When someone dies without a Will, he is said to have died intestate. When that happens, none of his loved ones has any say over who gets the assets in his estate. This is because, in the absence of a Will, the dead person’s estate goes into probate for the courts to decide who gets what. Legal fees have to be paid out of the estate to help sort things out.
In Singapore, the Intestacy Succession Act applies if a person dies without laying out any provisions for the distribution of his assets. It should be noted that this Act does not apply to the estate of any Muslim person nor does it affect any rules of the Muslim law with respect to the distribution of a dead person’s estate. Similarly, in Malaysia, provisions under the Distribution Act 1958 apply unless the deceased is a Muslim in West Malaysia and Sarawak, or is a native of Sarawak. If the person is in Sabah, then the Intestate Succession Ordinance 1960 applies.
The cruel thing about a person dying intestate is that it creates a host of headaches for loved ones. The process of asset distribution invariably becomes a messy, costly and time-consuming affair. Here is an example: Let’s say a bank director who hasn’t written a Will dies suddenly of a heart attack during a game of squash at his condo in Singapore. His parents, spouse and two children are understandably shocked by his death and their predicament is worsened when it dawns upon them that he hasn’t written a Will.
Among his assets, he has two real estate properties that, by intestate laws, have to be distributed to his loved ones according to a set hierarchical formula. However, it may not have been his intention to do that. The deceased may have wanted to leave each of his properties to his two children only, but didn’t get around to writing a Will that stated this intention. Since he did not write a Will, his intention cannot be honoured easily, even if his spouse acknowledges his intention to leave the houses to the children. The estate still has to go through the probate process.
Thus, the absence of a Will can lead to inconvenience and frustration. Further, it is not always the case that any verbal intention that the deceased may have articulated in the past won’t be disputed by other loved ones. Because he didn’t make a Will, the intestacy laws will apply. This means that the process of distribution is taken out of the hands of the family, and typically results in the distribution of assets to unintended beneficiaries.
Now, the first thing that happens when a person dies intestate is that his assets are frozen. What this means is that money cannot be taken out from his bank accounts, his properties cannot be sold, and any stocks and shares that he may own cannot be cashed in and the cash distributed to his loved ones. To have access to, or unfreeze, the deceased’s assets, such as his properties, his loved ones must apply to the court to obtain Letters of Administration.
Typically, the deceased person’s closest next-of-kin – usually his spouse or eldest child — appoints a probate lawyer to obtain a Grant of Letters of Administration. This is a court order that appoints the loved one as the personal administrator of the estate. The personal administrator is tasked with collecting all the assets, paying off debts, and distributing the rest of the estate assets to the beneficiaries.
Generally, any immediate family members of the deceased person can apply for the Letters of Administration. There is an order of priority to the people who are entitled to apply for Letters of Administration:
- Brothers and sisters
- Nephews and nieces
- Uncles and aunts
Based on the order of priority, if the eldest child of the person who died wishes to be the administrator, his surviving spouse should renounce the right to apply for Letters of Administration. Sometimes, loved ones of the dead person who have the right to apply for Letters of administration cannot agree between themselves. The court will grant the Letters of Administration to the applicant which the court assesses to be the best person to manage the dead persons estate.
In our next article, we look into more disadvantages faced by loved ones of a person dying intestate and offer a simple solution.