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(Personal representative) client representing estate sees you, innocent and ignorant of probate practice – ask whether left will behind Grants of letter of probate (will) or letters of admin (intestacy) o Ask for will, death certificate, list of assets o Carry out own enquiry first? Check bckgrd of man – well off, educated etc Wld he have made a will? Check with client – searched all over Prudence however – if left a lot of assets behind eg bnk acct etc Exepct normal person like this to prepare So nxt step to take is to advertise in law gazette – mthly publication of law soc Advert costs $84 plus, give Name of deceased Date of death And YOUR particulars ie name and address of legal firm IS IT COMPULSORY? – rule of prudence If not do so, and subseq will found in existence, the sol dealing with matter can be sued for negligence Because will might have given certain legacies who will not get such legacies if estate administered as intestate estate (only spouse and children and 7 clases of children entitled) Can then sue sol for failng to ex due care Judgement of lawyer is crucial here Wher eny HDB flat, small amt of GIRO – don’t need If well to do – advertise o Don’t take further steps until determine whether there is will Make out list of assets tt deceased left behind in the meantime To clear estate duty formalities Sg – estate duty still prevails (HK, Malyaisa etc has abolished) X have letters of admin unless estate duty commissioner has issued cert stating tt estate duty paid or not payable What were names by which deceased known o In sg – the IC but stiems, there may be docs which refer to the deceased in short form or with Christian name added o For eg deceased may have bought shares in the name of some other name – o Or inehreited money in form of some other name o When claiming money, may need to prove the name o Or change of names by deed poll o Must state in application for grant other names by which deceased known o Reqt tt must be explained – where diff names are o Registrar looking at application – must explain to him why these 3 diff name mentioend. To state tt he had share certs stating name in certain way, inheritance etc referring to him o O71 R6 ROC – reqg explanation on diff names by which deceased known Grant in additional name (O. 71, r. 6) 6. Where it is necessary to describe the deceased in a grant by some name in addition to his true name, the applicant must state in the Statement in Form 172 the true name of the deceased and must also state therein that some part of the estate, specifying it, was held in the other name, or as to any other reason that there may be for the inclusion of the other name in the grant. Original must be produced
To be deposited with court and kept in court registry If needs to be shown elsewhere then ask for certified tre copy fr registrar
Reading will – est who executor is since he vested with resp of administering estate o Establish who is person lawfully entitled ot obtain grant in estate If will – easier because will will state who executor of will is – tt s person entitled to apply for grant If come without will and not sure whether wil left behind, then go back and search personal files of deceasd and check – if still no, then ask who the lawyer of deceased was and whether with lawyer If confirm tt no will, then apply for grant of letters of admin Take down particulars of assets - in sg and movables outside sg o 1. Estate duty purposes Arises for movable items wherever situated both in sg and outside sg Immovable property in sg if deceased domiciled in sg at date of death Couhtry where immovable property situated may charge duty Assets of deceasead may include also things which he has genelr power of apptment over/ may be beneficiary of some remote will 2. to determine how assets to be distributed – specific legay or general legacy Be probing and penetrarting in questions o 1. Ask fr client all tt deceased has owned Estate duty is global for movable items – where held in name of deceased whether in England, US etc eg shares/ fixed deposit accts – thse become duty-able Client will give list of wha they know of in sg – may nt go beyond that Must ask them whether parents have assets overseas Does not apply to immovable items like apartments – these are not dytable where not situated in sg 2. property outside sg
need to be administered by same person to celar estate duty eg of apartment in England – or capital transfer tax etc (whiever applicable) everything tt dec owned to be set out in list ask client abt assets which deceased did not have at time of death but which he wld have given away as gifts within 5 yrs of death x perfect unless 5 yrs have passed fr dec death and dec x retain any rights to those assets he had given away must be complete alienation and retain no interest – if put in own acct, for eg, shows tt not alienation which was indefeasible (he DID retain to himself some rights) income tax returns for eg will show interest received fr fixed deposits – if alive income tax controller will not oursue unless finds out tt interest HAS ben received but on death, bank acct transferred to name of son (took place within 3 yrs of death - gift) - MUST be declared for estate duty purposes. Ie everthing which is gift within 5 yrs MUST be decalred for estate duty. Ascertain ext of estate
draw up list of liab and debts o again impt for estate duty purposes o estate duty only leviable on net value of estate then prepare OS for probate
Intestacy Section 37 of the Probate and Administration Act Vesting of estate in Public Trustee in certain circumstances between death and grant of administration 37. —(1) Where a person dies intestate, his real and personal estate shall vest in the Public Trustee.
if no wil then look at order of priority tt person has or next of kin have to administer estate of deceased The a/m act is to be read with the Intestate Succession Act (in order to determine priority) o The first person to have priority is the spouse o The second person is the child (children) if any o The third persons are the parents. o The fourth persons are the brothers/sisters o The fifth are the nephew/nieces. o The sixth are the grandparents o The seventh are the uncles/aunts The a/m is in order to administer the estate. o If home available, then the estate vests into the govt. of Singapore o Must have advert. The Law Gazette is enough. o Name of deceased, date and firm’s have asking whether anymore has made a will o If large estate, then ok, maybe next so o It costs $70/$80 in Law Gazette o Sufficient to meet that obligation o If nothing, then no need to advertise. Can file and ask for letters of administration. priority o spouse(s) – eq ranking o children – eq ranking for all need to resolve among beneficiaries, among potential personal reps who to take out letters of admin o by ref to intestate succession act and probate and admin act and habing next of kin go to office o person who is going to apply to give certin undertakings to those eq entield
Letters of admin in intestacy 1. s37 probate and admin act – vesting of assets in public trustee Vesting of estate in Public Trustee in certain circumstances between death and grant of administration 37. —(1) Where a person dies intestate, his real and personal estate shall vest in the Public Trustee. (2) Where a testator dies and — (a) at the time of his death there is no executor with power to obtain probate of the will; or (b) at any time before probate of the will is granted there ceases to be any executor with power to obtain probate, the real and personal estate of which the testator disposes by the will shall vest in the Public Trustee with effect from the time specified in paragraph (a) or (b) in relation to each case. (3) The vesting by virtue of this section of any estate in the Public Trustee shall not, without more, confer or impose on him any power, duty, right, equity, obligation or liability in respect of the estate. (4) Any estate or part of an estate vested in the Public Trustee under subsection (1) or (2) shall cease to be so vested on the grant of administration in respect of the estate or part in question. Executor relies on will for title – grant of probate merely validates title For Las, grant of LA itself is title During interim period bet death of deceased and granting of LA, assets will best in public trustee of sg Notices to be served on intestate dceased may be served on public trustee But if proceedgs to be instituted againt intestate estate, next of kin or other proper persons shld be joined as def
2. Creditors actions against estate Creditors may join benef as def
Force them by citation to take out Las If not creditor himself may appy for Las for limited purpose of recovering debt Provided for in PAA After serving notice on CK, creditor can apply to beome PR for limited purpose
3. Adver for benef or creditors When distrib assets trustees have duty to ensure tt al creditor and persns with interest in estate are paid first If small fam and debts x large amts, may enq of benef But of prudent, advertise – s29 TA – can advertise in newsppr or govt gaxette inviting claims fr benef or creditors o After advertising, wait for 2 mths and sort out claims o Verify with benef before paying out Application for grant ROC – req application for letters of representation (probate and admin) o Req tt applic for grant of LRs to be made within 6 mths of death/deceased o O71 R5(6) – just because executor of estate named in will does not immediately mean tt he will be appted as executor – objn can be taken by beneficiaries tt he is not fit erson eg he may be a bankrupt – s130 BA – they cannot be appted as executors Application for grant (O. 71, r. 5) 5. —(1) Every application for a grant shall be by ex parte originating summons. (2) Within 7 days after filing the originating summons, the applicant shall file an affidavit verifying the information in the Statement in Form 172 and there shall be exhibited thereto — (a) a Statement in Form 172; (b) a certified true copy of the will; and (c) all other supporting papers as the Registrar may require. (2A) Every applicant for a grant or his solicitors shall — (a) conduct a search on the caveat book kept by the Registrar immediately prior to the filing of the summons; and (b) file a certificate in Form 173 together with the summons stating whether there are any caveats in respect of the estate of the deceased person. (2B) On an application for a grant of administration, the Statement in Form 172 must state whether, and, if so, in what manner all persons having a prior right to a grant have been cleared off, and whether any minority or life interest arises under the will or intestacy. (3) Where the deceased died domiciled outside Singapore, the Statement in Form 172 must state where the deceased died domiciled. (4) If the Statement in Form 172 states where the deceased died domiciled (whether in or outside Singapore) a statement as to the country in which he died domiciled may be included in the grant. (5) In every Statement in Form 172 — (a) where any person is named as a relative of the deceased, he must, if a lawful relative, be so described, and where the legality of any such relationship is alleged by virtue of any law or custom, such law or custom must be stated; and (b) where it is alleged that any person is entitled to share in the distribution of an intestate’s estate, it must be stated how such person is related to the deceased and whether he is the only or one of the next-of-kin and by what law or custom so entitled. (6) Where an application for a grant is, for the first time, made after the lapse of 6 months from the death of the deceased, the reason for the delay in making the application must be set out in the Statement in Form 172. Disqualification of bankrupt 130. —(1) In addition to any disqualification under any other written law, a bankrupt shall be disqualified from being appointed or acting as a trustee or personal representative in respect of any trust, estate or settlement, except with leave of the court. (2) Any disqualification to which a bankrupt is subject under this section shall cease when — (a) the bankruptcy order against him is annulled or rescinded; or (b) he is discharged under Part VIII. (3) Any person who acts as a trustee or personal representative while he is disqualified by virtue of subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 12 months or to both.
