What is involved as an executor of a will?
When you agree to be the executor of a person’s will, you agree to manage and distribute that person’s assets for the beneficiaries named in his will and in the manners instructed in the will upon that person’s death. In other words, you agree to execute the person’s instructions contained in his will after he dies.
In order to access the deceased person’s assets after his death, you will need to obtain a court document called a Grant of Probate, usually by engaging a probate lawyer. The management and distribution of the deceased person’s assets could involve withdrawing monies from his bank accounts and distributing them. You may also be required to sell his assets such as shares or property before distributing the proceeds. With the duty to execute the will usually come discretionary powers such as those to determine the timing and manner of sale.
Often, the executor does not get to see the will until that person dies. However, if you wish to understand the extent of your responsibilities before agreeing to the request, you may wish to ask about the extent of administration that would be required of you. You may also like to ask how you would get hold of the original will when the time comes for you to act.
What would it cost me?
A will usually directs the executor to pay costs associated with funeral arrangements, obtaining a Grant of Probate and selling assets out of monies from the estate.
Do I get paid?
Usually no, unless the will gives such express instructions.
My relative has just passed away and he has named me the executor of his will. What should I do now?
The first task is to get hold of the will and read it to understand the duties entrusted to you. You may wish to inform the family members of the deceased person that a will exists if they are not already aware of it. If there are other beneficiaries in the will, you may also wish to inform them about the existence of the will. However, if there may be contention for the estate, you should quickly consult a lawyer to preserve the estate.
Since it is now your duty to manage the estate, you should determine what the estate comprises and its liabilities by investigating the total assets and debts of the deceased person at the time of his death. Some of the deceased person’s debts are not cancelled by his death and it may fall on you the executor to pay off those debts from the estate. For example, the deceased person’s outstanding income tax liability falls on you to repay from the estate upon his death (per Section 58 of the Income Tax Act).
Concurrently, you should approach a lawyer to help you apply to the Courts for the Grant of Probate. This document appointments you as the legal personal representative of the deceased’s estate.
The Grant of Probate permits you to transfer, sell, or deal with the deceased’s assets. In the interim period until you obtain the Grant of Probate, you should do the necessary to preserve the assets of the estate and withhold from distributing any part of it.
As it can take several months to obtain a Grant of Probate hence, it is advisable to approach a probate lawyer immediately. The right probate lawyer would be able to guide you on what to expect and instruct you on what you need to do or provide to obtain the Grant of Probate. A good probate lawyer would also be able to give related advice such as how to protect the estate from contentious family members of the deceased person or other claimants to the estate.
Once you have obtained the Grant of Probate, you will be able to manage the deceased person’s assets. Management of such assets can include transfers to beneficiaries (such as properties, shares and car), close bank accounts and collect insurance payments. Institutions such as banks, insurance companies, the Singapore Land Authority (“SLA”), the Housing Development Board (“HDB”), the Singapore Exchange and Central Depository (“SGX”), and the Land Transport Authority (“LTA”) would require you to produce a certified true copy of the Grant of Probate when they receive your request to transfer or sell the deceased’s assets.
As an executor, you have the duty to give an account of assets, sale proceeds and monies paid out from the estate. Having a separate bank account for the estate would be helpful for managing estate monies. With the Grant of Probate, you can open a bank account in the name of the estate.
In addition, with the Grant of Probate in hand, you would be able to liquidate assets, discharge the estate’s debts, and distribute benefits according to the will. These should be done without undue delay.
How long would it take for me to get the Grant of Probate?
If all necessary information and documents are available, assets are known and their values easily ascertainable, and there no beneficiaries below the age of 21, the application of Grant of Probate can be completed within 2 to 4 months from the time the first Court papers are filed.
The process takes longer where assets have to be discovered, where asset values need professional valuations, or where there are overseas assets. For example, you may not know whether the deceased person owns shares, which banks hold his bank deposits, or where the estate includes business interests. Such cases can take 6 months or more.
The will makes specific monetary gifts but the bank account does not have enough cash. However, there are assets of value. Do I sell them, in what order and who do I pay first?
When you worked out the net assets and liabilities of the estate during the application for Grant of Probate, you would have ascertained whether the estate is solvent (net value of assets exceed total debt) or insolvent (the estate owes more money than the total value of its assets).
The relevant sections of the Probate and Administration Act together with the Schedules they refer to, direct that the estate first pays off funeral, testamentary and administration expenses, followed by:
- Where the estate is insolvent, all debts and liabilities according to the prevailing bankruptcy rules;
- Where the estate is solvent, the orders of gifts and payment of debts as directed in the will but otherwise in the priorities stated in the Second Schedule.
Section 58 of the Income Tax Act provides for the payment of the deceased person’s tax liabilities out of the estate and the administrator’s duties in that regard.
The deceased person was the surviving owner of the HDB flat and gave all his assets to his children equally in his will but one of the children wish to retain the HDB flat. Can this be done?
Your duty as the executor is to perform the instructions in the will. However, if all beneficiaries agree unanimously, you should first seek HDB approval and then consult your probate lawyer to draft a family agreement. As an executor, there are duties and obligations placed on you as a trustee of the deceased’s estate. For the protection of yourself and the estate, and for the avoidance of future disputes, it is important that you seek advice from the probate lawyer.
How do I access overseas assets for distribution?
Where the deceased person has assets in a Commonwealth country such as Malaysia or Australia, you should first ascertain that the person resides primarily in Singapore and first obtain the Grant of Probate in Singapore. Once you obtain the Grant of Probate, you should then engage a lawyer in the foreign country or state to have the Singapore Grant endorsed by the relevant court there. This process is known as Resealing a Foreign Grant of Probate. A Resealed Foreign Grant of Probate would permit you access to the assets in that country as though a Grant of Probate was obtained in that country or state. If you need assistance with finding a lawyer in the foreign country, try asking your Singapore probate lawyer whether they can direct you to one that they have worked with before.
By illustration, if a Singaporean died in Singapore with assets in both Singapore and Malaysia, the executor may obtain the original Grant of Probate from the Singapore Court and then engage a probate lawyer in Malaysia to reseal the Singapore Grant. The Malaysian Court may require translations of documents. It is important to include the deceased’s foreign assets in the list of assets when applying for the original Grant of Probate.
If the assets are in a non-Commonwealth country, you will likely have to apply for a separate Grant of Probate in the foreign country over just the assets in that country. You should approach a probate lawyer in that country for assistance.
Is there any Estate Duty or inheritance tax that I need to pay?
If the deceased dies after 15 February 2008, there is no estate duty (inheritance tax) payable on the Singapore assets at the time of writing.
Need legal advice for wills, probates and trust?
If you need legal advice for wills, probates and trust, you can get a Quick Consult with Kenneth or other lawyers. With Quick Consult, you can check out in minutes and for a transparent, flat fee, the lawyers will call you back on the phone within 1-2 days to answer your questions and give you legal advice.
This article is written by Kenneth Lie from Characterist LLC and edited by Tang Chee Seng from Asia Law Network.
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 a 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.
Continue reading:
- How to Handle Overseas Assets in Your Will
- How to write a Will in Singapore
- Why you might consider making a Lasting Power of Attorney (LPA) when making your will
