Applying for a Grant of Probate in Singapore
When a person passes away and his Last Will is produced, the Executor(s) (and Trustee(s) where applicable), who has been specifically appointed by the deceased in the Will, has to make an Application to the Court for a Grant of Probate.
(Note: Where the deceased did not leave a Will, or the deceased’s will cannot be found, the next-of-kin of the deceased are required to apply to Court for a Grant of Letters of Administration.)
The Grant of Probate is a Court Order which empowers the Executor(s) (and Trustee(s) where applicable) to carry out the instructions in the Will which would include the distribution of the deceased’s assets to his specified beneficiaries.
If the gross value of the Estate does not exceed $3 million, the application should be filed in the Family Justice Courts. If the gross value of the Estate exceeds $3 million, the application should be filed in the Family Division of the High Court.
In the event there is no Executor named in the Will, Section 13 of the Probate and Administration Act states that the Court will allow Letters of Administration with the Will annexed to be granted to the person(s) the Court deems ‘fittest to administer the estate’. More information on such person(s) can be found in the Probate and Administration Act.
The majority of probate applications for wills are non-contentious. However, as the Application involves a large number of documents, it is preferable to seek the assistance of a lawyer. If it is foreseeable that the probate application is contentious, seeking advice from a lawyer is highly recommended.
The Application Process
The lawyer acting for you in the application for the Grant of Probate will bring you through the general stages of the application which include the following steps:-
Preliminary Step: Preparation of Documents required for the Application
The Family Justice Courts website provides the public with the forms required for an application for the Grant of Probate. The usual documents include the following :-
1. Ex-parte Originating Summons
The first document required is the ex-parte Originating Summons. ‘Ex-parte’ means that there is no other party involved in the application; the Executor(s) is the only applicant.
The Originating Summons may be filled using Form 48 of the Family Justice Court Practice Directions (“FJCPD”). Information required in this form includes the details of the deceased and the applicant(s), and the order requested i.e. “Probate be granted to the Applicant(s)”.
In addition, Form 52 of the FJCPD should be attached to the Originating Summons to certify that a search for any caveat and probate application in relation to the Estate in question has been made, and no prior caveat or probate application has been found.
When you approach a lawyer to act for you in the application, your lawyer will file the necessary electronic forms via the e-litigation portal. The digital copy of the search report summary (or any positive search results of a caveat or prior probate application) will be attached to the originating summons.
2. Statement in Form 51
The second document required is the Statement in Form 51 of the FJCPD. You will be required to provide certain information in relation to the deceased, his Estate and the applicant(s), such as:
- The particulars of the deceased, including information about his/her death, and domicile (the country in which the deceased was residing before his death);
- The estimated value of the Estate (and confirmation as to whether it exceeds $3 million or not);
- Confirmation that the copy of the Will filed is a certified true copy of the Will (the original Will has to be submitted to the Family Justice Courts for verification);
- Confirmation that the applicant(s) is an Executor named in the Will;
- Whether the Application is filed within 6 months from the death of the deceased (and if not, the reason for the delay).
In practice, your lawyer will ask you for the above information before filling in the electronic form on your behalf.
3. Certified true copy of the Death Certificate
The certified true copy of the Death Certificate has to be submitted to Court so that the Court can verify that the owner of the Estate is legally certified as deceased. If the Death Certificate cannot be produced, the Executor may carry out a search for a Death Record (if he is not able to remember the date of death) or apply for a Death Extract (if he can reproduce the full name, NRIC number and date of death). The said searches can be applied for on the online extracts portal of the Immigration and Checkpoints Authority here.
4. Certified true copy of the Will
The certified true copy of the Will to be filed should contain the certification “This is a certified true copy of the original Will of [name of deceased] dated [date]” on a cover page attached to the copy of the Will.
After the filing of the above documents with the certified true copy of the Will, the original Will should be submitted to the Probate Counter at the Family Justice Courts by 4.30pm on the next working day. After the Court verifies the authenticity of the Will, the Court will return the Will to the applicant (or his lawyer).
