Grant of Probate or Letters of Administration

Introduction

Following the death of a family member, their property (collectively called “the deceased’s estate”) must be administered and distributed under the law.

If the deceased had made a Will, then normally they would have appointed at least one individual as the executor, to manage their estate according to the terms of the Will, and their final wishes.

But if the deceased had not made a Will, the court will appoint a minimum of one person to act as the administrator of the deceased’s estate. Normally, the administrator is the spouse of the deceased, or the deceased’s next of kin.

Someone who is wanting to manage the deceased’s estate must apply for a Grant of Probate (if there is a Will) or Letter of Administration (if no Will is available). This will ensure they are legally recognised as the executor (if a Will exists) or administrator (if no Will exists) of the deceased’s estate.

Grant of probate: When a valid Will is available

If the deceased left a valid Will, then a Grant of Probate is applicable. This is a document giving power to the executor(s) to administer the deceased’s last wishes.

What does an executor do?

An executor is a person appointed by the deceased to manage their estate after death. They must apply to the court for a Grant of Probate in order to distribute the assets of the deceased to the beneficiaries named in the Will.

What if no executor is named in the will?

If the deceased did not name an executor in their Will, the court will appoint a suitable person to manage the estate of the deceased. The relevant document for this situation is known as the ‘Grant of Letters of Administration with the Will annexed’, rather than a Grant of Probate.

How many executors can be named?

This is for the Will-maker to decide, but it is wise to appoint more than one executor so that the executors can keep a check on one another, or in case one executor is unable to perform their duty when required. This might be because they themselves have passed away, or they have become physically or mentally unfit.

Can the right to apply for Grant of Probate be renounced?

If the appointed executor refuses to administer the deceased’s estate, then they have the option of renouncing their right to apply for the Grant of Probate. They do this by notifying the Court of their intention to renounce, during the hearing of the Grant of Probate application. In this case, the court will then appoint another suitable person to manage the deceased’s estate. The relevant document for this scenario is also known as the ‘Grant of Letters of Administration with the Will annexed’.

Where should you apply for a Grant of Probate?

The total value of the deceased’s estate will determine where the application should be made:

1. Public Trustee office – for estates worth less than $50,000
2. State Court – for estates worth between $50,000 and $3 million
3. High Court – for estates worth more than $3 million

What are an executor’s typical duties?

This depends on the contents of the Will, but the duties of the executor(s) will mainly include:

1. Administering and distributing the assets of the deceased, according to the wishes of the deceased as stated in their Will
2. Acting as the ‘trustee’ of the deceased’s estate

If any of the beneficiaries are a minor (under 21 years of age), then a trustee has the power to hold, invest or use any money for the minor beneficiary’s benefit.

Acting as the deceased’s executor can be both an honour and a burden. In addition, the executor must pay all debts and taxes owed by the deceased before they died.

How long does a Grant of Probate usually take?

If a lawyer is hired to handle the application, it usually takes about 4-6 weeks after the lawyer has filed all the necessary documents for the Grant of Probate to be ready.

Contesting a Will: Contentious Grant of Probate

Sometimes, the deceased’s family might feel that the Will made by the deceased does not adequately reflect their loved one’s final wishes. The family may try to prove in court that the Will is invalid, and that the deceased’s estate should be distributed differently.

There are 5 grounds on which to contest a Will. These are: non-compliance with formalities; lack of testamentary capacity; a Will made under undue influence; a fraudulent Will; and failure to provide for the dependents of the deceased. We will look at each of these in turn.

(1) Non-compliance with formalities

If a Will fails to comply with the necessary formalities then the court may declare it to be invalid. The formalities are:

1. It must be in writing
2. The testator (person making the Will) must be at least 21 years old
3. The testator must sign the Will at the bottom of the document (and if they are unable to do so, another person may sign the Will in the presence of the testator)
4. A minimum of 2 witnesses must witness the testator’s signature; they must also sign the Will in the presence of the testator
5. To prevent conflicts of interest, the 2 main witnesses may not be the beneficiaries or the spouse of the testator – but a beneficiary may be the third witness.

