Author: Patrick Tan and Jeffrey Koh
The preparation of one’s Will is often a sensitive issue. Coupled with the many technicalities and pitfalls to be aware of, this process can often appear daunting and complicated, causing many to defer it or in some cases, neglect it entirely.
In this article, we will be looking at five of the commonly asked questions relating to Wills that we have encountered, to clarify some of the prevalent questions and misconceptions surrounding Wills.
What do executors do and whom can I appoint
In a nutshell, the role of an executor is to carry out the wishes of the deceased in accordance with their Will. Some of their duties would include:
- Applying for and extracting the Grant of Probate;
- Making funeral arrangements;
- Locating and collecting all the relevant assets of the deceased;
- Paying the debts and obligations of the deceased; and
- Distributing the assets to the beneficiaries under the Will.
You may appoint anyone to be your executor, provided that they are above 21 years of age, not a bankrupt, and of sound mind. It is also possible, and in some circumstances desirable, for you to appoint a beneficiary under the Will to be the executor of your Will. Therefore, many elect to appoint their spouse or adult child as the executor of their Will. In every case, it is vital that you consult the intended executor and obtain their consent to the appointment.
However, given the extensive responsibilities associated with the appointment as well as the corresponding legal obligations, you may not wish to burden your loved ones with this onerous task. Moreover, executors may also face exposure to liability for improper distribution of the assets of the estate.
As an alternative, you may consider appointing a professional executor instead. Professional executors such as lawyers, or licensed trust corporations, have the advantage of being independent and well-equipped to deal with legal complications that may arise. While a professional trustee will likely not be aware of your personal preferences, wishes, and family dynamics, they will be able to work closely with you to gain a better understanding of the material considerations when exercising their discretion (if any).
Beneficiaries who are below 21 years of age
Assets may also be given away to beneficiaries who are below 21 years of age, i.e. minor beneficiaries. However, property bequeathed to minor beneficiaries will be held on trust by your appointed trustee, until such beneficiaries attain the age of 21 years. In the meantime, your appointed trustee will work with the appointed guardian of the minor beneficiary, to administer the property bequeathed to the minor beneficiary.
Should you wish to nominate minor beneficiaries in your Will, it is advisable to have at least two (2) Executors and Trustees to administer or hold any assets for their benefit until they attain the age of majority.
The Wills Registry does not keep a copy of the Will
The Wills Registry is a confidential registry where people making a Will (or their lawyers) can deposit information on wills, and is maintained by the Public Trustee.
One common misconception that many people have about registering their Will at the Wills Registry, is that the Wills Registry will keep an actual copy of the Will. The Wills Registry keeps neither the actual Will, nor a photocopy, in the registry.
Rather, the Wills Registry keeps important information such as:
- Details of the person making the Will;
- Date of the Will;
- Details of the person who drew up the Will; and
- Details of where the Will is held.
Registration at the Wills Registry is not mandatory, and does not have any impact on the validity of your Will. In addition, information held by the Will Registry is strictly confidential, and only the following people have access to this information:
- The person who made the Will or his legal representative;
- The solicitor acting for the deceased’s estate;
- The deceased’s next-of-kin;
- The donee of a Lasting Power of Attorney (LPA) or a deputy appointed by the Court, with powers to manage the testator’s property and financial affairs if the testator lacks mental capacity; and
- A person whom the Public Trustee considers to have a legitimate interest in the testator’s will or estate.
No Estate Duty payable
Estate duty is a tax on the total market value of a person’s assets at the date of his or her death. This includes both cash and non-cash assets. Examples of common assets include real estate, bank accounts and publicly listed shares.
For deaths occurring on and after 15 February 2008, estate duty has been removed. However, estates of individuals deceased prior to 15 February 2008 continue to be subject to estate duty.
How do I revoke my Will
The methods of revoking a Will are restricted to those set out in the Wills Act (Cap. 352), and no other means of revocation is recognised as valid under Singapore law.
The methods of revoking a Will are set out at Section 15 Wills Act (Cap.352), and are as follows:
- By marriage (subject to some exceptions);
- By another Will or Codicil executed in accordance with Singapore law;
- By making a written declaration of an intention to revoke it, executed in the same manner required as a will;
- By burning, tearing or otherwise destroying the Will by the executor, or by someone else at his instruction and in his presence, with the intention of revoking it.
Once revoked, no Will may be revived unless by re-execution or by a codicil.
Written by: Patrick Tan and Jeffrey Koh