S8(1) probate and admin act – probate MAY be granted to any executor appted by will – therefore not oblig on part of assistant registrar to appt same person who has been named as such in the will
Grant of probate 8. —(1) Probate may be granted to any executor appointed by a will. (2) The appointment may be express or implied. (3) Subject to section 6, where more than one person is appointed an executor by a will, probate may be granted to one or more of the persons so appointed, without prejudice to a subsequent application by another or others of them for further grant or grants. Having collected the relevant date, prepare the papers To prepare both for filing with court and for submitting to commr of estate duty
DOCUMENTS REQUIRED FOR OBTAINING LETTERS OF REPRESENTATION [A] FOR COURT 1 2 and 3 are in same template 1. Ex-Parte Originating Summons for Probate (OS for probate) both probate and letters of admin; ex parte and non contentious - print out template on court’s website for OS and statement – form 172 filed with admin oath, death cert wick, statement,m checklist, OS and caveat searches – searches to be filed with HC and sub courts after clent given approval, affidavit by personal rep to be filed within week 2. Statement for Probate/Letters of Administration - queries as to whether will, who beneficiaries are, date of death and whether cert of will attached The application for grant of probate Must be one or all – up to max 4- of executors appted by will s6.1 PAA Provisions as to number of personal representatives 6. —(1) Probate or letters of administration shall not be granted to more than 4 persons in respect of the same property. (2) Letters of administration shall, if there is a minority or if a life interest arises under the will, be granted either to a trust corporation, with or without an individual, or to not less than 2 individuals. (3) The court in granting letters of administration may act on such prima facie evidence, furnished by the applicant or any other person, as to whether or not there is a minority or life interest, as may be prescribed by rules made under any written law for the time being in force relating to the courts. (4) If there is only one personal representative (not being a trust corporation) then, during the minority of a beneficiary or the subsistence of a life interest and until the estate is fully administered, the court may, on the application of any person interested or of the guardian, committee or receiver of any such person, appoint one or more personal representatives in addition to the existing personal representative in accordance with rules made under any written law for the time being in force relating to the courts. (5) This section shall apply to grants made after 1st January 1935 whether the testator or intestate died before or after that date. (6) For the purposes of this section, “trust corporation” means the Public Trustee or a corporation licensed as a trust company under the Trust Companies Act 2005. Statement filed to follow form 172a of appendix to rules with variations as case req s8 PPA and O71r17 o Note when preparing templates for OS and statement
If application made more than 6 mths after death, para added to state reason for delay O71 rule 5.6 All Deceased’s names to be stated in grant shld be set out in OS, statement and other cause papers
Be consistent Para added to state true name and reasons for including othr names Note tt names in OS and statement sld include names in death cert and will True namein O71r6 is tt stated in cert of extract fr register of deaths If name in will is diff fr name in cert then other name shld e included in OS, statement and other cause pprs
If no other names apart fr those set out in certand in will and set out in OS and statement then O71r6 x apply What ture name is If cert says tan ah kow @ tan ah tur – then OS and statement can be same; need not comply with o71r6 If name in cert is tan ah kow and will is tan ah kow @ tan ah tur – then name in OS and statement as tan ah kow @ tan ah tur – o716 x compliance
Name in cert is tan ah kow, name in will is tan ah tur; in OS and statement is tan ah kow @ tan ah tur – then need to add para reading – true name is tan ah kow but in will described as tan ah tur, threore nec to describe him as tan ah kow @ tan ah tur Para 1 of form 172a - Statement must set out residential address of deceasd and place where he died o Place f eath in statement to be exactly same terms as death cert o Also residential address o But if did not in fact lvie at address in death cert, then corr addess shld be stated in statement but indicate tt this diffes fr death cert o If not explained in statement then affidavit sworn by applicants to be filed explaining why addresses diff Domicile of deceased to be stated in para 1 of statement o Recall tt domicile is in country or law district o Sg is place of domicile but not UK which consists of numerous countries o If facts glaned fr statement and supporting docs raise doubt as to whether deceased had domicile, ourt may req affidavit to be deposed by applicants setting out facts on which statement as to deceasd’s domicile is founded If muslim, then add statement stating sch of law (mazhab) which deceased professed s113 admin of muslim law act Statement in form 172 must be verifie by oathy contained in affidavit swoen to or affirmed by each applicant O71rule 5(2) o To be sworn before Commissioner for oaths s68.2 SCJA or Court or Judge Notary public Consular officer of commonwealth country or Person having auth to administer oaths in commonwealth country (evidence to show such auth- by one of persons mentioned in O71r16) Identication nos of applicants and deceased person to be included in OS, statement and all other docs – para 30 supreme court PD; o92r2A
Applicatn for grant of letters of admin - Note proced for application for probate as for letters of admin – same pts Note also o Para 3 form 172b shld contain following partrs State of which deceased a citizen Relg of deceased inclu for muslims, his mazhab Marital status Enumeration of persons surviging him – note form 172e – all persons entitled to any part of estate shld be disclosed For chidren, state
• Name • Sex • Age or date of birth Regard to be had in deciding who benef are • Non muslim and died domiciled in sg – ISA s4 • Muslim and died domiciled in sg – inheritance cert issyed by syariah court under s115 admin of muslim law act • Outside sg – deterend by lex domicilii of movable property and law of sg for immovable property o Whether there is minority or kige interst arising under intestacy; if no state so; if yes then Names Ages Interests o Statement myst state whether and how persons with proer right to grant have been cleared off O71r5.2b Rr of each person with prior right to deceased shld be stated No reqt for rights of persons with eq rights to be cleared off But shld obtain renunciations of al lsuch persons snce reduce risk of disputes Clear off in two ways • Death – cert of extract – form M • By renunciation – form 174a by those with prior right shld be filed • If 2 applicants one of whm has prior right to al others, seoncd has lesse right, renunciations of persons with greater right than second applicant must be obtained and filed Where there are minors entitled to share of estat, grants of admin must be made to at least two indiv or trut corporation s6.2 PAA o If possible 2 benef of interstate estate shld aply as jt applicants to become jt administrators o If no second persons entitled to grant willing to become jt administrator, sole applicant may apy to have another erson appted as co administrator with him Person who applies for grant and obtains it is jt administrator; person may only apply if has some entitlement Co administrator is person who has no entitlement and is apted without having made application o If desired to add co administrator, para 7 of form 172(b) shld be included – rr of proposed administrator to deceased shld be stated in statement – para 8 and orig of consent in writing of prpsoed co administrator to be filed
3. Checklist for Originating Summons details asked – to answer on the form itself 3A. affidavit under O71 rule 5 (see above) to be affirmed or sworn by the PR where he declares tt what filed in 1, 2 and 3 are true – signed before commissionr for oaths must be someone from ANOTHER firm certiant hings tt must be stated otherwise application not granted. Must LIST ALL 4. -
where no estate duty payable, forms on item 4 to be filed in court – estate duty clearance done by court itself stats – 85 percent of estates are not dutiable but stll need to get clearance fr court and fr commr of estate duty to be filed in 7 days on obtaining clearance of first 3 items
g. h. i. –
Form SC1 - Statutory Declaration – self explanatory – declaring contents of form to fie are true. Diff forms for those who die as sg domiciles and domiciles of other countries. Form SC2 - Checklist for Singapore domicile Form SC3 - Checklist for foreign domicile Form SC4 - Schedule of Property for Singapore domicile Form SC4 - Schedule of Property (Annex A) and (Annex B) for Singapore domicile one for moveable and one for immovable - estate duty liability arises when estatae worth more thn 600,000 for movables. Where immovables, no duty after 9 million dollars. Form SC5 - Schedule of Property for foreign domicile Form SC6 - Supplementary Schedule of Property for Singapore domicile arises where one nt declared everything in earklier forms – file fresh form (fr sg domicile) Form SC7 - Supplementary Schedule of Property for foreign domicile Form SC8 - Notification of Amendment to the Schedule of Property/Supplementary Schedule of Property – can be mistakes fr mis-description of assets or value stated – need notification therefore
5. Extract from the Register of Deaths – – remember tt death cert fr hospital./ Police is not the original. – The official death cert of person is the death cert issued by registrar of Births and Deaths. And it is extract tt register tt has to be obtained. – Cert of extract fr register of deaths – form M of ergis of births and deaths rules sld be filed – Fill form and sentd to registrar of deaths who will give the extract on payment of $30 – If died outside sg then orig death cert fr auth of palce where he died shld be filed – If death cert not in eng then must be accompanied by translation certified by court interpret or verified by affidabit of person qualified to translate it – If x obtain death cert, then order of court stating tt deceased presumed dead with effect fr certain date is acceptable alterantive 6. Renunciation and Consent, if any – – executor may renounce right to be executor where will. Or where no will, person who applies has to be next of kin fr 7 classe of persons – see list on persons eniteld to apply - in order of proiority – if not will, thn spouse/ family/siblings can apply where testate, executor can file renunciation – renouncing his right to apply (word petition no more used) s3 probate and admin act req tt renunciation where more than one peron of eq priority can apply for letters of adminl have to file in court doc known as renunciation and consent by party not applying – sets out consent by person entitled to apply for letters of admin in favour of another eq entitled only reqd for persons having higher priority eg parents vs siblings but registrars may also req persons of eq priority to renounce and consent – O71 R 22 if deceased had family of many children, usu for eldest to apply for LA if infant benef, must have min of 2 admnistrators applyg for LA
Express renunciation 3. —(1) Any person who is or may become entitled to any probate or letters of administration may expressly renounce his right to such grant. (2) Such renunciation may be made — (a) orally by the person renouncing or by his advocate and solicitor, on the hearing of any probate application or probate action; or (b) in writing signed by the person so renouncing and attested either by an advocate and solicitor or by any person before whom an affidavit may be sworn. if person in will x take any steps, then any person entitled in family can then apply for grant of adminstartion letters with the will annexed (eg spouse, parent, brothers, sisters etc) before can apply, where executor named, have to ask executor to prove the will. If still indifferent and x renounce his right, then send in a application asking him to renounce right to apply
if sitl x bothered, he is deemed to hav ecoinstructivly renounced his right serve notice under s3 probate and admin act
where probate proved, and exector x approve or renounce or respond -< this amts to constructive renunciation of right to apply (see section 4 probate and admin act)
Constructive renunciation 4. —(1) Any person having or claiming any interest in the estate of a deceased person, or any creditor of a deceased person, may, without applying for probate or letters of administration, cause to be issued a citation directed to the executor or executors appointed by the deceased’s will, or to any person appearing to have a prior right to probate or letters of administration, calling upon the person cited to accept or renounce that right. (2) Any person so cited may enter an appearance to the citation, but if he makes default in appearance thereto, he shall be deemed to have renounced his right. (3) If, having appeared, the person so cited does not proceed to apply for probate or letters of administration, the person so citing may apply for an order that the person cited, unless he applies for and obtains a grant within a time limited by the order, shall be deemed to have renounced his right thereto, and an order may be made accordingly. Effect of renunciation 5. —(1) The renunciation, whether made expressly in the manner provided by section 3, or constructively in the manner provided by section 4, shall preclude the person so renouncing from applying thereafter for probate or letters of administration. (2) Notwithstanding subsection (1), the court may at any time allow the person so renouncing to withdraw his renunciation for the purpose of taking a grant, if it is shown that the withdrawal is for the benefit of the estate or of those interested under the will or intestacy.