It is advisable to hire a legal professional to assist in making a Will, due to the complexities involved.

(2) Lack of testamentary capacity (poor mental state of the deceased)

When making the Will, the deceased must satisfy the following criteria:

• Have a sound mind i.e. free from any illness which would affect their ability to make a Will
• Have a sound memory, so that they can remember their possessions
• Have a sound understanding, so that the deceased knows to whom they are giving a gift

If the testator is elderly, it is advisable to have them make their Will with a lawyer, in private – without their beneficiaries being present. This is to avoid any contention of undue influence or incapacity.

In the case of blind, mute or deaf testators, it is important to show in the Will that the testator understands the contents of the Will, and that it is made according to their instructions.

(3) Will made under Undue Influence

When making or signing the Will, the testator was under undue influence – this could be coercion, threats, harassment or persistent persuasion.

Undue influence occurs when someone influences the testator into making the Will in a way that he or she desires. Elderly people in particular are more vulnerable to the influence of others.

(4) Fraudulent Will

A testator is tricked into signing a Will, which they believe to be another document. Another type of fraud can arise, where there are two Wills from the same testator but with different signatures on each. In this case, the court will consult handwriting experts to inspect the signatures and report their findings in court.

(5) Failure to provide for the deceased’s dependents

This is where, for example, the deceased left nothing in their Will for their children, but instead left their possessions to someone outside of the family, whom they had an affair with. This would cause hardship to the children of the deceased and so the court may vary all or part of the Will, where the Will is found to be insufficient in supporting the deceased’s dependents. Before making this alteration, the court will consider relevant factors such as the rationale of the testator at the time they made the disputed Will.

A person intending to contest a Will on these grounds must be:

• The husband or wife of the deceased
• The daughter of the deceased who is single (unmarried) or who is mentally or physically disabled, or unable to maintain herself for another such reason
• A son who is mentally or physically disabled or unable to maintain himself for another such reason
• An infant son

The law governing this situation is the Inheritance (Family Provision) Act of Singapore.

Do I need a lawyer for Grant of Probate?

This is a complicated process, with many different forms to be filed. It is therefore advisable to hire a lawyer.

No valid will is available: Letters of Administration

If the deceased died intestate (i.e. without a valid Will), the document granted by the court is known as the Letter of Administration. This ensures the distribution of the deceased’s estate will be made under the relevant law.

In Singapore, the relevant laws for non-Muslims are the Probate and Administration Act, and the Intestate Succession Act (ISA). Muslims in Singapore, however, are governed by the Administration of Muslim Law Act, and Syariah Law.

Who can be an administrator?

In the case of non-Muslims, the appointment of an administrator is made according to the order of priority as set out in the ISA. The Act specified 7 classes of persons who are eligible to apply for the Letters of Administration. These are, in the order of priority:

1. The spouse
2. The children of the deceased
3. The parents
4. Brothers and sisters
5. Nephews and nieces
6. Grandparents
7. Aunts and uncles

For Muslims, however, the appointed administrator will be the person who holds the highest number of shares in the deceased’s estate according to the Inheritance Certificate. This certificate shall be obtained from the Syariah Court, prior to the application of Letters of Administration.

If a beneficiary of the deceased’s estate is a minor (i.e. under 21 years of age) then a minimum of 2 administrators must be appointed.

A person who lacks capacity (such as a minor or someone who is bankrupt) cannot be appointed as an administrator.

Can the right to apply for the Letters of Administration be renounced?

Yes – by filing a renunciation and consent form, a person who has priority in law to apply for Letters of Administration may renounce that right.

How long do letters of administration take to be granted?

It usually takes between 4 and 6 weeks for the court to grant the Letters of Administration, subsequent to the filing of the final court documents.

Do I need a lawyer for Letters of Administration?

This is a complicated process, with many different forms to be filed. It is therefore advisable to hire a probate lawyer to handle the process for you.