The applicant should ensure that the Will is in English. If the Will was written in another language, the applicant should apply for a translation by the Court translator (your lawyer should be able to help you in this regard). The translator will have to verify the accuracy of her translation in a supporting affidavit.
Exceptional circumstances:
- Should the original Will be in the custody of a foreign court, a certified true copy of the Will should be submitted in place of the original.
- If the original Will has been lost, the Probate and Administration Act provides that a draft copy may be submitted instead if it appears that both the draft and final will are identical. However, this situation may be potentially contentious and it is recommended that you seek legal advice.
5. Caveat and Probate Search
A search of both the record of caveats and record of probate applications has to be made on the day of the probate application. As mentioned earlier, a digital copy of the search report (and results of a positive search, if any) has to be attached to the Originating Summons.
The application may proceed smoothly if there has not been any caveat or or prior probate applications. A positive search will mean that the situation is potentially contentious and legal advice is recommended.
Step 1: Submission of the Main Application
The Main Application involves filing the abovementioned documents in Court. In practice, your lawyer will file the Application electronically using the elitigation portal. An Executor(s) who intends to make the application without assistance from a lawyer will have to do so via the counters at the Service Bureau. More information on the locations of the Service Bureaus can be found here.
After the documents are filed in Court, a provisional probate case number will be created and a checklist of items will be generated. As mentioned above, your lawyer will have to submit the original Will to the Probate Counter at the Family Justice Courts by 4.30pm on the next working day. You will then have to provide the supporting documents as explained below.
Step 2: Submission of Supporting Documents
1. Administration Oath
The Executor (and Trustee) who is applying for the right to administer the Estate has to give an undertaking to the Court that he/she will distribute the Estate and effects of the deceased according to the deceased’s instructions in the Last Will and to account for the same. The Executor will also have to pay the deceased’s outstanding debts using the monies in the Estate. This requirement for the Administration Oath is stated in Section 28 of the Probate and Administration Act.
In practice, your lawyer will prepare the Administration Oath in accordance with Form 54 of the FJCPD. You will then be asked to sign the Administration Oath in the presence of a Commissioner for Oaths, after which the Administration Oath will be filed electronically by way of the checklist on the elitigation portal.
2. Supporting Affidavit
The checklist requires the applicant’s Supporting Affidavit to be filed within a given deadline (usually within two to three weeks from the filing of the Administration Oath). Your lawyer will prepare the Supporting Affidavit in accordance with Form 225 of the FJCPD and you will be asked to sign the Supporting Affidavit in the presence of a Commissioner for Oaths.
The following documents shall be exhibited in the Supporting Affidavit:
- Statement (filed and accepted by the Court)
- The certified true copy of the Death Certificate and Last Will
- Schedule of Assets (please see below)
3. Schedule of Assets
The Schedule of Assets has to be filed in the checklist and also exhibited in the Supporting Affidavit. This is essentially a list of the deceased’s properties in Singapore as at the date of death, as well as outstanding debts (which are secured by mortgage).
You should try to identify all the assets of the deceased i.e. both real estate as well as all other personal property, and an estimated market value of such property as at the date of death.
- Real estate refers to the deceased’s HDB flat / private property / part-share in a flat or property.
- Personal property refers to any property other than real estate and may include the deceased’s monies in bank accounts (including fixed deposit accounts and unit trust accounts), stocks and shares, insurance policies (please check if the policies have been assigned), vehicle(s), precious jewellery and items in the deceased’s safe deposit box. This list is non-exhaustive and you should ask your lawyer for more specific advice.
- It is important to note that monies in the deceased’s CPF Account are not considered part of the Estate. If the deceased made a CPF nomination, his CPF savings will be distributed to his nominees. If the deceased did not make a CPF nomination, his CPF savings will be distributed by the Public Trustee according to the laws of intestacy i.e. to family members who rank according to the rules of distribution expressed in Section 7 of the Intestate Succession Act.
As the Schedule of Assets also requires the deceased’s property outside Singapore to be listed, please let your lawyer have the relevant information.
