The importance of Will drafting and the Intestate Succession Act”

The importance of Will drafting and the Intestate Succession Act”


Property in Singapore is extremely valuable, and much confusion can arise out of figuring out whose property belongs to whom after someone is recently deceased.

Often, a person makes a Will to specify how the property and assets should be managed or distributed after his death. However, people sometimes neglect to draft a will, or even if they do, the Will may not cover everything they possess and own. This leads to greater confusion as to the ownership of the deceased’s property.

In the event of there being no Will when someone passes on,  the default rules that apply will be the intestacy rules provided in the Intestate Succession Act which stipulate how property is distributed in the absence of a will.

It is important to note that intestacy rules only apply to non-Muslims. Where the deceased is Muslim, a different set of rules apply, under the Administration of Muslim Law Act. Specifically, the deceased Muslim’s estate will be distributed in accordance with faraidh, Muslim inheritance law. Faraidh applies regardless of whether the deceased has made a will.

Important legal terminology

Before going into intestacy rules, it may be helpful to understand certain commonly-used phrases in intestacy, probate and inheritance matters.

  • Estate: all of a person’s property, both real and personal.
  • Will: a Will is a legal document which a person uses to specify how his estate is to be managed and distributed after his death.
  • Intestacy: the situation where the management and distribution of part or whole of a person’s estate have not been provided for in a will.

Intestacy rules

When do intestacy rules apply?

Singapore intestacy rules apply where a deceased did not make a will, and the deceased was domiciled in Singapore at the time of his death. Even where the deceased was not domiciled in Singapore at the time of his death, Singapore’s intestacy rules still apply to the distribution of his immovable property, for example, his house.

However, the distribution of the movable property of a person deceased shall be regulated by the law of the country in which he was domiciled at the time of his death. ‘Domicile’ denotes the place where a person has or is deemed to have his permanent home.

What are the intestacy rules?

The intestacy rules are simple. Essentially, the estate will be divided up amongst the deceased’s family members, the proportion of which depends on:

  1. how the beneficiary is related to the deceased, and
  2. how many beneficiaries there are.

Family members include parents, spouses, children, grandchildren, brothers, sisters, aunts, uncles, nieces and nephews. Any property that is not distributed to family members will by default, belong to the government. The Intestate Succession Act addresses various scenarios of beneficiaries, and stipulates the distribution of the property for each.

Beneficiaries Distribution
Only spouse Spouse is entitled to the whole of the estate.
Only parents Parents are entitled to the whole of the estate, to be divided equally between them.
Spouse and children Spouse is entitled to half of the estate.

 

The other half is distributed equally amongst the children.

Spouse and parents Spouse is entitled to half of the estate.

 

The other half is distributed equally between the parents.

Only brothers and/or sisters Brothers and sisters are entitled to the estate, to be split equally amongst them. If any brother or sister is deceased then the  children of any deceased brother or sister shall be entitled to such share accordingly.
Only grandparents Grandparents are entitled to the estate, to be split equally amongst them.
Only uncles and/or aunts Uncles and/or aunts are entitled to the estate, to be split equally amongst them.
All above scenarios do not apply Government is entitled to the estate.

How do I prevent my property from falling into intestacy?

It may be important to you to prevent your property from falling into intestacy, where you have no control over who acquires the property. There are several ways to do so.

#1 Draft a Will

First, make sure to draft a Will. All of your property that is provided for in your Will is unlikely to fall into intestacy. Wills can easily provide for property that you currently own. When it comes to future property, you may have to take some additional steps. This can be done either pre-emptively or in the future after the property is acquired.

#2 Insert a residuary clause

It is recommended that you insert a residuary clause in your Will. This clause serves as a “catch all” for any property that is not covered by your Will. It will ensure that should you leave out any property in your Will, gain more property after the Will is made, or if a gift has failed due to circumstances, the property will be given to a person you have named instead of it falling into intestacy.

#3 Supplement your Will with a codicil

A codicil is an extra document that serves as an “add-on” to the existing Will. For example, you have obtained another car or you may have forgotten about a certain property till after you have made the Will and you wish to add it into the Will. Instead of revoking the previous Will and making a new Will, you may opt to insert a codicil which functions similarly to a Will, without requiring the whole formalities of making a Will again.

Frequently Asked Questions

Q:        What are the assets that cannot be “willed away” in a Will?

A:         Jointly-owned property such as property owned as joint tenants and joint bank accounts are not distributable as part of the estate but belong to the surviving joint tenant(s) or joint account holder as the case may be. In addition, you do not include your CPF and insurance policies in your Will because that is dealt with separately via nomination.

Q:        Can I have one Will cover all the property I own throughout the world?

A:         A Singapore Will can include foreign movable assets (eg. bank accounts, shares etc) but for immovable assets (i.e. properties), it is recommended to write a Will in that particular country as succession to immovable property is governed by the law of the place in which the property is situated.

Q:        Can I not make a Will if I have no particular preference how my estate is distributed and I am fine with the distribution pursuant to the Intestate Succession Act?

A:         Yes, you may decide not to have a Will but do bear in mind that the costs of extracting the letters of administration (in the event there is no Will) is higher as compared to the costs of extracting a grant of probate (in the event there is a Will) because there are more documents involved and the process is not as straightforward for the former.

Have questions on Wills, Probates or Trust?

If you have any questions about Wills, Probates or Trust, you can email Kah Mei at kahmei@lkmlawcorporation.com

You can expect a call back within 1-2 days on the phone to get legal advice and have your questions answered.


This article is written by Lau Kah Mei from LKM Law Corporation and edited by Leanne Cheng.

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.

http://learn.asialawnetwork.com/2018/03/20/the-importance-of-will-drafting-and-the-intestate-succession-act/

 

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