What is a Will?
A will is a legal document that instructs the administration and distribution of what a person owns (his ‘estate’) among his beneficiaries after his death. This person is called the ‘testator'. 'Beneficiaries' are those who inherit or benefit under the Will. The 'Executor' is the person nominated by the testator to administer and distribute his estate upon his death. Usually, the same person is appointed as executor and trustee (a person who has the power to hold the estate of the deceased upon his death).
If there are beneficiaries who are minors (persons under the age of 21 years) named in your Will, it will be preferable to have at least two Executors/Trustees who will be able to administer or hold any assets or invest or use any money for the benefit of the minors.
Problems created by dying without a will
- Your estate will be distributed according to section 7 of the intestate succession act, which might not reflect your desire.
- Your loved ones need to apply to the court to be the administrators of your estate. A secured creditor can also apply to the court as an administrator.
- Your estate settlement process could be delayed unnecessarily.
- Your business could collapse because there is no known successor to your business.
- Your company’s benefit payout would be delayed because the process of court granting a letter of administration is typically longer than grant of probate.
- Your life insurance proceeds could also be delayed because of item 5.
- Your estate need to have at least two administrators if there are minor beneficiaries
- Your estate needs to furnish an administration bond if there are minor beneficiaries.
- If you die in an accident, it is in your family’s interest to have a legal representative (i.e. administrator or executor) of your estate engaged as soon as possible in order to commend a legal suit.
Does Your will need to be professionally drafted by a lawyer or a legal professional
Preferably, though it is not compulsory. If you are at least 21 years of age and are of sound mind, you may make your own Will without consulting a lawyer. But the risk is that your home-made Will may be ineffective or invalid, causing your beneficiaries to suffer unnecessary expense. It is therefore in your interest to consult a lawyer who can advise you and draft your Will for you according to the law. At Summit Planners Pte Ltd, we have a dedicated lawyer to serve your needs.
However, if you are a soldier in active military service, or a mariner at sea, you may make a Will even if you are under 21 years of age
What You Should Include in a Will
You should state the person(s) or organisation(s) ('Beneficiaries') to whom you wish to give away your property and assets. For example, you may give away your house, car, shares, insurance policies, bank accounts, SRS, cash and jewellery to family members, friends or to charities.
Money in Your Central Provident Fund ('CPF')
If you have made a nomination under the CPF Act, your nominee shall be entitled to the funds in your CPF account regardless of what is stated in your Will. If you have not made a nomination, your funds will be distributed under the law in accordance with the Intestate Succession Act.
If you get married after making a nomination, your nomination made before marriage is automatically cancelled, unless you say that it was made in contemplation of marriage. Therefore, you ought to make a new nomination after marrying.
Witness Your Will
This is an important stage of the process. The signing of your Will must be witnessed by two persons and they must both be present at the same time. Witnesses must not be beneficiaries under the Will. Neither can they be the husband or wife of any of the beneficiaries.
Changing Your Will
Never attempt to change your Will by crossing parts out, adding words in, or by attaching anything to it. If you do so, your Will may become ineffective or invalid. If you wish to change your Will, either make a fresh Will or prepare a Supplemental Will (a 'Codicil').
Reviewing Your Will
If you marry or remarry, your Will is nullified or cancelled unless the Will was made in contemplation of your marriage.
You should review your Will if any of the following happens:
- if you change your name or anyone mentioned in the Will changes his name;
- if an executor or trustee dies or becomes incapable of carrying out his duties owing to ill-health;
- if a beneficiary dies;
- if you subsequently sell or part with any property mentioned in the Will
- if there is any significant change in circumstances, for example, when you acquire property or assets which have not been mentioned in your Will.
It is advisable to review your Will regularly.
Making Your Will Known
Although a Will is a private document, it is important that your family and especially your executors know that you have a Will and know where you have kept it. If you wish, your lawyer can look after it for you. You should then give your executors your lawyer's name and address. You may also register and deposit information about your Will at the Will Registry upon payment of a fee.
Administering Your Estate
Your Will takes effect upon your death. Your executors will have to apply to Court for a Grant of Probate. The Court will only issue the Grant after it is satisfied that all procedural requirements have been met. Estate Duty clearance will be required before a Grant is obtained, (before the abolition of Estate Duty in 2008).
However, the executors have the power by virtue of your Will to act even before the Grant is issued. For example, your executors may pay or release debts and transfer property or assets. But it is necessary to obtain the approval of the Commissioner for Estate Duty, before the abolition of Estate Duty, when dealing with landed property or major assets. In this case, it is also necessary to get a copy of the Grant of Probate.
Once the Grant of Probate is issued, the Will becomes a public document. The original Will is retained by the Court. The executors will be given a copy of the Will together with the Grant. All your property and assets will then pass to your executors, who will have the responsibility of administering and distributing the estate according to the instructions in your Will.
If you are concerned about the cost of making a Will, discuss this with us. You will be given an estimate of the cost before you appoint us to help you with your will.
Some of the points mentioned above do not apply to Muslims. Under Section 115(1) of the Administration of Muslim Law Act, the beneficiaries must apply to the President of the Syariah Court for an Inheritance Certificate to establish the share of each beneficiary.
Muslims can only dispose of or give away 1/3 of their estate to persons who are not already entitled under the Inheritance Certificate mentioned above.