In his previous article on Wills and Probates, Lim Fung Peen from Yuen Law LLC talked about how to start transferring and distributing the assets of your deceased loved ones. This article reviews and demystifies the role of an executor or administrator in the distribution of a deceased individual’s assets.
The role of an executor/administrator
An executor is a person appointed by the maker of the Will to be responsible to manage and distribute the assets to the beneficiaries.
The executor should be aware of the existence of the Will and his first task is to inform the family members of the deceased if they are not already aware that the Will exists. It is also prudent that persons named as beneficiaries in the Will are also informed by the executor of the existence of the Will.
If there is no executor appointed, the family must choose an administrator
Where there is no will or no executor, the family first needs to agree who will be the Administrator(s). The Administrator will be responsible for managing and distributing the assets to the beneficiaries. Usually the spouse is the Administrator if the children of the deceased are young. If the deceased and spouse are elderly, one of the deceased’s children usually takes up this role.
After an administrator is chosen, other family members sign a “Renunciation”
Once the family has decided, the Court requires the other family members to renounce their right to apply to Court as administrator by signing a Court document known as a “Renunciation” [this does not affect the family member(s) entitlement under law to their respective share of the assets of the estate]. Where there are beneficiaries under 21 years of age the Court requires a co-administrator and sureties to safeguard their interest.
Obtaining a grant of probate or grant of administration
The document issued by the Court that authorises the Executor and is known as the Grant of Probate if there is a Will, or a Grant of Letter of Administration if there is no will.
Without the Grant of Probate or a Grant of Letter of Administration, the executor appointed under a Will or a family member would generally be unable to transfer, sell or deal with the assets.
The term “Probate” is the generic term that refers to the Court process of getting either a Grant of Probate or a Grant of Letter of Administration.
If the deceased had debts, the family should try to pay them. Otherwise, the Court may not allow Probate to be granted if the creditor objects.
A lawyer’s role in this process
The lawyer’s role is to help the executor (where there is a Will) or the family member (where there is no Will) apply to Court. The purpose of the application is to get the executor or family member legally appointed by the Court to be the official personal representative of the deceased. The Court document that appoints them is called the “Grant of Probate” (where there is a Will) or a “Grant of Letter of Administration” (where there is no Will).
The executor or administrator is expected to liaise with solicitors in providing information and documents about the deceased and next-of-kin including the original will, death registration certificate, birth certificates, marriage certificates, identification documents of all beneficiaries, as well documents relating to the assets of the deceased (e.g. bank statements, insurance policies, vehicle log card, share certificates, titles deeds etc).
If solicitors are appointed, all Court documents will be prepared for the executor or administrator to sign in presence of a commissioner for oaths before submission to the Court.
The duty of the executor or administrator as a trustee, generally, is to pay the debts of the estate,collect and distribute the assets according to the law and be accountable to the beneficiaries about the distribution of the assets.
Probate Process: The Role of the Executor/Administrator v. the Lawyer
| Executor/Administrator | Lawyer |
|---|---|
| • Manage and distribute assets to the deceased’s beneficiaries • Pay the debts of the deceased's estate • Inform family members and other beneficiaries about the Will • Liaise with the lawyer to provide information and documents relating to the a) Deceased and next-of-kin b) Assets of the deceased | • Helps executor/family member to be appointed as the official representative of the deceased by applying for a a)"Grant of Probate" (Will) or b)"Grant of Letter of Administration" (no Will) • Prepare Court documents for executor or administrator to sign before submission |
What to do before applying for the Grant of Probate:
Duration for a grant of probate/ letter of administration
The application process will take a few months, in the interim, the executor should take all steps to preserve the assets of the estate and not distribute it yet.
Grant of Probate (where there is a will):
The Grant of Probate usually takes less time to complete compared to the Grant Letters Of Administration because of additional steps required for the latter.
In cases where all information required is available and the value of the assets are easily ascertainable, with no minor beneficiaries, the time taken to complete the process can be as short as 3-4 months from the time the first Court papers are filed.
Otherwise, on average it takes about 6 months and more as an Executor or Administrator often requires time to identify the assets of the deceased and discover their value, especially if these assets may be located in other countries. Regardless, it is not uncommon for the Executor or Administrator to be unfamiliar with all the assets of the deceased, especially if the deceased had many assets.
Grant of Letter of Administration (where there is no will):
For a Grant Letter Of Administration, another common reason for it to take a longer time is that the family has to decide who the administrator should be. Time is also taken to arrange for the next-of-kin to sign the Renunciation.
Where there are minor beneficiaries i.e. under 21 years old, the Court requires a Co-Administrator as well as sureties to be provided. Additional time may be required to identify a suitable Co-Administrator. Sureties are required by the Court and we can advise you on how you may apply to Court for a dispensation of sureties. The application’s success depends on providing suitable justification for it. This application will also take additional time.
Distribution of Assets
Should an executor/administrator distribute assets before the Grant?
The executor/administrator should endeavour to preserve the assets before the grant is issued to avoid confusion.
Distribution of assets to minors
It is common to have beneficiaries who are minors i.e. under 21 years old. If that is so, as part of the application to the Court for the Grant of Letters of Administration, the Court requires additional steps to be taken to protect the minor beneficiaries. The additional steps are :
- appoint a Co-Administrator to be a co-applicant; and
- have the Co-Administrator find a person to stand as surety to the Court for the value of the estate (A surety plays a similar role to a guarantor in the context of a scholarship, i.e. to be financially responsible should the Administrators fail to discharge their duties, thus causing the minor beneficiaries to suffer a loss.)
- If a surety cannot be obtained, a further application to Court for a dispensation of sureties is required.
Distribution of foreign assets
Resealing of a Grant of Probate/Letters of Administration is the process of obtaining the subsequent authorisation by a Court of a second country after the Grant has been obtained in the Court of first country.
By way of illustration, if a Malaysian died in Malaysia with assets in both Malaysia and Singapore, it is common for the original Grant of Probate/Letters of Administration to be obtained from a Malaysian Court and then resealed in High Court of Singapore.
Simply put, you have to obtain the original Grant of Probate/Letters of Administration in the deceased’s country of residence before getting it resealed in the secondary country.
It is important for the assets of deceased in the second country to be included in the list of assets of the original Grant of Probate/Letters of Administration of the Court of the first country.
If the Grant of Probate/Letters of Administration is to be resealed in Singapore, English translations of some documents are required by Singapore Courts.
Estate Duty
If the deceased dies after 15 February 2008, there is no estate duty (inheritance tax) payable.
Ask Fung Peen any question on wills with a Quick Consult
If you would like to seek legal device on your responsiblities as an executor/administrator or on any other matter related to wills, probates and trusts, you can book a Quick Consult with Lim Fung Peen. When you get an AsiaLawNetwork Quick Consult, Fung Peen will call you back within 1-2 days for a transparent, flat fee starting at S$49 to answer your questions and give you practical legal guidance and advice.
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.