if spouse left behind, she has first right to apply for grant application is for grant of letter of admin with will annexed => hybrid bet probate and letter of admin
administrator – not executor, which can only be retained in the will
Entitlement to apply 1. spouse 2. children 071 r 22 ROC – any of children can apply. No oblig to get consent of other siblings. a. but see template b. Just state whether persons entitedl in same class hav consented to the application fo the grant c. anomaly? Contradicts what law says d. but that means tedious proed – must get all their consents 3. where beneficiary in same class as person who applies – who lives elsewhere a. must apply for extension of time – give reasons – court will understand and privilege will be accorded Grants where 2 or more persons entitled in same degree (O. 71, r. 22) 22. —(1) A grant may be made to any person entitled thereto without notice to other persons entitled in the same degree. (2) A dispute between persons entitled to a grant in the same degree must be brought by summons before the Registrar. (3) Unless the Registrar otherwise directs, administration shall be granted to a living person in preference to the personal representative of a deceased person who would, if living, be entitled in the same degree and to a person not under disability in preference to an infant entitled in the same degree. (4) If the issue of a summons under this Rule is known to the Registrar, he shall not allow any grant to be extracted until such summons is finally disposed of. 7. Administration Oath – s28 PAA – to be taken on granting of any probate or letters of admin save where grantee is pbulci trustee or trust comp – in form 175 of rules and sworn by all proposed grantees in same way as affidavit – filed at sam time as OS – req all PRs to administer estate faithfully. Both intestate and intestate cases
contrast wht admin bond – for admin letters same as probate but ensure tt all proposed administrators and co administrators take admin oath
8. Administration Bond in Intestate cases (in the High Court but not the Subordinate Courts – unless there are infant interests or estate is worth more than $250,000) (for grants of probate security not normnally required) – after paymen of duty, EDC sends letter to registrar saying tt estate duty paid – can then extract grant of representation wheter of probate or letters of admin – for letters of admin – bond signed towards end of all formalities wrt grnat of letter of admin. Only in intestate cases tt must sign this admin bond. – Troublesome! Because PR has to prod two sureties who have to undertake tt admijstrartor. Will faithfully administer esateand render proper accts – before sureties execute bond, written applkic to be made to registry for aporivcal f sureties court generally accepts only sg citizens own each or more of following types if property: private immovable property; sole proprietorship business; share in partnership own acceptable property with toal value eq to gross value of estate after deducting liab – – Note qualifications required – sureties to be worth (net worth) assets eq to gross value of estate if man died, without wil, hbut with hevy mortgage debts, admin to prove 2 sureties whose net worth must be eq to gross value of estate
very difficult to fulfil!!!most pple msy be asset rich bu not cash if cannot find sureties, administrator himself to enter into admin bond
Sureties and Dispensation of sureties can be done if all creditor and benef of full age and cpacity consent to dispensation for infant benef, dispensation of sureties seldom granted unless estte is small and mother or close relative is person applying for letters of admin, on undertaking tt she will administer estate faithfully, honestly and in interest of all benf dispensatin of sureties – normally given – SIC supported by affidavit explaining why diff in getting two sureties o affidavit – tt made exhausitvinq o in ddition, 2 pple who have to consent to application for dispensation 1. beneficiares of estate 2. creditors of estate – if man died with mortgage loan, must get consent of bank if man died owing income tax, controller has to consent dispensed with if will because then no need admin bond which is only reqd if ma
BUT juris of courts have changed – ret of sureties to intestate estte – for Las granted by district courts, o In any estate 250000 and below, no need to get sureties (no need for admin bondd) o Once exceeds, will not need to See practice directions in website Must know! – registrar and beneficiaries may make trouble. Supreme court PDs PART XVI: ADOPTION AND PROBATE MATTERS TABLE OF CONTENTS Para Heading Page No. No. 128. Applications for adoption orders .......................................................PART XVI - 2 129. Applications for grants of probate, letters of administration or resealing of grant ...........................................................................PART XVI - 3 iling of originating summons and Statement .............................PART XVI - 3 F Filing of supporting affidavit .......................................................PART XVI - 4
mendment of originating summons or Statement .....................PART XVI - 5 A 130. Applications for dispensation of sureties for grants of Letters of Administration...................................................................PART XVI - 7 Electronic filing of application ....................................................PART XVI - 8 PART XVI - 2 129. Applications for grants of probate, letters of administration or resealing of grant (1) An application for the grant of probate, letters of administration or resealing of grant made on or after 1 January 2006 under Order 71, Rule 5 of the Rules of Court shall be made by originating summons with supporting affidavit. The supporting affidavit shall exhibit a Statement in Form 172 of Appendix A of the Rules of Court, a certified true copy of the will and all other supporting papers. Filing of originating summons and Statement (2) The following directions apply to the filing of the originating summons and Statement: (a) The originating summons and the Statement shall be submitted by entering the relevant information in the appropriate electronic template without attaching the documents in portable document format (PDF) format. (b) The following supporting documents must be electronically filed in the same submission as related documents, but separately from the originating summons: (i) in all cases, a certified true copy of the death certificate of the deceased; (ii) where there is a will, a certified true copy of the will; (iii) in the case of a resealing of a grant, a sealed certified true copy of the inheritance certificate; (iv) in the case of a Muslim estate, a certified true copy of the inheritance certificate; and (v) any other documents in support of the application required under the Probate and Administration Act (Cap. 251, 2000 Rev Ed), the Rules of Court or by the Court. No stamp fees will be charged for the filing of these documents. PART XVI - 4 (c) After the originating summons and Statement are filed, the original death certificate, original will, original inheritance certificate and sealed certified true copy of the foreign grant (if any) must be submitted to the Legal Registry of the Supreme Court by 4.30 p.m. on the next working day for verification. Where the original will has been retained in the custody of a foreign court, then a sealed certified true copy of the will by that foreign court must be submitted in place of the original. After verification, the original will shall be retained by the Legal Registry in order to comply with Order 71 Rule 47A. Filing of supporting affidavit (3) The following directions apply to the filing of the supporting affidavit: (a) The affidavit is to be filed within 7 days after filing the originating summons according to Order 71, Rule 5. (b) The following documents must be exhibited to the affidavit: (i) in all cases, the Statement, which shall be exhibited first; and (ii) the supporting documents referred to in sub-paragraph 2(c). (c) The Statement which is to be exhibited in the affidavit shall be the copy accepted by the Court through the Electronic Filing Service (EFS). (d) The affidavit must include the following averment:
“The deponent avers that the Statement exhibited herein as [insert exhibit number] is the same Statement that was generated by the Electronic Filing Service and no changes have been made. The contents entered into the Electronic Filing Service, which now appear in the Statement, are true and accurate to the best of my knowledge and belief.” (e) No stamp fees will be imposed for the filing of the supporting affidavit. PART XVI - 5 Amendment of originating summons or Statement (4) Where an applicant seeks to substitute the name of the administrator(s), add in further administrator(s) or to amend the name of the deceased appearing in the originating summons: (a) An application must be made by way of summons to amend the originating summons. The proposed amendments to the originating summons should be annexed to the summons application. (b) Where the application is granted, the party shall file the amended originating summons by entering the amendments into the electronic template within 14 days of the order or within the time directed by the Court. (c) The relevant amendments shall also be correspondingly entered into the electronic template of the Statement by the filing party at the same time that the amended originating summons is filed. (d) A supplementary affidavit verifying the information contained in the amended Statement must be filed containing the averment described in sub-paragraph (3)(d) and stating the reasons for the amendment, within 14 days of the order or within the time directed by the Court. (5) Where an applicant seeks to amend the Statement exhibited to the supporting affidavit and corresponding amendments are not required to be made to the originating summons, the amendments shall be entered into the electronic template of the Statement. The applicant shall file his supplementary affidavit exhibiting the amended Statement within 7 days and stating the reasons for amendment. (6) Where the amendments described in sub-paragraphs (4) and (5) are sought following the grant, the applicant must obtain leave of court to amend the originating summons and/or the Statement. The new grant shall not be extracted until after the filing of the amended originating summons and supplementary affidavits, if any, as well as the entry of the relevant amendments into the electronic template of the Statement. (7) The Court may reject any document which does not comply with the above directions. 130. Applications for dispensation of sureties for grants of Letters of Administration (1) An application for dispensation of sureties pursuant to section 29(3) of the Probate and Administration Act (Cap. 251, 2000 Rev Ed) shall be made by way of a summons supported by an affidavit sworn or affirmed by all the administrators or co-administrators stating: (a) the efforts made to find sureties and/or why they cannot be found; (b) that the estate duty is either paid, not payable, postponed or has otherwise been cleared; (c) who the beneficiaries are, their shares, ages and whether there are any minors as at the date of the summonsin-chambers; (d) the relationship of the administrators and co-administrators (if any) to the minors; (e) whether the estate has any creditors and the amount of the debt owed to them; and (f) any other information which may be relevant to the application. (2) A letter or certificate from the Commissioner of Estate Duties confirming the fact stated in sub-paragraph (1)(b) must be exhibited in the supporting
affidavit. (3) The consents in writing of all adult beneficiaries to the dispensation of sureties, duly signed in the presence of a solicitor or a person before whom an affidavit can be sworn or affirmed, must be filed. – to be given reasonably contemporaneously with filing of summons to ensure tt they really consent to dispensation (4) Sub-paragraphs (1) to (3) apply equally to applications for dispensation of sureties in cases of re-sealing of Commonwealth grants of Letters of Administration and grants from a court of probate in a country or territory, being a country or territory declared by the Minister for Law as a country or territory to which section 46(1) of the Probate and Administration Act applies. Electronic filing of application (5) Where the application is filed through the Electronic Filing Service (EFS), the supporting affidavit will have to be filed and the necessary consents to dispensation, certificate from the Commissioner of Estate Duty and all other exhibits must be book-marked and hyperlinked in the affidavit in the manner described in paragraph 47(2) of these Practice Directions.
Where benef x consent to dispensation, remedy is to go to court and ask for dispensation of consent of objecting beneficiary Other possib is to get sureties worth the value of the benef share – (so tt he is comforted) Summons shld just pray for order tt sureties to admin bond be dispensed with; unnec to pray for leave to execute admin bond for gross amt of estate If granted, adminrs and co adminrs may then sign bond before commissionrr for oaths If order not granted or only for part of estate, sureties must be obtained for value of estate or such aprt iro which sureties are reqd and admin bond shld be executed by grantee and sureties
9. Will - original to be submitted – Not certified true copy! Note that phiotocopy or duplicate not acceptable Only sitn where copy may be allowed is under s11 PAA – will poved in non sg court and roperly authenticated copy of will is produced – See also proviso to O71r46.1 – application shld be sought by way of OS supported by affidabvit complying with r46.2 mad returnable before judge Formal validity o Before orig will filed and certified true copy is filed with OS and statement, will shld be carefully perused - Desired applicants appted the executors of will – may be express or implied s8.2 PAA Can still obtain probate if wil on proper construction impliedly appts persons as executors Basic rule is tt is impliedky apted is will directs hi to Collect assets of deceased Pay funeral expenses and debts and Discharge legacies If no executors appted then grant of letter of admin with will annexed shd be sought o Will properly executed If before 26 june 1992 Donucile of deceased at time of death ascertained Rules of lex domicilii governing proper execution of will applied S5 will act x apply s5.9 wills act If after that date S5 wills act applies Internal law of relevant terriutories and states on proper execution of will applied Showing proper executin under sg law If decided tt law of sg on execution of will applies, then will shld be checked to see if contains attestation clause stating (s6 will act read with O71r9)
Will signe by testator or by some other person in his presence and by his direction o Will signed by testator in presence of 2 or more witneses present at same time o Witness subscribed will in presence of testator o If attestation clause x contain such statements then affidavit filed under 071r9 reqd Showing proper exeuctin under foreign law Affifavit compolying with o71r6 stating relevant law of country to be filed Will must appear to comply wiuth law of country If will not prima facei in compkuance then affidavit deposed by person with personal knowledge shlkd be filed stating fact smaking will properly executed under applicable law Must be clear tt testator had knowledge of contents of will at time of execution Doubt may arise if appears fr signature of will tt testator cld not read eng or not reaonalby well; or if signature very faint or signed with shaky hand Then see if signed sttemetn appended on by one of attesting witnesses stating tt o Testator illiterate or blind or cld not understand eng o He cld understand a partr lang o Contents of wi explained to testator n lang he understood and o Testor appeared to fully understand contents of will before signing - If no such statement then affidavit to same effect by attesting wtness or person present at execution to be filed – epxlnaation given for presence of facts tt raise doubt o If will not properly executed of insuff to show tt he understood contests of will then estate wil fall into intestacy Wills in other lang o Eng transaction to be annexed to orig and every copy filed in court Be certified by court interpreter or Verified by affidavit of person qualified to translate it – he must state qualifications for tralsting will Deceasd domiciled out of sg – proviso to o71r25 o Then if will in eng, probate granted to exeucotr expressly or impliedly aptped as executor in will o If only imoalbe property in sg then grant of probate may be made limited to such immocable property Otherwise person to whom grant made must be determined by lex domicilii O71r25 071r25a – doc evidencing entrustment of admin of estate to applicant by court of country of domicile r25b – affidaqvit complying with o71r16 – settint ou position at law in country of domicile and stating tt on facts of case in statement, applicant is person entield to administer esate by law of palce where deceasd died o
Where deceased made will but will misplaced, what to do in such cases can validity of copy be proved? Section 9 probate and admin act – Where will lost, etc. Probate of copy or draft, or of contents 9. Where a will has been lost or mislaid after the death of the testator, or where a will cannot for any sufficient reason be produced — (a) if a copy or draft thereof is produced, and it appears that the copy or draft is identical in terms with the original, probate may be granted of that copy or draft, limited until the original is admitted to probate; or (b) if no such copy or draft is produced, probate may be granted of the contents of the will, if they can be sufficiently established, limited as above described.
