Wills, Trusts and Succession

Congratulations on deciding to take the crucial step in drafting your will. Planning for one’s inevitable departure is indeed not easy – it requires confronting one’s mortality and considering difficult questions, such as how to distribute your assets upon demise. We have prepared this document to help make this process easier. This document will provide you with crucial information that will assist you to focus on the key matters that you should consider before making a will, guide you through the process and also what you should do after making a will.

Key Stages

1. Pre-drafting: The first step in making a will. This is probably the most important stage as it requires you to decide on the big questions of what will happen to you and your assets upon your death.
2. Drafting: Once we have your instructions, we will begin drafting your will in accordance with your wishes. Once this is done, we will invite you to review the draft. There may be subsequent amendments and additions after the review process.
3. Post-Drafting: Once your will is finalized, you should keep it in a safe place, and also consider filing it with the Wills Registry. This phase also means considering an executor of will to ensure your wishes are carried out.

Post-Execution Steps

1. Get your lawyer to make at least two certified true copies of your will;
2. Give a certified true copy of your will to each executor of will.
3. Keep the original will in a file, in a safe location and let your executors and/or somebody you trust know where your original will is kept;
4. Keep copies of your list of assets and bank accounts in the same file so that your executors will be able to ascertain the value and location of your assets upon your death
5. Consider filing details of your will with the Wills Registry (Please refer to the eServices portal on www.mlaw.gov.sg/pto

Pre-Execution

Before making a will, you should consider the “Four P’s” – People, Pool of Assets, Protection, and Personalisation.

People

When making a will it is important to consider the people that will be included in your will. Generally, these people will include

• Executors of your will – The Executor is responsible for carrying out the instructions in your will after your death. Your executor should be someone who you trust and preferably someone younger than you since this person needs to be alive at the time of your death. In most cases, people appoint their spouse or other family member(s) as the executor(s) of their will. It is also wise to appoint a replacement executor in case the first pre-deceases you, or is otherwise unable to act as your executor. There are only two requirements that your executor must possess – Your executor must be at least 21 years old (and have capacity), and must not be bankrupt. If your executor subsequently becomes bankrupt, you should execute a new will and appoint a new executor.
• Trustees – In certain situations, it may not be prudent to gift an asset unconditionally. For example, if the will beneficiaries are your minor children, they could inherit a substantial amount before reaching an age capable of making responsible financial decisions. To prevent such a scenario, you may want to appoint a trustee to hold these gifts on trust for the benefit of your minor children until they reach a certain age. This is just one of the possible scenarios in which a trust may be created. An executor of your will can also act as trustee if so appointed.
• Beneficiaries – The next crucial component of your will is determining who will be benefiting from your estate, your will beneficiaries. Your beneficiaries can essentially be anyone. You should make a list of your beneficiaries and also decide on whether you will be gifting specific assets to these beneficiaries or whether you prefer them to have a certain percentage of your overall estate. The best way to decide this is to consider the nature of your gift and its practical value. It would make sense to gift liquid assets such as cash in your bank accounts in percentages (E.g 25% to A, 40% to B and 35% to C), and purely physical assets in their existing form (E.g my car to X). Also consider whether the asset will be of value to your beneficiary in its existing form. There might be assets highly valuable to you that might not serve the same value to the will beneficiaries. A good example is the shares you have in a company. Would it be more beneficial to allow your executor of the will to convert such assets and distribute the proceeds?
• Replacement Beneficiaries – You should also list down replacement beneficiaries in case one of your beneficiaries pre-deceases you or is otherwise unable or unwilling to receive their entitlements under your will.
• Guardians – If you have children who are minors at the time you are making a will, you should also consider appointing a guardian to care for your children in the event that both you and the other parent of your children die before they have reached the age of majority.
• Witnesses – Once your will is finalized, you will have to execute it in front of two witnesses. You may arrange for your own witnesses to be present, otherwise we will provide the witnesses, who will be either lawyers or paralegals from our firm. If you choose to arrange for your own witnesses, please note the following:
  • The witnesses may be anyone other than a beneficiary OR the spouse of a beneficiary under your will. There are dire consequences if your witnesses are also beneficiaries under your will. If your beneficiary (or spouse of a beneficiary) is a witness to your will, the gift to that beneficiary will be invalid.
  • The witnesses must be physically present and must both be
    able to see you when you are executing your will.
  • Confirmation & Personal Particulars – Once you have compiled
    your list of people, you should approach them and seek confirmation
    where necessary. For example, a person that you have shortlisted to
    be your executor may not desire to stand as one. So make sure that
    you have discussed this with them and obtained their consent. You
    should also ask all the people involved in your will to provide you with
    their personal particulars such as their:
    • Full name
    • I.D Number (NRIC/FIN/PASSPORT)
    • Address

