Probate meaning & process explained

Probate Meaning & process

Probate means the process by which the executor applies to the Court to have the Will approved and Probate granted.

The process involves the executor proving the Will to the Court. If satisfied, the Court will approve the Will as valid and grants Probate to the executor. The executor can then act on the Will to carry out the will maker’s intentions.

Probate process following death

When a person dies the person appointed Executor by the Will has to apply for a Grant of Probate. The Court has to satisfied itself that:

  1. The person has died (done by producing the death certificate);
  2. The Will was validly made; and
  3. The applicant is named as Executor in the Will.

Probate will not be granted unless the Court is fully satisfied.

Sometimes if there are doubts a court may require additional information. On occasions, a court may ask for an Affidavit of Due Execution. In such an affidavit the witnesses  will have to swear or affirm that they witnesses saw the will maker sign the Will before them.

You could consider the Grant of Probate like the “Driver’s Licence”. The Grant is the ‘licence’ that gives the Executor to right to act as executor rather than the Will. After all a Will could be ruled invalid.

Probate process following Grant of Probate

Once Probate is granted the executor is able to ask those who owe the deceased money to pay up. This includes money in bank accounts held by the deceased, insurance policies, etc.

It’s the Grant that empowers the executor to deal with and sell real estate and shares of the deceased to convert to cash.

The executor can also start paying off the debts of the estate and taxes from the cash available to the executor. If the estate does not have enough money to pay all of the debts such an estate is insolvent. Funeral expenses, the costs of obtaining probate and taxes have to be paid in full first. Then only do the remaining creditors get to share what’s left over.

If the estate is solvent once all assets are converted to cash the executor can begin distribution to the beneficiaries. As part of the process of distribution a prudent executor will seek a Release or Discharge from all beneficiaries.

If a beneficiary is under 21 that person is unable to provide a Release under the law. This is what stops a child from receiving his/her inheritance even if the Will doesn’t say at what age a beneficiary is able to receive his/her inheritance. More information on this can be found in our next article on Executor of Will protecting infant’s inheritance.

Executor and trustee

Most Wills appoint the same person as both executor and trustee.

Where a Will includes a Testamentary Trust the persons named as executors and trustees may also be named Trustees of the Testamentary Trust.

However, sometimes different persons may be appointed as Trustees just for the Testamentary Trust. For example, an estate may have 2 main beneficiaries, one of which is the testamentary trust. After distributing the share to the first beneficiary the share meant for the testamentary trust is then paid to the trustees of the testamentary trust by the trustees of the Will.

When a person dies there will be a lot of things  an executor has to do initially. This includes hiring a lawyer to apply for Probate.

Once Probate is granted and assets are “called in” and all debts paid it leaves just the management of the estate assets and the distribution.

With a testamentary trust it makes sense for a Will to have a Singaporean resident as executor and trustee of the Will to handle the initial work.

The Will can then have non-residents as trustees of the testamentary trust. Trust management and distribution are tasks that are more easily managed by a non-resident than the initial process of being executor and trustee.

If a Will doesn’t have a Testamentary Trust you can still name one person as executor and another as trustee. However, it makes no sense to do this as the same person can be both executor and trustee.

This way he or she can have the whole estate managed, distributed and finalised within a relatively short period of time.

For this reason most Wills appoint the same person as both executor and trustee rather than one person as executor and another as Trustee.

29th January 2021





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