Where will destroyed, etc. Destroyed will 10. Where a will has been destroyed, otherwise than by the act or with the consent of the testator, probate may be granted of a copy or draft thereof, or of the contents thereof, if they can be sufficiently established. Where will proved and deposited outside Singapore Administration with copy annexed of authenticated copy of will proved abroad 11. When a will has been proved and deposited in a court of competent jurisdiction situated beyond the limits of Singapore, and a properly authenticated copy of the will is produced, probate may be granted of such copy or letters of administration may be granted with a copy of such copy annexed. proced for proving such copies of wills as valid wills – see order 71 rule 46
Applications in respect of nuncupative wills and of copies of wills (O. 71, r. 46) 46. —(1) An application for an order admitting to proof a nuncupative will, or a will contained in a copy, a completed draft, a reconstruction or other evidence of its contents where the original will is not available, may be made to the Court by summons: Provided that where a will is not available owing to its being retained in the custody of a foreign court or official, a duly authenticated copy of the will may be admitted to proof by virtue of section 11 of the Act without any such order as aforesaid. (2) The application must be supported by affidavit setting out the grounds of the application and by such evidence on affidavit as the applicant can adduce as to — (a) the due execution of the will; (b) its existence after the death of the testator; and (c) the accuracy of the copy or other evidence of the contents of the will, together with any consents in writing to the application given by any persons not under disability who would be prejudiced by the grant. Copies of wills – lawyers used to use carbon ppr – lawyers will open sep file (master file for wills) – so tt u know where will for Mr X is. Not all copies of wills tt can be proved to probate o For copy to be proven as valid will, must prove that that copy was in proper custody and it contained in fact the wishes of the deceased o Therefore affidavit in support of claimhas to be filed o That affidavbit filed together with application by way of OS o So take out sep OS to declare copy (before items above) to declare will of deceased Forms of copies? o Deceased may have executed will and kept original in safe deposit box – may have made photocopy of will and kept in personal file o Deceased dies – safe deposit box opened and no will eg wife dumping away will – because wld get more oout of intestate succession instead o Photocopy to be proven o Orig copy and carbon copy Lawyer to get client to execute both copies Give original to cient and keep copy in file *lim boon meng case Presumptn in law tt if will made very long ago, tt will may be revoked and new will made So to prove tt 1. man made will 2. authetnci copy of will 3. that man did not revoke his will and thereby rebut presumptn tt will may have been revoked Hotly contested Hearing lasted 5 days Copy declared to be valid and authentic will of deceased Good here because of diligent lawyer who kept copies of will bUT may be carbon copy/ photocopy NOT signed. Need to prve tt unsigned copy is will which deceased had executed Has copy been kept in his custody all this while?
10. Syariah Court President's Certificate on share entitlement (Muslim Estates) Administration of muslim law act applies
Muslim estates – to get cert fr president of syriah court stating who are benf of estate and hwat fractional shre they take in the estate How does president know who are benef? o Relies on info fr PR ie fr u as lawyer – list out wives, chldrn eet, male and female, or who are persons entitled. Muslim x dispose of entire estate freely by will o Will must compy with formalities in wills act and probate and admin act o For distribution, to follow syriah law Muslim cannot give away except what the Syariah court stipulate *There are 3 possible way 1. Give it away during his lifetime 2. Get consent of Islamic heirs 3. Sign undertaking of renouncement Must file inheritance certificate o Issued by president of syriah court o Registrar of civil court guided by inheritance cert when determining who benef are and what proportions they take - only persons related by blood have rigvht to estate inintestate cases In testate cases, testator can give 1.3 of estate away to anyone he likies except tt c alter quatum tt Islamic heirs can get When give info to president, he will give cert and in letter, also mention which sch of Islamic law the deceaed belonged to o Two main schs – sheers and sunis o Malays in sg come under shafees o Indian musims come under hannafi (subset) (if fr Bombay, then may belong to sheer sch) o Inheritance wise, formula given (1/8 to wife etc) will apply Relevant AMLA Provisions for Flowchart Annex 1 Section 110, 111, 112 & 115 of AMLA Saving of distribution of Muslim estate by will 110. Nothing in this Act shall be held to prevent any Muslim person directing by his or her will that his or her estate and effects shall be distributed according to the Muslim law. Disposition by will to be in accordance with Muslim law 111. —(1) Notwithstanding anything in the provisions of the English law or in any other written law, no Muslim domiciled in Singapore shall, after 1st July 1968, dispose of his property by will except in accordance with the provisions of and subject to the restrictions imposed by the school of Muslim law professed by him. (2) Nothing in this section shall affect — (a) the provisions of the Wills Act (Cap. 352), other than section 3 thereof; (b) the provisions of the Probate and Administration Act (Cap. 251); or (c) the will of a Muslim dying before 1st July 1968. Distribution of Muslim estate to be according to Muslim law 112. —(1) In the case of any Muslim person domiciled in Singapore dying intestate, the estate and effects shall be distributed according to the Muslim law as modified, where applicable, by Malay custom. (2) This section shall apply in cases where a person dies partly intestate as well as in cases where he dies wholly intestate. (3) In the case of a Malay dying intestate, the court may make an order for the division of the harta sepencarian or jointly acquired property in such proportions as to the court seems fit. Inheritance certificate 115. —(1) If, in the course of any proceedings relating to the administration or distribution of the estate of a deceased person whose estate is to be distributed according to the Muslim law, any court or authority shall be under the duty of determining the persons entitled to share in such estate or the shares to which such persons are respectively entitled, the Syariah Court may, on a request by the court or authority or on the application of any
person claiming to be a beneficiary and on payment of the prescribed fee, certify upon any set of facts found by such court or authority or on any hypothetical set of facts its opinion as to the persons who are, assuming such facts, whether as found or hypothetical, entitled to share in such estate and as to the shares to which they are respectively entitled. (2) The Syariah Court may, before certifying its opinion, require to hear the parties on any question of law, but shall not hear evidence or make findings on any question of fact. (3) In any case of special difficulty, the Syariah Court may refer the question to the Legal Committee of the Majlis for its opinion and shall, if such opinion be given, certify in accordance therewith.
The relevant act governing this is the Intestate Succession Act (“ISA”). The provision of the ISA, which should be noted, is: • That the ISA does not apply to the estate of a Muslim who died intestate. Hence, the importance of first asking if the intestate was a Muslim domiciled in Singapore at the date of his death.
Section 2 of the ISA Application. 2. Nothing in this Act shall apply to the estate of any Muslim or shall affect any rules of the Muslim law in respect of the distribution of the estate of any such person. 11. Certificate on Caveats - Form 171 or 173 for intestate cases Benef may file caveat claiming tt no grnat shall ve made without they being informed Effect of caveat Once former papers are ready, make search in probate register and find if any caveat lodged by anyone - If no one filed then file cert on caveat Must be made 24 hrs before filing pprs itemized as 1 to 10 and 12 2 occasions where need to fie cert n cqveat o 1, when apply (all forms ready and inform registrar tt no caveat) o 2. at end of all probat formalities and abt to extract grnt – another cert stating tt no caveat filed in probate registry because in between, pple may have filed avoid such hiccups 12. Affidavit by sureties verifying their financial worth (in Intestate cases) - if required by the Registrar send leter to courts say tt these are 2 sureties – give full name and address proposed. Mention in letter how much worth registrar wil ask for affidavit verifying worth of both sureties - usu where deceased died intestate, just make application for dispensation of sureties – don’t bother abt this!!!! Too troublesome form 172 IF MORE THAN ONE EXECUTOR s8.1 must state tt applicant os one of executors named in will and grant prayed for must be with leave rserved to other executors to prove will if other executors died then state in statement and cert of extract fr register of deaths form M shld be filed - if other executors have renounced probate, stated in statement and renunciation in form 174b to be field o renunciation shld be sworn in affiavit Will may appt 2 or more executors X req other executors to prove at same time 1 executor can go ahead and prove the will can then extract grant applic will say tt has been given grant with leave reserved for co executor to come and prove the will
diff bet exec and administrator – executor can act on behalf of estate solely but administrator cannot – need to join other administrator together
[B] FOR ESTATE DUTY DIVISION at same time as filing forms with court, also to simult file doc with commissionr of estate duties - here – dutiable estate 1. Estate Duty Return – soliciting certificate of payment or non liability issued by registrar
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estate duty act req tt estate duty forms be filed within 6 mths of person dying setting out all dutiable assets – movable assets wherever situated and all immoveable property in sg if deceased domiciled in sg when he died Form A or B (reproduced in manual page 326) / Forms A1 to 3 (supplemental to Form A; see page 344 in the manual). This affidavit should be filed within 6 months of a person dying. This process should be set in motion as soon as possible since the Registrar of the Court will not issue letters of representation till the Commissioner of ED has given his certificate to the court. Set out below are the types of affidavit one may file with the Commissioner of ED: Where estate not dutiable and comprises only certain types of assets, filing of estate duty forms done at sub courts itself Form A deals with assets of persons who died domiciled in Singapore and who had no assets outside Singapore. Also used by persons who die domiciled outside Singapore but who had assets in Singapore. Form B deals with assets of persons domiciled in Singapore who also had assets outside Singapore. C – jtly held property and gifts Form A1 refers to persons who died domiciled in Singapore with only 1 ppty, CPF money, shares in public Co., all of which when added together form not more than $3m. Forms A2-3 are supplemental. Form A2 is used where the deceased owns shares in more than 2 companies whose value is not more than $3m. Form A3 when there is more than 1 residential ppty, supplemental as well. If deceased had shares in Pte. Co.s, Forms A1-A3 cannot be used, must use Form A or Form B.
