Navigating the Process under the Probate and Administration Act
The loss of a loved one is painful and often comes as a shock. In this current climate, with the global pandemic Covid-19, seeing constant headlines of rising infection rates and death tolls may have desensitised us to the extent that we see death as just a number. Unfortunately for those who have had to experience the death of a close friend or family member during this time, that could not be any further from the truth.
Dealing with the loss of a loved one is never easy. Adding to that, is the stress of having to deal quickly with the funeral arrangements and the distribution of the deceased’s assets in a short time after the deceased’s passing. This can be a very stressful and emotional period for most.
As lawyers experienced in probate and administration, our aim is to provide a steady and sure hand to our clients in the management of their late loved one’s estate in such trying and stressful situations. If you have found yourself at a loss after a loved one’s passing, we hope that the insights that we share in this article can help provide you with some clarity on what to do next.
Find out if a Will was made.
As an immediate family member of the deceased, you may have an idea as to whether the deceased had made a Will in his or her lifetime, and the likely locations that the Will may be kept.
If you are aware that there is a Will, and have already located it, do make sure that you do not lose it. Keep it in a safe place and make copies of it. You would need the original Will to apply for a Grant of Probate.
If you know that the Deceased did not make a Will, this will mean that instead of applying for a Grant of Probate, you will be applying for a Grant of Letters of Administration.
If you are uncertain whether the deceased had made a Will, we would suggest conducting a thorough search of the deceased’s personal belongings, and any other likely places that the Will may be kept. It is also worthwhile to speak to other family members or close friends of the deceased to find out if the deceased had made a Will in his or her lifetime. Often, there are clues among one’s personal belongings that will hint at the possible existence of a Will. For example, one of our clients located a lawyer’s name card while rummaging through his late mother’s cabinet and this was helpful towards tracing the existence of the Will.
You could also conduct a search on the Wills Registry. While the Wills Registry does not hold a copy of the actual Will, it may point you towards persons or the law firm that has it (provided that the deceased had deposited this information with the Registry).
Who should distribute the Assets?
The person(s) in charge of distributing the Assets is/are called Executor(s) for Grant of Probate or Administrator(s) for Grant of Letter of Administration.
(a) Where there is a valid Will, the Will should typically identify at least one Executor. Under the law, you can name up to four Executors in the Will. The Executor is responsible for distributing the deceased’s assets in accordance with the Will to the beneficiaries (the persons entitled to a share of the deceased’s estate).
(b) But where there is no Will or if the deceased did not name the executor in his Will, it is important to decide who bears the responsibility to distribute the deceased’s assets. In other words, who is to be the Administrator of the deceased’s estate. Should it be the spouse of the deceased? A sibling of the deceased? One of the deceased’s children? Should it be the eldest child?
As each family’s situation is different, there is no right answer to this question. What a potential Administrator must note is that he or she may have to formally ask the other family members to give up or renounce their right to be an administrator if these family members are equal or higher in rank or priority. The way the renunciation can be made is found in Section 3 of the Probate and Administration Act.
The law specifies a ranking or priority system for persons entitled to apply for the Grant of Letters of Administration. This rank or priority is determined by the percentage or share of the deceased’s estate a person receives under the Intestate Succession Act (which only applies if the deceased died without a will). Simply put, the larger the share of estate you are entitled to, the higher in rank or priority you are.
There are many good reasons why a person of lower rank or priority should be the Administrator. One example is where the spouse of the deceased (who is entitled to a larger share) is alive but unable to practically administer the estate as he or she may be elderly. As the child of the deceased, you may be more mobile and be better placed to do so.
Identifying the Assets available for distribution
Banks, the Singapore Land Authority, HDB, as well as other financial and property related entities, would require the Executor or Administrator to be authorised by the Court and be given a copy of the Grant of Probate or the Grant of Letters of Administration, before allowing the transfer of the assets from the deceased to the beneficiaries.