Pool of Assets

You should take stock of all the assets that you currently have and consider how you would like to devise it to the beneficiaries you have listed. Pay special attention to the following matters:

• The form and value of your assets change over time. Your will needs to be flexible enough to deal not only with current assets but with your future assets as well. In that sense, a will is meant to be ambulatory in nature. A well drafted will should be capable of dealing with all your assets in whichever form and to whatever value they may be at the time of your death. Therefore it may be counter-productive to list each individual asset in your will, for if the asset no longer exists in the future or has been converted to some other form, then the gift will fail. For example, if you gift monies from bank account X to person A, and some years down the road you close that bank account and transfer the monies to account Y, that specific gift will fail because bank account X no longer exists at the time of your death.
• The proper approach to dealing with your assets is to list all your assets separately, and indicate which beneficiaries will receive them. Your lawyer will review this list and draft it in your will in accordance with your intentions.
• Assets held jointly with another person cannot be gifted away in your will. Such assets may include properties held under joint tenancy and joint bank accounts.
• Certain insurance policies that have been expressed to benefit spouses and children similarly will not form part of your estate and cannot be gifted away in your will. You should check with your
  insurance agent and/or lawyer whether the specific insurance policy is capable of being devised under your will.

Protection

A will is meant to speak beyond your grave. It provides those who are still alive instructions on what to do with your assets. Without a will, nobody can objectively know what your intentions were in respect of your property. Accordingly, a will should be drafted whilst considering foreseeable future events. The worst thing that could happen is where an unforeseen event occurs and your will does not make provision for it. In such a scenario, it would be impossible to objectively ascertain your intentions, and this may render all or part of your will unenforceable. Therefore it is important to protect your will against such uncertainty. There are some things that you can do to mitigate the risk of this happening:

• Consider your current circumstances and make projections for the future. Do you think there is a prospect for fundamental changes to your lifestyle and responsibilities? For example, if you have
  recently become a parent, do you foresee having more children, in which case it would be unwise to make a will leaving all or most of your assets to your first child. It would be more advisable to think
  about the proportion of your assets that will go to your children both current and future;
• Advise your lawyers on whether any of your beneficiaries may require assistance with managing their inheritance after your death. If your children are minors, would you want them to come into a large sum of money at a young age in the unfortunate event that you die before they reach adulthood? Think about what would be a reasonable age for your children to completely manage their own finances. This is something quite subjective and may differ from person to person. Some parents include a clause that creates a trust over the inheritance so that it will only be released to their child when they reach a specific age.
• Consider your future liabilities – will you have adequate assets to pay off your liabilities after your death? You should make provisions for assets from which your executors can pay off your outstanding liabilities. Failing to make such provisions may result in creditors challenging your will in future.
• When considering the people in your will (Executors, Trustees, Guardians, Beneficiaries etc), it is always advisable to have replacements in case one or more of those people pre-decease
  you.

Personalisation

Whilst some may view a will as a purely legal document that serves to address the distribution of property, this is merely a partial characterization of the nature of a will. At its core, a will is something deeply personal; it intimates a person’s desire to care for those left behind. Whilst this is done implicitly through devising of assets to your beneficiaries, there is no reason why you should not explicitly include messages of comfort to those who you will be leaving behind.