EDC recently introd another form of affidavit wher value of estate is below 3 million dollars and deceased had no assets outside sg Since 2001, estate duty affidavits replaced by estate duty returns tt do not req affirmation or swearing before commissioner for oaths But sep stat deckarion to be filed by PR affirming tt contenst of estate duty return are correct
2. Observations Form IR332 – appendix 3 Observations Form is a questionnaire issued by Commissioner of ED which asks PR various matters such as whether deceased operated any joint bank accounts. If so, must mention a/c no. and the details. Jt acct qn is impt because if he did so, then need not go through clearance of estate duty Doctrine of survivorship Survivor can file notice eof death with sg land authority and get property registered in her name Commissioner req truthful disclosure of all qns posed Must answer truthfully, otherwise perjury and penalty can be imposed on estate if untruthful statements made or questions ≠ answered properly. Landed poperty – IR312 known as sched of immocable peroty – appendx 4 – to list al anded properties the deceased ha and reqd to set values of properties Where not dutiable, simplified forms available – to be filed in registry of sub courts and not with commission of estate duties 3. Letters of confirmation of deceased's accounts from financial institutions
These letters are necessary as accounts operate up to time of death…for savings a/c, interest payable up to this point. To find out what kind of trsnacitons deceased carried out with bank accts Will show whether any large withdrawals Defined as any amt exceeding 10,000 If so, estate duty commissionr will query what these withdrawals were for write to each bank or other financial institn eg trustee bank, wealth managemnrt company – will get letters of confiratmion fr here also how much deceased left behind at date of death in partr acct if man of means, then may need to furnish commr with 3 yrs bank statements as well as tax payer don’t need to frnish without being asked 4. Three years' accounts of businesses sole props, partnerships, private limited comp to find out how much he is worth for first two latter two – to value shares of company – see how much commr works out value of shares belonging to estate to est share price When he dies what is he worth? Assessed by looking at accounts, balance sheets. There is re-evaluation done 5. Copies of documents itemised as 1, 2, 5 and 9 under A above What u have filed with court – ex perte OS, stemnt of probte of letters, register of death, will To show nture and ext of estate, and what kind of person deceased was 6. Schedule of Immovable Property This form must be filled to describe the ppty owned by the deceased. Various details needed, including open market value. Landed property or other immovable peroptu Extemptin of property only to residential property (dwelling houses) – only they are exempted up to value of 9 million dollars, anything above that is dutyable Warehouses, shop units etc not exempted – they are added, only exemption of 600,000 is available Note tt commr only one division Also property tax division – also valuers there What is value of property – do u need to appt valuer to disclose actual value of property Don’t need to But how else to determine? Look at classified columns of newspprs – similar property may be advertised for sale – or reent tranation in neighbrouhood of house – can cite tt as value When doing so, deduct about 5 to 10 percent – sellers always ask for higher price. This will reconcile the two values use discretion as to whether to file valuation report where house is some obscure bungalow whose valkue x be gotten fr ads, then need to use report
Schedule of Movable Property 1. Can find in the manual 2. Description of the property must be given 3. Nature of occupancy. These details must be provided for as in most cases, as people mostly owe residential property. 4. Some, partnerships firms, they have a bad habit of borrowing money on the property in question. 7. Valuation reports on property, jewellery, antiques, paintings etc. Valuers in Singapore familiar with how to value these items. Declare? Discretion Where very valuable, then oblig to disclose No need to bother if merely a few
But where vault fulls of jewelery, when filing estte duty of returns, must disclose among the assets, the jewellery Write to bank tt for estate duty prspoe to make list – bank opens it, take out items in presence of bank offier and itemise them If eztensive, then take valuer with you Most auctioneer firms have valuers of jewllery Make list with value Make copy of bank and estte – ank officer to sign and u sign it
Only after this, you can extract grant of LRs
STEPS TO BE TAKEN TO OBTAIN PROBATE OR LETTERS OF ADMINISTRATION UPON DEATH 1. To obtain Probate: (a) Apply for certified true extract from the Registrar of Deaths Certificate of death issued by hospital not sufficient (b) Obtain original of the will and determine who the executor is
Apply by OS to the appropriate Court for a Grant of Probate. If value of estate is $ 3 mil or less, petition at Sub-Cts. - If value is > $3 mil, petition at HC. S26 and s2 sub courts act Not wrong to apply for grant in HC for estae valued at leass than 3 million or even 250000 (district court limit for matters other than probate applications – s2 s4b c64rts act) But court fees payable for probate proceedings in sub courts involv estates valued at more than 250000 same as if proceedings brought in high court Together with OS, admin oath, checklist, caveat searches, statement and affidavit also to be executed by executor/administrator by which he undertakes to admniterestate truthfully and render proper accts Administration Oath (s29 PAA) to be executed by the executor to ensure truthful administration of the estate and render proper accounts. .
(e) Estate Duty Return to be submitted to the Commissioner of Estate Duties. Full particulars of all the property passing on the death of deceased. If small estate and asset holding nmot extensive then specifed form,s to be filed instead of estate duty return - Observations Form (a questionnaire) should be duly filed with the Commissioner together with Schedule of Immovable property stating location of property, area and value (f) Submit letters confirming credit balances in financial institutions, mortgage debts payable and outstanding etc… OS to court will be heard a few days after filed if the Registrar needs to clarify any matter. But normally granted within a week of filing and counsel presence not nec. Probate cannot be extracted until Commissioner of Estate Duties has certified that estate duty has been paid or that no estate duty is payable. Where este duty subst and duty x be raised witout selling assets, cert obtainable fr commr postponing payment – enabling PRs to deal with asets of deceased and raise nec funds Extraction fr court after estate duty formalities Duties of executor come to an end after distribution of estate is completed.
COURT Probate applications usu heard in HC before assistant registar – list of probate matters divided into 2 parts o Applications brought by way of OS for grants of ar types o Applications brought by way of summons for var orders – most common being for dispensation ofsureties to admin bond High court has juris to grant probates of wills and to alter or revoke such grants s17f SCJA regardless of value of estate o But for aoll applications for grants in HC save for re-sealing of overseas grants, applicant to state whether value does or does not exceed in vale 3 million to best of appiocant’s knowledge, info and belief – para 2 of forms 172a and b of Rules o All applications for resealing of grants made by commonwealth and other foreign courts t be filed in HC o Other cases where convenient to file in HC – Wil for part of estate and rest falls into intestacy, and eihte rportion eceeds 3 milion – apication for both grants shkld be in HC Cases of double probate – first obtained in hc Sitn involving unadministered estates where orig grant obt in HC Caklue of estate for deciding court not same as calue of property passing on deathg o deceaed defined in s8 EDA o Whether district court had juris – assess alue of all deceased;s movable and immovable property in sg exculsive of property held as trustee and not benefiiarlly and without deducing vcalue of debts deceased owed Applicant not present in sg Letters of administration with will annexed may be granted to attorney of absent executor 14. Where an executor appointed by a will is absent from Singapore, and there PROVISO 1 is no other executor within Singapore willing to act, letters of administration with the will annexed may be granted to a duly authorised attorney of the absent executor, limited until he obtains probate for himself, and in the meantime to any purpose to which the attorney’s authority is limited. note the two provisos above and below;
Grants to attorneys (O. 71, r. 26) 26. Where a person entitled to a grant resides outside Singapore, administration may be granted to his lawfully constituted attorney for his use and benefit, limited until such person shall obtain a grant or in such other way as the Registrar may direct: Provided that the attorney must file a certified true copy of the power of attorney with the originating summons or prove that he has deposited it or a certified copy of it in the Registry of the Supreme Court in the manner provided by the Conveyancing and Law of Property Act (Chapter 61): PROVISO 2: And provided that where the person so entitled is an executor, administration shall not be granted to his attorney without notice to the other executors, if any, unless such notice is dispensed with by the Registrar. Grant to attorney of absent person entitled to letters of administration 15. Where any person to whom letters of administration with the will annexed might be granted under section 13 is absent from Singapore, letters of administration with the will annexed may be granted to his duly authorised attorney, limited as described in section 14. Letters of administration to attorney of person entitled 19. Where a person entitled to letters of administration in case of intestacy is absent from Singapore, and no person equally entitled is willing to act, letters of administration may be granted to an authorised attorney of the absent person, limited until he obtains a grant to himself 2. To obtain Letters of Administration: (Differences in procedure between probate and letters of administration in italics) (a) Apply for certified true extract from the Registrar of Deaths
(b) Ascertain who has the prior right to petition – priority of dependent on entitlement is set out in the ISA. (c) Petition to the appropriate Court (conditions similar to that of obtaining probate). (d) Administration Oath will have to be executed by administrator to ensure truthful administration the estate and render proper accounts. (e) Minority interest (if applicable) – leaving behind children under 21. Co-administrator or joint administrator will be required Co-administrator or joint administrator’s prior written consent required and to be filed in court. Petitioner would have to pray in his petition that the Letters of Administration be granted to him and to his co-administrator or joint administrator. (f) Prepare Estate Duty return and Observation Form together with Schedule of Immovable property.
(g) Submit letters confirming credit balances in financial institutions, mortgage debts payable and outstanding etc… (h) Case will be heard 3 weeks later if the Registrar needs to clarify any matter. But normally granted within a week of filing. Letters of Administration cannot be extracted until Commissioner of Estate Duties has certified that estate duty has been paid or that no estate duty is payable. (i) (j) Extraction Sureties (usually 2) required to ensure proper administration and distribution of assets. Sureties must be worth the same value as the aggregate value of the estate. Sureties to sign a bond undertaking to ensure that the administrators will truly and honestly administer the estate and render proper accounts.
Duties of administrator come to an end after distribution of estate is completed. Application Statement filed for grant of letters fo admin to follow form 172(b) of appendix A to rules In choosing applicants regard to be had to persons with prior or better ight to grant In determinig rights o Entitlemet f persons to grant where deceased diedd dpmiciled in sg to be dtermiend based on s18 PAA: o Not specified expressly manner in whch rights to be determined Letters of administration on intestacy 18. —(1) When a person has died intestate, the court may grant letters of administration of his estate. (2) In granting such letters of administration the court shall have regard to the rights of all persons interested in the estate of the deceased person or the proceeds of sale thereof, and in regard to land settled previously to the death of the deceased, letters of administration may be granted to the trustees of the settlement. (3) Any such grant of letters of administration may be limited in any way the court thinks fit. (4) Without prejudice to the generality of subsection (2) — (a) letters of administration may be granted to the husband or widow or next of kin or any of them; (b) when such persons apply for letters of administration, it shall be in the discretion of the court to grant them to any one or more of such persons; (c) when no such person applies, letters of administration may be granted to a creditor of the deceased; (d) in any case where — (i) the next of kin of any person dying intestate, or the greater number of such next of kin, so desire; or (ii) no next of kin or creditor or other person appears and makes out a claim to letters of administration, letters of administration of the estate and effects of the intestate may be granted by the court to such person as the court thinks fit for the purpose. (5) Nothing in this section shall affect any law by which special provision is made regarding the estates of persons of a particular religion or race.