A Schedule of Assets must accompany every Grant of Probate and Grant of Letter of Administration. Therefore, you will also need to know the details of all the deceased’s assets before making your application to Court. If you already have these details on hand, do take time to record them down. If you do not know the details of the deceased’s assets or suspect there are assets you are unaware of, you should take steps to find out.
If these assets are not listed in the Schedule of Assets, you would be unable to gain transfer, sell or deal with these assets, and will then have to go through the hassle of amending the Schedule subsequently to add the assets that have been missed in the original Schedule of Assets.
Once the Court has approved the application, you can then take the Grant of Probate or Grant of Letters of Administration and the accompanying Schedule of Assets to the various institutions where the deceased’s assets are kept.
Urgent Access to Funds
Last, there are situations where urgent access to funds in the deceased’s estate is necessary. For example, to pay for medical bills of deceased’s children or elderly parents. If urgent funds are required, you can choose to make an application first based on the assets of the deceased you know exist. The Schedule of Assets can be subsequently amended to reflect the other assets of the deceased you may discover later.
Do you need a lawyer to extract the Grant of Probate or Letters of Administration?
It is possible for you to obtain a Grant of Probate or Grant of Letters of Administration by yourself without engaging lawyers. The Family Justice Courts have published a very helpful and detailed Probate & Administration Toolkit, which can be found here.
However, this would mean that you would have to be very familiar with all the steps involved and be prepared to personally attend at various locations in order to get the Court documents prepared and filed in Court. Some of the things that you would be required to do include:
(1) Recording all the details of all the assets of the deceased for Schedule of Assets. This may mean making numerous written queries or several trips to various institutions to find out the necessary information.
(2) If applicable, obtain a renunciation from all other beneficiaries of equal or higher rank than you. This may be challenging if you may be estranged or have lost contact with some of them.
(3) Engaging a Commissioner of Oaths to swear or affirm the Supporting Affidavit and the Administration Oath required to complete your application.
(4) Attending in person at the LawNet & CrimsonLogic Service Bureau (located in Chinatown) at least twice to file the various documents and complete your application.
(5) If one or more of the beneficiaries is a minor, you will also need to find two persons to give security in the amount of deceased’s estate and execute an Administration Bond. This is provided for under Section 29 of the Probate and Administration Act.
Given the number of steps involved, which you would naturally be unfamiliar with, it may further add to the stress you are currently experiencing to try and figure things out. The application process may take at least two to three months, and any errors may result in further delay in obtaining the Court’s approval of the paperwork.
Because of this, our clients usually prefer to engage us to assist them with this process. We will liaise with the financial institutions on your behalf, prepare the required Court documents, meet with you to answer any questions you may have and arrange for you to execute the documents before a Commissioner of Oaths. The entire process can be completed within 2-3 meetings and generally within 4 to 6 weeks.
The professional fees if the deceased’s estate is less than 3 million would usually be in the range of S$2,500 to S$3,500 (depending on the complexity of the matter) as we ensure that every step of the process is done and advised by lawyers, and not office managers or paralegals who are not qualified to give legal advice.
Dealing with the loss of a loved one is never easy and having to think about distribution of his or her assets is often the last thing on your mind. As lawyers experienced in probate and administration, you can have peace of mind leaving this matter in our hands.
In addition to our probate practice, we also regularly advise on and prepare wills for our clients to help them to manage and distribute their wealth. We are also experienced in contentious disputes, including mental capacity, probate and inheritance related disputes. Having an overview of the whole process gives us an advantage in anticipating potential challenges that may arise down the road.
If you would like to discuss any of these further, please do get in touch with us.
Jacqueline Chua, Managing Director
+65 6970 0518
Kimberly Chia, Associate
+65 6970 0318
Disclaimer: This article is intended for your general information only and does not constitute legal advice. Before taking any action or omitting to take any action in relation to the matters set out in the article above, you should consult a qualified legal advisor for specific advice for your circumstances. This article may not be reproduced, or transmitted in any form or by any means, in whole or in part, unless with prior written consent.
JACQUE LAW LLC (UEN: 201911109D) is a Singapore registered law corporation with limited liability.