Once you have confirmed the deceased’s assets, your lawyer will file the Schedule of Assets in accordance with Form 226 of the FJCPD as well as the Supporting Affidavit by way of the checklist on the elitigation portal. Please note that any future amendments to the Schedule of Assets will have to be done by way of a separate application.
Step 3: Hearing in Court
Upon the filing and acceptance of the application and the Administration Oath, the Court will inform your lawyer of a probate hearing date and time. Your lawyer is required to attend the probate hearing on the scheduled date and time, unless the rest of the supporting documents (Supporting Affidavit and Schedule of Assets) are filed and accepted by the Court before the hearing date. In such a case, the Court may vacate the hearing date.
Step 4: Submission of Supplementary Affidavit and Schedule of Assets
If you are not able to confirm the details of the deceased’s assets early in the application process, you may ask your lawyer to write to the relevant financial institutions on your behalf. (As the financial institutions will require an express authorisation by the Executor(s), your lawyer will require you to sign a Letter of Authorisation addressed to each financial institution.)
Given how the Supporting Affidavit mentioned above will still have to be filed within the Court’s deadline, your lawyer will require you to sign the Supporting Affidavit that does not exhibit the Schedule of Assets as yet, so that the same can be filed via the checklist on the elitigation portal within the deadline.
The Court would thereafter grant an “Order-in-Terms” of the probate application based on the Supporting Affidavit (without Schedule of Assets). From this point on, your lawyer will be able to write to the relevant financial institutions to ask them for detailed information regarding the deceased’s outstanding accounts / monies / shares. The financial institutions may take some time to respond to your lawyer.
Once your lawyer receives the relevant information and is able to fill in the Schedule of Assets on your behalf, you will be asked to sign the Supplementary Affidavit in the presence of a Commissioner for Oaths. The Supplementary Affidavit exhibits the complete Schedule of Assets. Your lawyer will file both documents on the elitigation portal. Please note that any future amendments to the Schedule of Assets will have to be done by way of a separate application.
Step 5: Extracting the Grant of Probate
Once the Court accepts the Supplementary Affidavit and Schedule of Assets and further confirms that there are no other documents required*, your lawyer will generally be able to request for the extraction of the grant. A final search has to be made to ensure that there are no caveats lodged against the Estate or any pending application in relation to the same. The search results must be submitted with the request for extraction.
*Note: There is generally no need for the Executor(s) (and Trustee(s)) to sign an Administration Bond, since the deceased had specifically entrusted his Estate to him by way of the Last Will. The requirements are different for applicants of Grant of Letters of Administration.
If all documents are in order and all fees are paid, the Court will prepare and issue the Grant of Probate with the engrossed Schedule of Assets annexed. The electronic copy will be sent to your lawyer via the elitigation portal and a certified true copy of the same should suffice for all purposes. You may also ask your lawyer to request for a Paper Grant with the Court’s red seal. With the Grant of Probate, the Executor(s) (and Trustee(s) where applicable) may commence the management and distribution of the deceased’s assets.
The complexity of selling residential property after the owner passes away depends on how the property was held – jointly or as tenants in common.
You will first need to request an updated title search to ascertain how the property is owned and find out whether there are any barriers to prevent a sale (i.e. caveat/notice of claim).
Jointly held propertyIf the property is owned jointly, which is often the case with married couples or if the property is owned by a trust, Transmission by Survivorship will need to be completed.
Any jointly held property does not form part of a deceased person’s estate, but still needs to be dealt with in a timely manner after the person has died. This is because if it isn’t done, it becomes a much more complicated process when the surviving property owner dies.
Your lawyer will complete an Authority & Instruction (“A&I”) form and an Application for Transmission (Survivorship), which must be signed by the surviving title holder in front of a solicitor, or other person authorised to take a Statutory Declaration. A certified copy of the Death Certificate will need to be attached to the A&I form along with a photocopy of a valid photo ID for each surviving title holder.
Once the transmission is registered, the survivor will own the property and will be the registered proprietor on the title. The property can then be sold, but as stated earlier it does not form part of the person’s estate.