For non muslims – ISA applied to determine benef and shares under intestacy; oersons wit larger shares will have prior right to apply; eq shares eq right o Shares of muslims set out in inheritance cert in syariah court under s115 admin of muslim law act For female deceased domiciled in sg who was wife or muslim, entitlement to grant of letters of admin shld be determined by applying s117 admin of muslim law act Where deceased not domiciled in sg, entitlement determed by applying )71r25 in aamew manner as applic for grant of probate o If 071r25b relied on, then affidavit complying with r16 to set out who persones entitled to admintster eate by law of place where deceased die o Not enough to ujust set out share entitlements o But seful to state benef under estate and share enttlenents since nec to complete para 3 of form 172b o Persons entitled under lex domicilii shld be applicants o
Apptment of executor or administrator Once filed, OS will come up for hearing in 1 or 2 wks Solicitors to attend before assistant registrar hearing probate applicants At hearng registrar will give order – usu ‘order in terms’ of application made o For probate, apptg executor o For intestacy, apptg applicant as administrator Registrar may req proof tt person applying is entitled to what he is apply for o Will – orig to be deposited and proved to be properly executed o If deltions o interlineations or signatures not legible or if witnesses not properly described then registrar entitled to ask for proof of who attesting witnesses were and whether will properly executed Will must express intention of testator/ be voluntary – if signature very feeble then need to prove tt he had testamentary capacity o Registrar may req tt there b affidavit of due execution filed to veridy wll o Prepare and file this when fiing OS If executor dies after proving will but before extraction, executor’s executor ay step into his shoes and extract probate in etate the probate of which deceasd executor not yet extracted s25 civil law act After application for grant is allowed, applicant may apply to extract grant – by way of Request o Only after estate duty matters conulced and nec papers forwarded to registry of supremne court by commr of estate duties o Also sol must conduct search on probate caveat book to see if any caveats in force against estate of deceased – O71r37(6A) Proceedings Regarding Probate Matters o Contentious proceedings O72 RCO – contentious o When competing claims put in by executors or b benef who want to be administrators against others who claim same right O71 ROC - non contentious ORDER 72 CONTENTIOUS PROBATE PROCEEDINGS Application and interpretation (O. 72, r. 1) 1. —(1) This Order applies to probate causes and matters and the other provisions of these Rules apply to those causes and matters subject to the provisions of this Order. (2) In these Rules, “probate action” means an action for the grant of probate of the will, or letters of administration of the estate, of a deceased person or for the revocation of such a grant or for a decree pronouncing for or against the validity of an alleged will, not being an action which is non-contentious. (3) In this Order, “will” includes a codicil. Requirements in connection with issue of writ (O. 72, r. 2) 2. —(1) A probate action must be begun by writ, and the writ must be issued out of the Registry.
(2) Before a writ beginning a probate action is issued it must be endorsed with a statement of the nature of the interest of the plaintiff and of the defendant in the estate of the deceased to which the action relates. (3) A writ beginning an action for the revocation of the grant of probate of the will, or letters of administration of the estate, of a deceased person shall not be issued unless a citation under Rule 7 has been issued or the probate or letters of administration, as the case may be, has or have been lodged in the Registry. Service of writ out of jurisdiction (O. 72, r. 3) 3. —(1) Subject to paragraph (2), service out of the jurisdiction of a writ, by which a probate action is begun is permissible with the leave of the Court. (2) Order 11, Rule 2, shall apply in relation to an application for the grant of leave under this Rule. Intervener in probate action (O. 72, r. 4) 4. —(1) A person not a party to a probate action may apply to the Court for leave to intervene in a probate action. (2) An application under this Rule must be made by summons supported by an affidavit showing the interest of the applicant in the estate of the deceased. (3) An applicant who obtains leave to intervene in a probate action shall not be entitled to be heard in the action unless he enters an appearance therein. (4) Where the Court grants leave under this Rule, it may give such directions as to the service of pleadings, the filing of an affidavit of testamentary scripts or other matters as it thinks necessary. Citation to see proceedings (O. 72, r. 5) 5. —(1) On the application of the plaintiff, or of any other party who has pleaded in a probate action, a citation may be issued against any person not a party to the action who has an adverse interest to the applicant notifying him that if he does not enter an appearance in the action judgment may be given therein without further notice to him. (2) Where a person on whom a citation under this Rule is served fails to enter an appearance in the action, the party on whose application the citation was issued shall not be entitled to be heard at the trial of the action without the leave of the Court unless he has filed an affidavit proving due service of the citation on that person. Entry of appearance (O. 72, r. 6) 6. —(1) The office for entry of appearance in a probate action is in all cases the Registry and Order 12, in its application to such an action, shall have effect accordingly. (2) Without prejudice to paragraph (1), Order 12, Rules 1, 2 and 3, shall apply to the entry of appearance by a person authorised to intervene in a probate action, and by a person cited under Rule 5, as if — (a) that person were a defendant; and (b) the parties to the action (in the case of an intervener) or the party at whose instance the citation was issued (in the case of a person cited) were the plaintiff. Citation to bring in grant (O. 72, r. 7) 7. In an action for the revocation of the grant of probate of the will, or letters of administration of the estate, of a deceased person, a citation against the person to whom the probate or letters of administration, as the case may be, was or were granted requiring him to bring into and leave at the Registry the probate or letters of administration, as the case may be, may be issued on the application of the plaintiff. Citations (O. 72, r. 8) 8. —(1) A citation under Rule 5 or 7 must be issued out of the Registry and must be settled by the Court before it is issued. (2) Before such a citation is issued an affidavit verifying the statements of fact to be made in the citation must be sworn by the person applying for it to be issued: Provided that the Court may in special circumstances allow the affidavit to be sworn by that person’s solicitor. (3) Issue of a citation takes place upon its being sealed by an officer of the Registry. (4) Without prejudice to Order 62, Rule 5, a citation under Rule 5 or 7 must be served personally on the person cited. (5) Service out of the jurisdiction of a citation under Rule 5 or 7 is permissible but, in the case of a citation under Rule 7, only with the leave of the Court. (6) Order 11, Rule 2, shall apply in relation to an application for the grant of leave under paragraph (5). (7) An order granting leave to serve a citation under Rule 7 out of the jurisdiction must limit a time within which the person to be served with the citation must comply. (8) Order 11, Rules 3, 4 and 6, shall apply in relation to a citation under Rule 7 as they apply in relation to a writ. Affidavit of testamentary scripts (O. 72, r. 9) 9. —(1) Unless the Court otherwise directs, the plaintiff and every defendant who has entered an appearance in a probate action must swear an affidavit — (a) describing any testamentary script of the deceased person, whose estate is the subject of the action, of which he has any knowledge or, if such be the case, stating that he knows of no such script; and
(b) if any such script of which he has knowledge is not in his possession or under his control, giving the name and address of the person in whose possession or under whose control it is or, if such be the case, stating that he does not know the name or address of that person; and any such script which is in the possession or under the control of the deponent must be annexed to his affidavit. (2) An affidavit required by this Rule (together with any testamentary script) must be filed within 14 days after the entry of appearance by a defendant to the action or, if no defendant enters an appearance therein and the Court does not otherwise direct, before the action is set down for trial. (3) Where any testamentary script required by this Rule to be filed or any part thereof is written in pencil, then, unless the Court otherwise directs, a facsimile copy of that script, or of the page or pages thereof containing the part written in pencil, must also be filed and the words which appear in pencil in the original must be underlined in red ink in the copy. (4) Except with the leave of the Court, a party to a probate action shall not be allowed to inspect an affidavit filed under this Rule by any other party to the action, or any testamentary script annexed thereto, unless an affidavit sworn by him containing the information referred to in paragraph (1) has been filed. (5) In this Rule, “testamentary script” means a will or draft thereof, written instructions for a will made by or at the request or under the instructions of the testator and any document purporting to be evidence of the contents, or to be a copy, of a will which is alleged to have been lost or destroyed. Default of appearance (O. 72, r. 10) 10. —(1) Order 13 shall not apply in relation to a probate action. (2) Where any of several defendants to a probate action fails to enter an appearance, the plaintiff, upon filing an affidavit proving due service of the writ on that defendant may, after the time limited for appearing, proceed with the action as if that defendant had entered an appearance. (3) Where the defendant, or all the defendants, to a probate action, fails or fail to enter an appearance, and none of the persons (if any) cited under Rule 5 has entered an appearance, then, unless on the application of the plaintiff the Court orders the action to be discontinued, the plaintiff may after the time limited for appearing by the defendant apply to the Court for leave to set down the action for trial. (4) Before making an application for the grant of leave under paragraph (3) the plaintiff must file an affidavit proving due service of the writ on the defendant and of the citation, if any. (5) Where the Court grants leave under paragraph (3), it may order the plaintiff to file an affidavit of testamentary scripts under Rule 9. Service of statement of claim (O. 72, r. 11) 11. The plaintiff in a probate action must, unless the Court gives leave to the contrary or a statement of claim is endorsed on the writ, serve a statement of claim on every defendant who enters an appearance in the action and must do so before the expiration of 6 weeks after entry of appearance by that defendant or of 8 days after the filing by him of an affidavit under Rule 9, whichever is the later. Counterclaim (O. 72, r. 12) 12. Notwithstanding anything in Order 15, Rule 2 (1), a defendant to a probate action who alleges that he has any claim or is entitled to any relief or remedy in respect of any matter relating to the grant of probate of the will, or letters of administration of the estate, of the deceased person which is the subject of the action must add to his defence a counterclaim in respect of that matter. Contents of pleadings (O. 72, r. 13) 13. —(1) Where the plaintiff in a probate action disputes the interest of a defendant he must allege in his statement of claim that he denies the interest of that defendant. (2) In a probate action in which the interest by virtue of which a party claims to be entitled to a grant of letters of administration is disputed, the party disputing that interest must show in his pleading that if the allegations made therein are proved he would be entitled to an interest in the estate. (3) Without prejudice to Order 18, Rule 7, any party who pleads that at the time when a will, the subject of the action, was alleged to have been executed the testator did not know and approve of its contents must specify the nature of the case on which he intends to rely, and no allegation in support of that plea which would be relevant in support of any of the following other pleas, that is to say: (a) that the will was not duly executed; (b) that at the time of the execution of the will the testator was not of sound mind, memory and understanding; and (c) that the execution of the will was obtained by undue influence or fraud, shall be made by that party unless that other plea is also pleaded. Default of pleadings (O. 72, r. 14) 14. —(1) Order 19 shall not apply in relation to a probate action. (2) Where any party to a probate action fails to serve on any other party a pleading which he is required by these Rules to serve on that other party, then, unless the Court orders the action to be discontinued, that other party
may, after the expiration of the period fixed under these Rules for service of the pleading in question, apply to the Court for leave to set down the action for trial. Discontinuance (O. 72, r. 15) 15. —(1) Order 21 shall not apply in relation to a probate action. (2) At any stage of the proceedings in a probate action the Court may, on the application of the plaintiff or of any party to the action who has entered an appearance therein, order the action to be discontinued on such terms as to costs or otherwise as it thinks just, and may further order that a grant of probate of the will, or letters of administration of the estate, of the deceased person, as the case may be, which is the subject of the action be made to the person entitled thereto. (3) An application for an order under this Rule may be made by summons or by notice under Order 25, Rule 7. Compromise of action (O. 72, r. 16) 16. Where whether before or after service of the defence in a probate action the parties to the action agree to a compromise, the action may, with the leave of the Court, be set down for trial. Case for motion (O. 72, r. 17) 17. [Deleted by S 806/2005] Application to Court by summons (O. 72, r. 18) 18. Except where these Rules otherwise provide, any application to the Court in a probate cause or matter may be made by summons. Form of judgments and orders (O. 72, r. 19) 19. —(1) Every judgment of the Court in a probate cause or matter shall be signed by the Registrar. (2) Every order made in such a cause or matter shall be entered by an officer of the Registry in a book kept for the purpose. Administration pending trial2(O. 72, r. 20) 20. —(1) An application under section 20 of the Probate and Administration Act (Chapter 251) for the grant of administration may be made to the Registrar by originating summons. (2) An administrator to whom a grant is made under the said section 20 must at the time when he begins proceedings for taxation of his costs, or at such other time as the Registrar may direct, produce at the Registry an account (verified by affidavit) of the moneys and other property received or paid or otherwise dealt with by him in his capacity as such an administrator. (3) Unless the Court otherwise directs, the account shall be referred to the Registrar for examination and Order 59, Rules 21, 22 and 25, shall with the necessary modifications, apply in relation to proceedings for the examination of the account as they apply in relation to proceedings for taxation of the administrator’s costs. (4) Except where the remuneration of the administrator has been fixed by a Judge, the Registrar shall, on the completion of the examination of the administrator’s account, and taxation of his costs, assess and provide for the administrator’s remuneration. Citation Proceedings This arises in situations where the executor who is entitled to apply for probate fails to do so. In such a situation the beneficiaries under the will can take up citation proceedings against the executor requiring him to take up the probate, failing which they may claim the right to do so themselves. If that happens the beneficiaries should apply for Letters of Administration with Will attached – Form 168c ROC Caveats There may be situations where the executor or the first person entitled to the Letters of Administration may not handle the estate competently. To prevent the grant of representation without notice to you, one should lodge a caveat. The caveat prevents a grant of representation being issued without the caveator being forewarned. Differences Between an Executor and Trustee In most situations the testator would appoint the same person as executor and trustee of the estate. It often is easier to combine the two roles and vest it in one person. However this should not detract from the fact that the roles of executor and trustee are separate and distinct.
