: Preparation of the required documents

The first step is to complete all the forms required for the application available on the Family Justice Court’s website and prepare the original and certified true copy of the required documents.

i) Application for Probate: Without a lawyer, one will need to complete the form by the LawNet & CrimsonLogic Service Bureau, providing which the Bureau will generate an Originating Summons and Statement for Probate.

ii) Ex Parte Originating Summons: Form 48 in Appendix A of the Family Justice Courts Practice Directions (FJCPD) has to be used to fill the Originating Summons essentially stating that no other party is involved in the application. The details of the deceased and the applicant along with the order requested are required in this form.

iii) Report of Caveat and Probate Application Search: This is filed to indicate that a search for caveat and probate application has been conducted and that no such application or caveat has been found. Form 52 of the FJCPD is used for this and has to be attached with the Originating Summons.

iv) Statement for Probate: The details regarding the deceased, the applicant, and the deceased’s estate have to be provided in this form. This is available in Form 51 of the FJCPD. Information such as the estimated value of the deceased’s estate, confirmation of the applicant being named as an executor in the Will, reasons for delay if the application is not filed within 6 months from the death of the deceased, etc has to be filled in this form.

v) Certified True Copy of the Death Certificate: This has to be submitted so that the Court can verify if the estate’s owner has been legally certified as deceased. In the case where a Death Certificate cannot be produced, a search for a Death Record can be carried out using the online extracts portal of the Immigration and Checkpoint Authority.

vi) Certified True Copy of the Will: After filing the Certified True Copy, the original Will must be submitted to the Probate Counter at the Family Justice Courts on the next working day by 4:30 pm. It must be ensured that the Will is in the English language.

vii) Renunciation of Other Executors Forms: If applicable, this form must also be submitted indicating that other executors have given up the right to administer and distribute the deceased’s estate.

viii) Certified True Copy of the Death Certificate of Other Executors (if applicable).

ix) Certified True Copy of Inheritance Certificate (if applicable).

B) Step 2: Submitting the Application

Submission of the required documents mentioned above is the next step. Without a lawyer, the application has to be submitted at the counters of the LawNet & CrimsonLogic Service Bureau. However, if a lawyer has been hired, the application needs to be filed in the e-Litigation portal electronically.

C) Step 3: Submission of Administration Oath and Supporting Affidavit

The requirements governing the Administration Oath are mentioned under section 28 of the Probate and Administration Act. According to Form 54 of FJCPD, one will have to prepare the Administration Oath essentially stating that the applicant will distribute the assets of the deceased according to his last Will. The Supporting Affivadit will state that the information submitted is correct and will have to be filled according to Form 225 in Appendix A of the FJCPD. The deadline must be followed to submit these two documents and both the documents have to be signed in the presence of a Commissioner for Oaths.

D) Step 4: Court Hearing

After the submission of the application and the Administration Oath, a hearing will be scheduled by the Court. This probate hearing must be attended. If the Supporting Affidavit and the Schedule of Assets have also been submitted along with the other documents and have been accepted by the Court, the hearing may be vacated.

E) Step 5: Filing Schedule of Assets and Supplementary Affidavit

If the Schedule of Assets stating the full extent of the assets of the deceased along with any outstanding debts secured in Singapore by a mortgage has not been submitted earlier in the application process, then the Court will grant an Order-in-Terms based on the Supporting Affidavit. One will then need to write to the relevant financial institutions requesting the information about the deceased’s assets. After hearing back from them, the Schedule of Assets will have to be filled and submitted along with a Supplementary Affidavit that has to be signed in the presence of a Commissioner for Oaths.

F) Step 6: Extraction of the Grant

After the Schedule of Assets and the Supplementary Affidavit have been submitted and accepted by the Court, and further confirmation has been given that no other documents are required, then one can apply for the extraction of a Grant of Probate. One final Caveat and Probate Application Search has to be conducted and the search report has to be attached along with the application. After satisfaction, the Court will issue a Grant of Probate and with that the executor or trustee(s), if applicable, can start managing and distributing the estate of the deceased to the beneficiaries according to the Will.

Obligations of an Executor

The executor essentially must manage and distribute the estate of the deceased according to his Will. Some of the obligations of an executor are:

1) To apply and extract a Grant of Probate.
2) To arrange the funeral for the deceased as per instructions in his Will.
3) To list the full extent of the deceased’s assets.
4) To pay off the liabilities of the deceased like outstanding taxes, loans, and/or debts.
5) To distribute the balance of the deceased’s estate to the beneficiaries as per instructions in his Will.

Complications during Probate Application

1) The original copy of the Will has been lost.
2) The Will is not dated.
3) The Will is signed in Chinese or with a thumbprint.
4) The sole executor refuses to apply for a Grant of Probate.
5) A subsequent Will dated later than the Will in the application has been discovered.
This list is not exhaustive and other complications may also arise during the application procedure for a Grant of Probate. Hiring a lawyer is always advisable for this process.

Few Cases Concerning a Grant of Probate

1) Chiang Shirley v Chiang Dong Pheng [2015] SGHC 98

In this case, the plaintiff and the defendant were siblings. The defendant was named the executor according to the Will but did not file a Grant of Probate after the death of their parents. The plaintiff sent numerous notices to him, lodged caveats, and also contested that she wanted to be a joint executor of the deceased’s estate. After going through all the facts and circumstances of the case, the Court concluded that the plaintiff’s actions were unjustified. The claims of the plaintiff were dismissed and she was asked to bear 75% of the amount for defending the action commenced by her against her brother.

2) Khor Liang Ing Grace (executor of the estate of Tan See Wee, deceased) v Nie Jianmin [2014] SGHC 202

In this case, the defendant lodged a caveat based on a loan she had made to the deceased. The plaintiff asked for the removal of the caveat and was the executor of the deceased’s Will. The Court referred to section 33 of Probate and Administration Act 1934 which stated that a Grant of Probate shall not be made until a notice has been sent to the caveator and the caveator has been allowed to contest the right of any plaintiff to such a Grant. The Court concluded that the defendant did not contest the right to a Grant of Probate but wanted to recover the loan amount, so lodging a caveat was not the right procedure for such. After thorough consideration of all the facts, the defendant’s claims were dismissed.

3) Liau Cheng Mee James & another v Liau Ee Ling Julie [2013] SGHC 147

In this case, the plaintiff and the defendant were children of the deceased. They were permitted a Grant of Probate and were joint executors of the deceased’s estate. The plaintiff claimed, among other things, that the money spent for obtaining the Grant of Probate be added to the deceased’s estate while the defendant stated that they had an agreement to bear their separate legal expenses. In addition, the defendant also claimed that expenses concerning the upkeep of the deceased’s property be added to the deceased’s estate account as well. The Court concluded that the defendant had almost no written proof against any of his defenses and counterclaims and gave the judgment in favor of the plaintiff dismissing almost all of the defendant’s claims.