Generally, there are two situations that can occur when a person passes on and leaves behind an estate.
1) That person has written a will.
2) That person hasn’t written a will (this is known as dying intestate).
When someone dies after having written a will, there will usually be someone appointed as an executor and this person will have to extract the Grant of Probate from the Singapore courts in order to be able to distribute the estate.
When someone dies without making a will, his closest next of kin will be required to get Letters of Administration in order to be able to administer the estate. This person is known as the administrator.
One common misconception is that you only require letters of administration in the event that a person hasn’t written a will. However, this isn’t necessarily always the case. Sometimes, the people appointed to be executors in a deceased person’s will might choose not to take up the role of executor. This isn’t actually as an uncommon scenario as you might think, as the role of executor is widely known to be quite an onerous one.
Sometimes, the person chosen by the deceased to be an executor hasn’t been informed by the deceased about this appointment, and this increases the chances of this person renouncing this right, in which case, an administrator will have to take up the role.
When a person appointed to be an executor in a will refuses to take up the role, the closest next of kin will similarly have to get Letters of Administration in order to administer the estate. This is known as applying for Letters of Administration with the will annexed.
What are the differences between executors and administrators?
Although it may appear that executors and administrators do more or less the same thing, there is a large difference in the authority of executors as opposed to the authority of administrators, particularly before the grant of probate or letters of administration is issued.
For the executors of a will, executorship takes effect from the moment the deceased passes away. There is no need for probate of the will before the executor can apply to be substituted in place of the deceased in the action.
However, under Singapore law, when a person dies intestate, his estate vests in the Public Trustee, and this vesting of the estate ceases on the grant of administration in respect of the estate. Essentially, what this means is that unless the grant of letters of administration has been issued, the deceased’s next of kin have no legal authority to actually act for the estate. The authority to do so is only conferred upon the extraction of the grant of letters of administration.
So what exactly are Letters of Administration?
Basically, Letters of Administration are grants given by the court that serve as a court order authorizing the most relevant next of kin of the deceased to be appointed as the administrator to administer the estate and distribute the assets according to the law in Singapore.
The details of this administration process can primarily be found in the Probate and Administration Act and the Intestate Succession Act.
So who can administer the estate if there is no will?
Generally, if someone dies in Singapore without a will, there is an order of priority for the next of kin of the deceased to apply for administration of the estate. This order of priority can be found in the Intestate Succession Act, and the rules state that the following classes of persons are entitled to apply for Letters of Administration (in descending order of priority)
- the spouse;
- the children of the deceased;
- the parents;
- brothers and sisters;
- nephews and nieces;
- grandparents; and
- uncles and aunts.
Usually, if you do not have the highest priority out of all the classes, but still wish to administer the estate for the deceased, you will have to obtain the consent of those beneficiaries who have a higher priority than you before you can do so. This is known as obtaining a renunciation and involves getting a signed consentfrom these beneficiaries in the presence of a Commissioner of Oaths.
Are there any other things to take note of when applying for Letters of Administration?
It should be noted that 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 the infant has attained the age of 16 years, to any next of kin that the infant may nominate.
While up to four administrators can be appointed, one administrator is usually sufficient to apply for letters of administration. However, whenever there is a minority (younger than 21) or life interest (where the asset is given to the beneficiary for use during his/her lifetime only) in the estate, there will have to be at least two administrators involved, if not the administration will have to be granted to a trust corporation.