Executor An executor is one who ‘calls in the estate’. In other words an executor collects and converts the assets into cash, pays all the funeral and testamentary expenses, estate duty, debts and legacies. Expert help
o o Duties o o
Sol who deals with estate is given implied power to engage agents, proff help etc to administer esate properly Can engage advisors on investments where deceased held investments in commodities etc
Duty to make sure returns fr investments are reaoanble If investments not approved trustee investments or returns not good, duty to sell and reinvest proceeds pending distribution of sale o Trustee act prov for authorized trustee investments If investing in shares must be in companies declaring dividends for 5 consecutiv yrs preceding ate of investment o Investing trustee funds x mean put money where max profits obtainable – maxprofits may mean max risks Empowering another to carry out dutie – power of attorney o Power of attorney must be specific Application to court for release or for approp orders o Under Order 80, wide powers given to court o Any personal rep may apply to enabe him to handle estate o If in doubt as to course of action, shld go to court o Just issue SIC asking for court directions if matter can be fealt with pursuant to application for LRs o Otherwise OS or writ issued Advanve to beneficiaries o Trustees have stat power to make adv to benef for their maintenance nd edn Opening sep acct for income o Before extracting letter of admin, if going business of fixed deposit, personal resps may open sep acct into which income is paid o Bsnk will allow because not touching capital and income can be used to pay for maintenance and edn of benef
Trustee - On the other hand the role of the trustee only begins once the executor has finished his role. The trustee’s main role is to decide on investments and distributions whereas executor calls in estte and pays expenses, debts and legacies For instance a will may postpone distribution for a period of time, giving the trustee the discretion as to how much each beneficiary is to take. Where the trustee fails to carry out his function adequately the beneficiaries may have him replaced. If the will so provides the trustee may seek remuneration for any work done. If, however, the will is silent as to remuneration, the trustee’s work is purely honorary, except that he may claim for disbursements. NB: s. 66 PAA provides for a commission to be paid to executors and administrators of the estate. Such a commission should not exceed 5% of the value of the assets collected. The award of such a commission is by a court, judge or registrar. ‘executor and trustee’ o same person may carry out both fn o but fns different\ o both owe fid duty to the benef o trustees act s36 and 37 deal with powers of advancement and maintenance PART IV APPOINTMENT AND DISCHARGE OF TRUSTEES Limitation of the number of trustees 36. —(1) In the case of settlements and dispositions on trust of property, whether movable or immovable, made or coming into operation on or after 1st September 1929 — (a) the number of trustees thereof shall not in any case exceed 4, and where more than 4 persons are named as such trustees, the 4 first named (who are able and willing to act) shall alone be the trustees, and the other persons named shall not be trustees unless appointed on the occurrence of a vacancy; and (b) the number of the trustees shall not be increased beyond 4. (2) The restrictions hereby imposed on the number of trustees shall not apply in the case of property vested in trustees for charitable, religious or public purposes.
[UK Trustee 1925, s. 34; Trustees Ordinance 1955 Ed., s. 36] Power of appointing new or additional trustees 37. —(1) Where a trustee, either original or substituted, and whether appointed by a court or otherwise — (a) is dead; (b) remains out of Singapore for more than 12 months; (c) desires to be discharged from all or any of the trusts or powers reposed in or conferred on him; (d) refuses or is unfit to act therein; (e) is incapable of acting therein; or (f) is an infant, then, subject to the restrictions imposed by this Act on the number of trustees — (i) the person or persons nominated for the purpose of appointing new trustees by the instrument, if any, creating the trust; or (ii) if there is no such person, or no such person able and willing to act, then the surviving or continuing trustees or trustee for the time being, or the personal representatives of the last surviving or continuing trustee, may, by writing, appoint one or more other persons (whether or not being the persons exercising the power) to be a trustee or trustees in the place of the trustee so deceased, remaining out of Singapore, desiring to be discharged, refusing, or being unfit or being incapable, or being an infant. (2) Where a trustee has been removed under a power contained in the instrument creating the trust, a new trustee or new trustees may be appointed in the place of the trustee who is removed, as if he were dead, or, in the case of a corporation, as if the corporation desired to be discharged from the trust, and this section shall apply accordingly, but subject to the restrictions imposed by this Act on the number of trustees. (3) Where a corporation being a trustee is or has been dissolved, either before, on or after 1st September 1929, then, for the purposes of this section and of any written law replaced thereby, the corporation shall be deemed to be and to have been from the date of the dissolution incapable of acting in the trusts or powers reposed in or conferred on the corporation. (4) The power of appointment given by subsection (1) or any similar previous written law to the personal representatives of a last surviving or continuing trustee shall be and shall be deemed always to have been exercisable by the executors for the time being (whether original or by representation) of such surviving or continuing trustee who have proved the will of their testator or by the administrators for the time being of such trustee without the concurrence of any executor who has renounced or has not proved. (5) But a sole or last surviving executor intending to renounce, or all the executors where they all intend to renounce, shall have and shall be deemed always to have had power, at any time before renouncing probate, to exercise the power of appointment given by this section, or by any similar previous written law, if willing to act for that purpose and without thereby accepting the office of executor. (6) Where a sole trustee, other than a trust corporation, is or has been originally appointed to act in a trust, or where, in the case of any trust, there are not more than 3 trustees (none of them being a trust corporation) either original or substituted and whether appointed by the court or otherwise, then and in any such case — (a) the person or persons nominated for the purpose of appointing new trustees by the instrument, if any, creating the trust; or (b) if there is no such person, or no such person able and willing to act, then the trustee or trustees for the time being, may, by writing, appoint another person or other persons to be an additional trustee or additional trustees. (7) It shall not be obligatory to appoint any additional trustee under subsection (6) unless the instrument, if any, creating the trust, or any written law provides to the contrary, nor shall the number of trustees be increased beyond 4 by virtue of any such appointment. (8) Every new trustee appointed under this section, as well before as after all the trust property becomes by law, or by assurance, or otherwise, vested in him, shall have the same powers, authorities and discretions, and may in all respects act as if he had been originally appointed a trustee by the instrument, if any, creating the trust. (9) The provisions of this section relating to a trustee who is dead include the case of a person nominated a trustee in a will but dying before the testator, and those relative to a continuing trustee include a refusing or retiring trustee, if willing to act in the execution of the provisions of this section. (10) Where a mentally disordered person or a person of unsound mind, being a trustee, is also entitled in possession to some beneficial interest in the trust property, no appointment of a new trustee in his place shall be made by the continuing trustees or trustee, under this section, unless leave has been given by the court to make the appointment. [UK Trustee 1925, s. 36; Trustees Ordinance 1955 Ed., s. 37] powers to invest, distribute etc
will may give general direction tt ‘my trustee may invest in such a portfolio, in such stcks and shares as he may deem fit’ o not only directns in will but trustees act and cl rules governing ow he shkld discharge his duty o trustees act allows him to appt agents nd invest in authorized trustee investments o powers enhanced by CPF act amendments – can use CPF funds to invest in securities removal of trustee o if fais to carry out duties properly, benef may replace him or seek directns fr court as to future conduct of estate remuneration, disbursements and expenses of trustee o if no provn in will for remuneration, then x take payment for himself o work as trustee to be honorary except for disbursements eg traveling expenses, stamp fees etc o but no power to vote any fund for himself o so before executor confirms apptmetn, must make sure there is clause in will to charge reasonable remuneration for his services o s66.1 – commission not ecxceeding 5 percent to be paid to executors or administrators of estate power discretionary and based on value of assets colelced by personal reps o
ESTATE DUTY What estate duty is - Estate duty very impt. Govt believes in disposal of wealth. Duty payable on death of very person and is charge in property tt deceased left behind - But parties liable – the executors etc – if no estate duty, x admniter estate s41 EDA – prevents court fr issuing grant where no estate duty cert issued In most cases estate duty nt attracted Wher not dutyable, filing of forms ius donie with courts and not estate duty division Only if dutyable, then file estate duty return Three diff sections o Acct a, b and c o A – all properties situated in sg both movable and immovable o B – assets situated outside sg o C – file list of assets for which letters of repn not necessary eg gifts made within 5 yrs before deceased passed away/ jt bank accts/ jt tenancies of properties etc Obsrvartions form – comprehensive in enqiry and reqt to give details of ll assets tt deceasaed person left behind - Estate duty is charge on property of deceased o Where not paid, commissioner has power to seize and charge any asset left behind by deceased including landed property 3 sections 40, 41, 42 Release of estate on which duty is paid 40. —(1) The Commissioner, on being satisfied that the full estate duty has been or will be paid in respect of an estate or any part thereof, shall, if required by the person accounting for the estate duty, give a certificate to that effect, which shall discharge from any further claim for estate duty the property shown by the certificate to form the estate or part thereof, as the case may be. (2) Where a person accountable for the estate duty in respect of any property passing on a death applies to the Commissioner, and delivers to him and verifies a full statement to the best of his knowledge and belief of all property passing on such death and the several persons entitled thereto, the Commissioner may determine the rate of the estate duty in respect of the property for which the applicant is accountable, and on payment of the duty at that rate, that property and the applicant, so far as regards that property shall be discharged from any further claim for estate duty, and the Commissioner shall give a certificate of such discharge. (3) A certificate of the Commissioner under this section shall not discharge any person or property from estate duty in the case of fraud or failure to disclose material facts, and shall not affect the rate of duty payable in respect of any property afterwards shown to have passed on the death, and the duty on such property shall be at such rate as would be payable if the value thereof were added to the value of the property in respect of which duty has been already accounted for.