Property held in deceased person’s nameIf the property is held in the person’s sole name, or as to a certain share (ie as Tenants in Common) then the property forms part of the estate and Probate (if there is a Will) or Letters of Administration (if there is no Will) will be needed in order to transfer or sell the property.
Once the High Court has issued a grant of either Probate or Letters of Administration your lawyer can complete an A&I form and an Application for Transmission (Personal Representative). The personal representative is the executor(s) or administrator(s) named in the Probate or Letters of Administration document.
All named executors or administrators will need to sign the A&I form and the Application for Transmission in front of a solicitor, or other person authorised to take a Statutory Declaration. A photocopy of a valid photo ID for each executor or administrator will need to be attached to the documents. In this case, a certified copy of the Probate or Letters of Administration document will also need to be attached to the documents.
When the transmission is registered, the property will have effectively been put into the name of the estate. If the executor or administrator’s name is John Smith, the title will show that the property is held in the name John Smith “as Executor” or John Smith “as Administrator”. This step, called the transmission, must be done before any property can be transferred to one or more beneficiaries of the estate, or sold.
A notice of change of ownership will be sent to the local council and water provider. In many cases, the forwarding address of the executor or administrator will be care of the estate’s solicitors, meaning that all rates demands and water rates bills will go directly to the lawyers. If the solicitors are holding funds for the estate from the closure of bank accounts etc, they can make the rates and water rates payments directly.
It is important to make sure that the homeowner’s insurance remains current and that the insurers are advised if the property is unoccupied. The insurance company may require proof of who has authority to act on behalf of the estate (ie copy of the Probate or Letters of Administration document). In most cases your lawyer will be able to liaise with the insurance company on your behalf.
Sale of estate propertyOnce the transmission has been completed the executor/administrator can put the property onto the market to be sold.
It’s a good idea to consult your solicitors before signing an Agreement for Sale and Purchase, because there are particular clauses that can be inserted into the agreement that refer to the fact that, although the property is currently in your name as executor or administrator, you yourself did not previously own the property so you do not necessarily know about any alterations that may have been done to the property.
When you have an offer you can give your agreement to your lawyers, who will set up a sale file to do the conveyancing work.
As noted above, if the lawyers are holding funds for the estate from the closure of bank accounts etc, they can make payment of any bills related to selling the property, ie small renovations, cleaning and refurbishment costs, valuation services and advertising costs.
It is the estate’s responsibility to cancel the homeowner’s insurance, which your lawyer can arrange. Any overpayment made for homeowner’s insurance will then be reimbursed to the estate.
Once settlement of the sale has been completed, the solicitors acting for the sale will usually transfer the proceeds of the sale over to the estate administration file, after which the proceeds can generally be paid out to the beneficiaries as part of the major distribution of estate funds.
Transferring property to estate beneficiariesIf the property is to be transferred to the sole beneficiary of an estate (or to all of the beneficiaries), this can be done by simply preparing A&I forms and arranging to have them signed, as was done with the transmission.
If there is more that one beneficiary and one of them wants to take the property as part (or all) of their entitlement from the estate, you may need to get a registered valuation of the property in order to come up with an agreed value.
In this case your lawyers will draw up a distribution statement showing how much is available for each beneficiary. This statement will show the value of the property to be transferred to one of the beneficiaries. The lawyers will usually arrange for all beneficiaries to agree to the distribution prior to making the distribution payments and transferring the property.
If the value of the property is greater than the amount of the inheritance due, the person receiving the property would need to pay an amount to the estate to make up the shortfall. He or she may need to take out a mortgage to come up with this amount, which is done in the same manner as if the property was being purchased outright.
If you have any questions regarding the transferring deceased estate property, or wish to seek advice regarding administering a deceased estate, please contact the author, Mimi Lewell by phone on 837 6831 or email mimi.lewell@smithpartners.co.nz
http://www.smithpartners.co.nz/library/articles/deceased-estate-administration/selling-residential-property-from-a-deceased-estate/