Finally, while most of your will revolves around the entitlements of those who are living, you should not neglect your own desires. In particular, you should consider your funeral arrangements and what should happen to your body after your death. Some resolve this question in accordance with their religious faith or cultural norms, whilst others resolve it by asking what would bring comfort to their loved ones. Regardless of how you approach this question, it is important that it is addressed. You should consider the following matters:

• What funeral arrangements do you desire?
• What should happen to your body after your death?
• Who should be in-charge of your funeral arrangements?
• Are your funeral instructions reasonable? Whilst it is completely up to you to decide what happens to your body after your death, you should also consider whether the practicalities of your wishes, and whether the people charged with carrying out your wishes will be willing and able to adhere to your desires. It may serve you well to discuss these matters with them.

Post-Execution

Once you have executed your will there are several other matters your should keep in mind. First, your will is only of use if it is available at the time of your death. This goes without saying, but it is often a fact that is overlooked. If you die and your will is lost or kept in a secret location only you know about, then unfortunately nobody else will know that you made a will and your estate may not be administered in accordance with your intentions. The following list provides guidelines on what you should do with your will after it is executed:

1. Ask your lawyer to make at least two certified true copies of your will;
2. Provide a certified true copy of your will to each of your executors;
3. Keep the original will in a file, in a safe location and let your executors and/or somebody you trust know where your original will is kept;
4. Keep copies of your list of assets and bank accounts in the same file so that your executors will be able to ascertain the value and location of your assets upon your death;
5. Consider filing details of your will with the Wills Registry (Please refer to the eServices portal on www.mlaw.gov.sg/pto for more information). It is not mandatory to file details of your will with the registry, however it will be helpful in future should your executors or next-of- kin require information on whether you had executed a will.

Conclusion

It is advisable to review your will from time to time to ensure that it is still in line with your intentions and circumstances. If you find that your circumstances have changed, it would be wise to draft a new will. Finally, you should keep in mind that the law develops and changes over time. Your will is a document that will only come into effect hopefully many years after it was executed. For this reason, it will be susceptible to the developments of the law. Therefore if your will was drafted a long time ago, it would be wise to consult a lawyer to review the contents of your will to ascertain its validity and fidelity to your original intentions.

Glossary and Key Terms

Will: A legal document that outlines an individual’s wishes regarding the distribution of their assets and the care of their dependents after their death.

Executor: A person appointed in a will to carry out the deceased’s instructions and manage the estate.

Trustee: A person appointed to hold assets in trust for the benefit of others, ensuring their proper management and distribution.

Beneficiaries: Individuals or entities named in a will who receive the assets or benefits from the estate.

Guardians: Individuals appointed in a will to take care of minor children if both parents pass away before they reach the age of majority.

Witnesses: Persons who observe the signing of a will and attest to its authenticity.

Pool of Assets: All the assets, properties, and possessions owned by an individual at the time of their death.

Wills Registry: A registry where details of a will can be filed for safekeeping and future reference.

Frequently Asked Questions

Q: What is the purpose of making a will?
A: A will serves to outline how an individual’s assets should be distributed and how their affairs should be handled after their death.

Q: Who are the key parties involved in a will?
A: The key parties involved in a will include the testator (person making the will), the executor(s), beneficiaries, trustees (if applicable), and witnesses.

Q: How do I choose an executor for my will?
A: An executor should be someone you trust, capable of carrying out your instructions, and preferably younger than you. Spouses or family members are commonly chosen as executors.

Q: Can I make changes to my will after it is drafted?
A: Yes, you can make amendments or additions to your will through a codicil or by drafting a new will.

Q: Should I include funeral arrangements in my will?
A: Yes, you can include instructions about your funeral arrangements and the handling of your body after your death to provide guidance to your loved ones.

Q: Is it necessary to file my will with the Wills Registry?
A: It is not mandatory to file your will with the Wills Registry, but doing so can be helpful for your executors or next-of-kin to verify the existence of your will in the future.

Q: How often should I review my will?
A: It is advisable to review your will periodically, especially when significant life events occur, to ensure that it aligns with your current intentions and circumstances.

Q: Can a will become invalid due to changes in the law?
A: Over time, the law may change, which could impact the validity of certain provisions in your will. It is wise to consult a lawyer to review and update your will if needed.