WHAT IS A WILL?
A will is a legal document setting your intentions in relation to the distribution of your property and the care of your minor children when you pass away. If you do not have a valid will, your intentions may not be followed as your Estate will be distributed according to the Intestate Succession Act. As you have acquired assets over the course of your life, you should have some say in how your assets are distributed rather than let your assets be distributed according to the intestate succession act. A will is also more flexible as it allows you to make funeral arrangements for yourself, directions for your dependents if any, as well as allows you to donate your money to charity. You should seek a lawyer to draft your will because a lawyer can ensure that your will is valid and reduces the chances of partial intestacy occurring.
INTESTACY
If a person passes away intestate, without a will, the Intestate Succession Act (ISA) will have an effect. If the person’s will only disposes of the part of his property, the ISA has effect in respect to the part of his property not so disposed of, subject to the provisions contained in the will. The main rules of the ISA are as follows:
Deceased die intestate leaving | Distribution |
Spouse No Issue No Parent | Whole share to surviving spouse |
Spouse Issue | ½ share to surviving spouse ½ share to be shared equally among issue and, where they have already died, their children. Parents are not entitled. |
Issue No Spouse | The whole share to be shared equally among issue and, where they have already died, their children. Parents are not entitled. |
Spouse Parent No Issue | ½ share to surviving spouse ½ share to be shared equally among surviving parents. |
Parents No Spouse No Issue | The whole share to be shared equally among surviving parents. |
ADVANTAGES OF MAKING A WILL
No. | Advantage | Dying with a valid will | Dying intestate |
1. | Right to choose one’s beneficiaries and determine their legacies | The Testator has a free hand (subject only to leaving reasonable provisions for dependents). | Succession to Estate is determined by the provisions of Intestate Succession Act; Estate may be inherited by persons who are not deserving or who will get a larger share than those who deserve or need more, or even by the State (bona vacantia). |
2. | Ability to choose the Executor and Trustee of one’s Will and set the terms of appointment | The Testator can choose Executor and Trustee of Will and set the scope of their powers The Executor need not be next of kin nor beneficiary. Choice of Executor always given effect to the invalid will
| Only next of kin who can qualify under s18(3) of the Probate and Administration Act can be an administrator. There may be a dispute among next-of-kin. |
3. | Minimum number of executors or personal representatives to administer an estate with a beneficiary who is a minor | Only one Executor is required. | At least two administrators must be appointed. This could lead to additional inconvenience as the administrators have to act jointly and difficulty in finding Administrator willing to be appointed. If there is a beneficiary minor, then sureties are needed. |
4. | Vesting of deceased’s Estate
| Vests in the executors upon death, enabling the Executor to handle deceased’s affairs subject to production of probate if and when required. | Does not vest in the administrators until after letters of administration have been obtained. Will vest in the Public Trustee in Singapore – for purely statutory and formal purposes – until a Grant is obtained by the Administrator. The Estate will be in a state of limbo until a Grant of LA is obtained by the Administrator. |
5. | Power to carry on the deceased’s affairs and calling in of the deceased’s assets | Executors have the power from the time the Deceased dies, to carry on the deceased’s affairs and call in the assets (subject to the validations of their actions by extraction of probate of the will, and any restrictions contained in the will). | The intending administrators have no such power until they obtain the grant of LA. Administrators cannot give a good discharge for any payments that they collect until and unless a grant of LA has been obtained. |
6. | Appointment of guardians for infant children | A Testator who has infant children can appoint testamentary guardians for the children. The Testator has free choice to appoint a testamentary guardian, and that guardian appointed under the will of the deceased parent shall act jointly with the surviving parent of the infant so long as the other parent remains alive unless that parent objects to his so acting (S. 7(3), Guardianship of Infants Act). If the surviving parent objects, the testamentary guardian can apply to the Court for orders to be made under S7(4). | Where a person has died intestate, leaving children and the other parent of the children surviving him, the surviving parent is the sole guardian, regardless of how the deceased parent may have thought of the ability and suitability of the surviving parent to be the sole guardian. If both parents have died without a will, there may be disputes between the next-of-kin of both parents to be appointed guardians (and thereby control the finances of the estates of the deceased parents. |
7. | Administration bond/ sureties to the admin bond | No Administration Bond is required (since the deceased had appointed the Executor) and No sureties required either. | All Family Division of the High Court LA applications requires the Administrator to execute an Administration Bond and to provide two sureties (unless otherwise ordered by the Court). It can cost hardship and embarrassment to the Administrator to have to ask around for people to volunteer to be sureties. Application for dispensation of sureties will add to the costs of the matter: time, cost and delay involved in extracting grant. |
8. | Shorter time and cheaper to obtain probate vs LA. | The grant of probate can be obtained faster and at the lower expense for legal costs and court filing fees if there is a valid will/ | Even in the most straightforward of cases (and even if sureties and administration bonds are not required), it is slower and more costly to apply for a grant of LA as opposed to the grant of probate. More documents have to be filed for a LA application than for a probate application. |
9. | Need to prove deceased’s religion, custom, personal law and ages and share entitlement of the beneficiaries | Generally speaking, no such requirement. | These have to be proved and causes a delay in extracting grant of letters of administration, and this is exacerbated for deceased who have a foreign domicile, as the Court will require an Affidavit of Foreign Law by a foreign lawyer.
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10. | Chain of executorship | An executor of an executor steps into the latter’s shoes and continues with the administration of the Estate which may not have been completed. | No equivalent. Beneficiaries will have to apply for a grant de bonis non, which is a fresh application to Court for a grant of letters of administration of the Estate where the administration has not been completed. |
11. | Preservation of family wealth | A testator can stipulate that part or the whole of the family wealth is to be preserved subject to the rule against perpetuities and accumulations, for a period of time. This would ensure that family wealth is not squandered by heirs. | Without a will, the beneficiaries are entitled absolutely to receive their full entitlement under the ISA once all the Estate has been collected in and debts paid. The Administrator has no power to delay the distribution (and the Administrator would be in breach of fiduciary duty if he does so). |
12. | Saving of stamp duty | There is no stamp duty payable for the transfer by the assent of a devised property to the named beneficiary. (see First Schedule, s 4 Stamp Duties Act) | The transfer by intestate succession may result in beneficiaries having to execute a subsequent Deed of Arrangement in order to re-distribute the Estate according to the deceased’s wishes. This will result in ad valorem stamp duty (and perhaps ABSD as well) if the transfer of immovable property is involved.
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13. | Savings of court fees | When there is a will, there is no need to enter into administration bond or to apply for dispensation of sureties. Fewer documents need to be filed. Filing fee savings on the bond, application for dispensation and affidavit in support or other documents which may be required to be filed. | More documents have to be filed for a grant of LA (and also LA with will annex). eLitigation requires filing fee for the filing of every document. |
14. | Issuing good receipt and discharge in satisfaction of the deceased’s assets | Sufficient if executors named in the will of any one of them gives such discharge or receipt. This can be done even before extracting probate. | No valid receipt or discharge may be given by an administrator unless he has extracted grants of letters of administration. 3Ps will not deal with persons claiming to be administrators unless they can produce the grant of LA. |
15. | Remuneration of the personal representative | The testator can fix remuneration of Executor (in the absence of express stipulation in the will, s 66 of the PAA will apply). | The personal representative can apply to Court for the commission under s 66 of the PAA. Rate of the commission may be as high as 5% of value of assets collected. |
