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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.
Cases Concerning A Grant of Probate
1. Sun Yanyuan v Ng Yit Beng [2022] SGHC 286
In this case, the applicant is the lawful widow of the deceased, Mr Ng Yit Yew, who passed away on 15 September 2020. The deceased appointed the applicant as his executrix and sole beneficiary pursuant to his Last Will and Testament dated 5 August 2020. The applicant applied for the Grant of Probate and was issued the Grant on 15 February 2022. This case pertained to orders regarding the sale of the deceased’s flat, in which he had a 30% stake in.[1]
2. WFE v WFF [2022] SGHCF 15
In this case, the matter of debate was regarding a CDP account of the wife and whether the assets in that account were to be divided. The judge found that the Wife did not prove that all the shares in CDP Account No ending 5068 were acquired by inheritance from her late father. She only provided one CDP statement dated July 2021 and an incomplete transaction history of selected shares from 2005 to 2021. There was no evidence of any direct transfers from her late father’s estate to her CDP account, nor evidence suggesting that her subsequent purchases were funded by inheritance monies. Although her CDP statement dated July 2021 showed some common shareholdings as her father’s Schedule of Assets in the Grant of Probate, there were also major differences in shareholding that were not accounted for. Subsequently, the Grant of Probate was crucial in allowing the judge to rule that the account was to be included in the matrimonial assets to be divided during divorce.[2]
3. WDS v WDT [2022] SGHCF 12
In this case, the plaintiff was the sole executor and trustee of the last will and testament of the Deceased. The defendant, [WDT], alleged that the gift of US$1.5 million was made to her by the Deceased during the latter’s lifetime and sought to have this recognized by the plaintiff as a debt or a liability of the Deceased’s estate which should be paid prior to the distribution of the estate. The plaintiff was issued a Grant of Probate on 22 March 2018, and intended to make an application under s 786 of the Family Justice Rules 2014 to clarify the legal position of the Intended Gift. The defendant’s prayers were dismissed on the basis that donatio mortis causa was not established.[3]
Conclusion
In conclusion, obtaining a Grant of Probate is a crucial step in managing and distributing the estate of a deceased individual in Singapore, particularly when the estate value exceeds $50,000. Contrary to popular belief, a Will alone is insufficient to handle the deceased’s assets, as financial institutions require a court order to release funds for distribution. The probate process involves several stages, including document preparation, court hearings, and asset listings, which can be complex and time-consuming. Engaging an experienced probate lawyer is often recommended to ensure compliance with legal requirements and to expedite the process. Ultimately, a Grant of Probate provides assurance that the deceased’s estate will be properly administered and distributed to the rightful beneficiaries according to their last wishes.
Glossary and Key Terms
Estate: The total assets, property, and liabilities left behind by a deceased individual upon their passing.
Grant of Probate: An official court order issued by the Singaporean court that authorises the executor(s) to manage and distribute the estate of the deceased according to their Will.
Executor: The person or individuals appointed in the deceased’s Will to carry out the distribution of the estate and ensure the fulfilment of the deceased’s wishes.
Will: A legal document that outlines the deceased’s instructions regarding the distribution of their assets and the appointment of executors and beneficiaries.
Beneficiaries: Individuals named in the deceased’s Will who are entitled to receive a share of the estate’s assets.
Administration Oath: A legal commitment made by the executor, obliging them to distribute the deceased’s estate according to the terms of their Will and pay off any outstanding debts from the assets.
Supplementary Affidavit: A document filed when the exact scope of the deceased’s estate is unknown, containing additional information obtained from financial institutions about the assets.
Caveat: A formal notice filed with the court, indicating a possible objection to the Grant of Probate or any other application related to the deceased’s estate.
Donatio Mortis Causa: A gift that is made upon death.
Frequently Asked Questions
Q: What is a Grant of Probate, and why is it necessary?
A: A Grant of Probate is a court order that allows the executor(s) to manage and distribute the deceased’s estate according to their Will. It is essential as financial institutions require this order to release funds for distribution.
Q: Who can apply for a Grant of Probate in Singapore?
A: Only the executor(s) named in the deceased’s Will can apply for a Grant of Probate. Executors must meet certain requirements, including being at least 21 years old, of sound mind, and not bankrupt.
Q: Where should I file the application for a Grant of Probate?
A: If the estate’s total value is below $3 million, the application should be filed in the Family Justice Courts. If it exceeds $3 million, it should be made before the Family Division of the High Court.
Q: How long does it take to obtain a Grant of Probate?
A: In non-contentious cases, it usually takes 2 to 6 months from the date of application. However, it may take longer in complex and contentious cases.
Q: What are the steps involved in obtaining a Grant of Probate?
A: The steps include preparing required documents, submitting the application, providing the Administration Oath and Supporting Affidavit, attending a court hearing, and filing the Schedule of Assets and Supplementary Affidavit.
Q: Can I apply for a Grant of Probate without a lawyer’s help?
A: Yes, you can apply without a lawyer’s assistance, but hiring a lawyer is advisable as the process can be complex, and they can provide valuable guidance.
Q: What are some complications that may arise during the Probate application?
A: Complications may include lost or undated Wills, Wills signed in non-English languages or with thumbprints, disputes among executors, or the discovery of subsequent Wills.
Q: What are the obligations of an executor during the Probate process?
A: An executor’s responsibilities include managing the deceased’s assets, paying off liabilities, arranging the funeral as per the Will’s instructions, and distributing the estate to beneficiaries.
Q: Can I involve a lawyer in the Probate process if it becomes contentious?
A: Yes, involving a probate lawyer early in contentious cases can expedite the process and provide expert guidance during any disputes.
References
- https://www.elitigation.sg/gd/s/2022_SGHC_286
- https://www.elitigation.sg/gd/s/2022_SGHCF_15
- https://www.elitigation.sg/gd/s/2022_SGHCF_12
