Introduction to Wills, Probate & Letters of Administration
When a loved one in the family has departed leaving behind property, such property (collectively called “the deceased’s estate”) must be administered and distributed according to the law.
If the deceased made a Will, the deceased would normally appoint at least one person as the executor to manage their estate in accordance with their last wishes.
However, if the deceased did not make a Will, the court will appoint at least one person to be an administrator of the deceased’s estate. The administrator is normally the deceased’s spouse or one of the deceased’s next-of-kin.
If one intends to manage the deceased’s estate, he or she must apply for a Grant of Probate (if Will is available) or Letters of Administration (if Will is unavailable) in order to be legally recognised as the executor (if Will is available) or administrator (if Will is unavailable) of the deceased’s estate.
When a valid Will is available: Grant of Probate
A Grant of probate is applicable only when the deceased left a valid will. The Grant of Probate is a document that gives power to the executor(s) to administer and distribute the deceased’s last wishes.
What is an executor and what do they do?
An executor is a person appointed by the deceased to manage the deceased’s estate. The executor shall apply to the court for a Grant of Probate in order to administer and distribute the deceased’s assets to the beneficiaries.
What if there is no executor named in the Will?
In the situation where the deceased did not name the executor(s) in his Will, the court will appoint a person who is suitable to manage the deceased’s estate and the Grant extracted in this situation is called the ‘Grant of Letters of Administration with the Will annexed” instead of Grant of Probate.
How many executors can be appointed?
It is actually up to the Will-maker but it is advisable to appoint more than one executor so that the executors can keep each other in check or in case of one of the executors being unable to perform their duty when the time comes, for instance, they passed away, or are physically or mentally unfit, etc.
Can you renounce the right to apply for the Grant of Probate?
If the appointed executor(s) refuse to handle the deceased’s estate, the executor(s) can renounce their right to apply for the Grant of Probate. During the hearing of the Grant of Probate application, the executor or their legal representative can renounce the said right by notifying the court. Then, the court will appoint another person who is suitable to manage the deceased’s estate and the Grant extracted in this situation is also called the ‘Grant of Letters of Administration with the Will annexed”.
Where do you apply for Grant of Probate?
It depends on the total value of the deceased’s estate:
- Less than $50,000 – Public Trustee Office
- Below $3 million – State Court
- More than $3 million – High Court.
What are the typical duties of the Executor?
Duties of an executor will depend on the contents of the Will, but it mainly includes the duties as follows:
- Administer and distribute the deceased’s assets according to the Will, where the deceased’s wishes are stated
- Act as the ‘trustee’ of the deceased’s estate
A trustee has the power to hold, invest or use any money for the minor beneficiaries’ benefits (minor is person under 21 years old).
It is both an honor and a burden to act as the deceased’s executor. The executor shall also pay up all debt and taxes owed by the deceased before the deceased passed away.
How long does a Grant of Probate typically take?
For those who engage a lawyer to handle the application for Grant of Probate, the Grant of Probate will be ready in about 4-6 weeks after the lawyer has filed all the necessary documents.
Contentious Grant of Probate: Contesting a Will
The family of the deceased may feel that the Will (made by the deceased) does not properly reflect the deceased’s final wishes. The family may contest the Will by proving that the Will is invalid in the court and so that the deceased’s estate must be distributed differently.
There are 5 grounds to contest a Will, namely, non-compliance with formalities, lacking of testamentary capacity, Will made under undue influence etc., fraudulent Will and failure to provide for deceased’s dependents.
Number 1 – Non-Compliance with Formalities
The court may declare a Will invalid if it has failed to comply with the formalities as follows:
- Must be in writing
- Testator (Will-maker) must be at least 21 years old
- Testator must sign at the bottom of the Will (if the testator is unable to sign the Will, another person may sign the Will in the testator’s presence)
- At least 2 witnesses must witness the testator’s signature and also sign on the testator’s Will in the testator’s presence
- To avoid conflict of interest, the beneficiaries or the spouse cannot be the 2 main witnesses of the Will. However, a beneficiary may be the third witness.
Due to the complexity of making a proper Will, it is advisable to hire a professional (such as a lawyer) to assist in making the Will.
Number 2 – Lacking of Testamentary Capacity (Mental State of the Deceased)
The deceased, when making the Will, must satisfy the following criteria:
- A sound mind free from illness which affects the ability to make a Will
- A sound memory where the deceased can remember his or her possessions
- A sound understanding, the deceased knows that whom he or she is giving the gift to
For the elderly testators, it is advisable for them to make a Will with a lawyer in private without the presence of their beneficiaries (to avoid the contention of undue influence or incapacity).
For blind, deaf or mute testator, it is significant to show in the Will that the testator understood the contents of the Will and the Will is made according to his or her instructions.
Number 3 – Will made under Undue Influence etc.
The deceased, when making or signing the Will, was under undue influence, coercion, threats, harassments or persistent persuasion.
Undue influence happens when another person influences the testator into making the Will the way he or she desires. The elderly people may be more venerable to the influence of others.
Number 4 – Fraudulent Will
A testator is trapped to sign the Will, which he or she believes to be another document. Fraud also arises in the situation where there are two Wills from the same testator/deceased with different signature on each Will. The court will call up the handwriting experts to examine the signatures and testify their findings.
Number 5 – Failure to provide for deceased’s dependents
In the strange situation of deceased (parent) did not provide anything to his or her children but left everything to an outsider he or she may have an affair with. As this causes hardship to the children, the court may vary the whole or a portion under the Will if it finds that the Will is unreasonable in maintaining the deceased’s dependant. Prior to the decision, the court will take into account relevant factors such as the rationale of the testator when making the disputed Will.
A person who intends to contest under this ground must be a dependent and should be:
- The husband or wife of the deceased
- The daughter who is single (not married) or who is mentally or physically disabled or unable to maintain herself
- A son who is mentally or physically disabled or unable to maintain himself
- An infant son
The Inheritance (Family Provision) Act of Singapore governs the said situation.
Do I really need a lawyer for Grant of Probate?
Due to the complicated process, where there are many forms to be filed, it is advisable to hire a lawyer.
No valid Will available: Letters of Administration
If the deceased did not make a Will, the grant extracted from the court is called the ‘Letter of Administration’. Since the deceased died intestate, distribution of the deceased’s estate shall comply with the relevant laws.
For non-Muslims in Singapore, the relevant laws are Probate and Administration Act and the Intestate Succession Act (ISA). For Muslim in Singapore, they are governed by the Administration of Muslim Law Act and Syariah law.
Who can be the administrator?
For non-Muslims, appointment of an administrator is according to the order of priority under the ISA. The ISA laid down 7 classes of persons who are eligible to apply for the Letters of Administration. The 7 classes of persons (in the order of priority) are as follows:
- the spouse
- the deceased’s children
- the parents
- brothers and sisters
- nephews and nieces
- uncles and aunts
Whereas for the Muslims, a person who hold the highest number of shares in the deceased’s estate according to the Inheritance Certificate (obtained from the Syariah Court prior to the application of the Letters of Administration) shall be appointed as the administrator.
A minimum of 2 administrators must be appointed if there is a beneficiary of the deceased’s estate who is a minor (below 21 years old).
A person lacking capacity (such as someone bankrupt or minor) cannot be appointed as an administrator.
Can you renounce the right to apply for the Letters of Administration?
A person who has priority in law to apply for the Letters of Administration may renounce his or her right for such application by filing a renunciation and consent form.
How long do letters of administration typically take?
Subsequent to the filing of the final court documents, it should take 4-6 weeks to extract the Letters of Administration.
Do I really need a lawyer for Letters of Administration?
Due to the complex process, where there are many forms to be filed, it is advisable to hire a lawyer.