(4) A certificate purporting to be a discharge of the whole estate duty payable in respect of any property included in the certificate shall exonerate from the estate duty a bona fide purchaser for valuable consideration without notice, notwithstanding any such fraud or failure. Probate not to issue until estate duty paid or postponement granted 41. —(1) No grant of representation shall be issued by any court until the Commissioner has certified in a certificate to be filed in court that the estate duty return has been delivered and the estate duty payable in respect of the estate has been paid or that he has allowed payment thereof to be postponed under section 42, and stating the value as assessed by the Commissioner of the property on which estate duty is payable. [30/2000] (2) A schedule of the property of a deceased person in respect of which estate duty has been paid in such form as may be prescribed or a certificate that payment of estate duty has been postponed or will be made by instalments authenticated by the signature of the Commissioner shall be annexed to the grant of representation. (3) Such schedule shall contain a description of all the property passing on the death of a deceased person whether estate duty is leviable on such property or not. (4) If, after the issue of a grant of representation in respect of a deceased person, it is discovered that any property passing or deemed to pass on his death has not been included in that schedule, then upon payment of all estate duty, if any, in respect of such property the Commissioner shall cause particulars of the property to be entered in that schedule or shall issue a supplementary schedule. Postponement of payment of estate duty in certain cases 42. —(1) The Commissioner may allow payment of the whole or any part of the estate duty to be postponed until after the issue of probate or letters of administration — (a) where the estate duty return contains the statement and undertaking specified in section 30 (3); (b) where the estate duty due in respect of any property cannot be raised at once without excessive sacrifice; (c) where the estate duty due in respect of any property cannot be raised without the sale of assets of the estate; (d) where assets of the estate in the form of debts due to, or money held for or on behalf of, the estate cannot be got in until the grant of representation has been obtained; or (e) where, in any other case, the Commissioner is satisfied that it is reasonable to allow payment to be postponed. [30/2000] (2) The onus of proving any of the circumstances mentioned in subsection (1) shall rest on the accountable person, and postponement of payment shall be subject to such conditions, including the payment of interest, and to the giving of such security and undertakings, as the Commissioner may think fit. 41 – the villain – this prohibits grant of letters of rep being extracted without estate duty cleared 40 and 42 – rescuers – minimize damage of s41 s40 – release of specific properties – deceased may have contracted to sell his house and completion is due eg 10 september 2006 if he died on 1 september, contract entered by decewased to sell his property – he has to sign transferand receive consideration if he dies on 10, who to sign transfer? – no one worse if he dies intestate – purchase entitled to give usual notice under law soc conds of sale if transfer not signedm, he has option to cancel prucahse altogether or satisfy himself with 10 percent interest in interim awyer to file all the itmes listed above – takes time!!!! Course to adopt in such sitn – S40 allows commr of estate duties to release assets fr estate duty liability Note that unpaid estate duty become charge tt estateduty can levy against estate o Ie EDC can levy charge on the property PR shld file estate duty return, write accompanying letter under s40 provision to commr – give rough value ofentire estate – value of partr bungalow Eg if worth 10 million – 1 million dutyable – above 12 million – ten percent, below, 5 percent At same time, file applic for grant of letters of application (may nit be able to finalise before that) But if EDC satisfied, will issue with cert under s40 – so tt partr asset is free fr estate duty This is all tt is needed by purchaser In requisitions on title, sol wil ask whether esatate duty has been paid for the estate So Still to prove tt not liable to estate duty Other assets – if more than 600,000, need to get estate duty clearance too
Because estate duty nt clearewd can be chargedw on the property!!!!! (even if not on property itself) So must expedite clearance of etate duty formalities – s40 S42 – postponement of estate duty – applies to all properties of estate Commr will want some sort of security to shoiw tt estate duty WILL BE PAID • Determines this by representations to be made ie to deposit title deeds to houe with commr/ receipt of fixed deposit acct with him
When certificate of postponement is issued, file cert with ocurt, court will then grant letter of rep So harshness of s41 is mitigated or eliminated Purpose of this is usu for the PR to extract grant so that he can use estate to pay estate duty 21 days notice
You apply for a certificate of postponement Section 42 Estate Duty Act
What happens if there is not enough money to pay for the estate duty?
You can fall within the grace period – s41.1 - release Person may have insuff funds to pay estate duties Commr may issue two tuyeps of certs – s40 – cert of release or s42 – cert of postponement of payment of estate duty
For latter Enables u to handle all assets of estate becase ayment has been postponed To get cert, to show tt estate duty WILL be paid First oblig tt PR discharged Given on terms o Provide security – deposit title deeds of properties/ fixed deposit proceeds with commr o Prucahse of property – deceaed died - Does not stop completion of buyer – PR to rush and file estate duty return and apply by writing to commr tt he wants cert of release under s40 to complete sale of property o Nmormally granted if undertake tt proceeds of sale on completion will be held by sol as stakeholders and out of this stakehoilding money, proportionate amt of estte duty to total value of estate will be paid o Assume total dutiable value of estate is 4 million. (after exemptions etc) o Dutiable value is 200000 (5 percent of 4 million) o Undertaking must be given by personal reps – they will pay this money on completion o Undertaking is given by sols not the client!!! (if breach, dealt with by DC, show cause etc) o 0ther undertakings reqd – some fr u, client or PR PR – • that he will ans all wqueries by commissioner client
that wil not switch sols – if tt sol has given undertaking to prxt estate duty payale, can switch sols and go to antoerh one. This is then ot bound by undertaking of previous solicitor. So client must give undertaking tt x switch sol can still change on proviso tt new sols will also give the same undertaking
Section 47 of the Estate Duty Act makes sure that an undertaking signed by own client so that the he will not switch solicitors.
Section 47 of the Estate Duty Act Application to court 47. —(1) An executor or other accountable person aggrieved by any claim by a notice of assessment by the Commissioner for payment of estate duty or interest thereon, or by the refusal of the Commissioner to return any
estate duty or interest thereon alleged to have been overpaid, may, on payment of, or giving security as hereinafter mentioned for, the amount claimed by the Commissioner or such portion of it as is then payable by him, apply to the High Court within 3 months from the date of the claim or refusal, as the case may be. o commr will then issue the relevant certs when appkly for release? When for postponm,ent o s42 postponement covers the entire este – sitn where money urgently reqd – eg maintenance ef children, hospital surgery bills etc o in such instances, larger sum of money rewd to be witdrawn r FDs, shares to be sold, etc for release o confined to one partiruclar asset o s40 releases more expeditiously obtained than s42 – covers entire estae and commr to be convinced tt value shown is the corr value. Sol also reqd to respond to qns raised expeditiously o If any delay and foot dragging commr can withdraw cert o S41 prevents court fr issuing grant and tied up – need grant to handke property, but must pay estate duty, but may need to be sold before can pay – therefore need cert in both sitn Usu if urgent matter – usu granted as lon as security given
Estate duty rates see estate duties act for rates pre 28 feb 1996 and post
pre – exemption is 500000, now 600000 for movables for imovables, pre – 3 million dollars, post, 9 million dollars
note that entire amt in CPF acct is exempted from estate duty liability!!!!!! – wrong!!! CPF is taxable. Only AFTER 600,000, CPF is not deductable. if CPF money exceeds limit of exemption, the value of movables (stocks, shares etc) will not be exempted because limit already exhausted due to the CPF
Estate duty act Dwelling-houses and all other property 14. —(1) Subject to this section, estate duty shall not be payable, in the case of a person dying on or after 1st April 1979 and before 1st April 1982, to the extent of — (a) the amount prescribed of the aggregate value of the deceased's interest in a dwelling-house or dwellinghouses, whether occupied by the deceased or not; and (b) $100,000 of the aggregate value of all other property, including any dwelling-house which does not qualify for relief under paragraph (a), and the amount thereof shall not form part of the principal value of the estate chargeable with estate duty of any deceased person. (2) Subject to this section, estate duty shall not be payable, in the case of a person dying on or after 1st April 1982 and before 1st April 1984, to the extent of — (a) the amount prescribed of the aggregate value of the deceased’s interest in a dwelling-house or dwellinghouses or, where the deceased has an interest in any dwelling-house which exceeds the amount prescribed, the value of that interest, whether the dwelling-house was occupied by the deceased or not; (b) $100,000 of the aggregate value of all other property, including any interest in any dwelling-house which does not qualify for relief under paragraph (a); and (c) the excess over $100,000, if any, of the aggregate amount standing to the credit of the deceased at the time of his death in the Central Provident Fund and in any designated pension or provident fund, except that no contributions, and the interest thereon, made by the deceased on or after 1st April 1982 to the Central Provident Fund or to any designated pension or provident fund shall qualify for relief under this paragraph unless the contributions were deductible by the deceased under section 39 (2) (g) of the Income Tax Act (Cap. 134), and the amount thereof shall not form part of the principal value of the estate chargeable with estate duty of any deceased person. (3) Subject to this section, estate duty shall not be payable, in the case of a person dying on or after 1st April 1984 and before 28th February 1996, to the extent of —
(a) the amount prescribed of the aggregate value of the deceased’s interest in a dwelling-house or dwellinghouses, whether occupied by the deceased or not; (b) $500,000 of the aggregate value of all other property, including any interest in any dwelling-house which does not qualify for relief under paragraph (a); and (c) the excess over $500,000, if any, of the aggregate amount standing to the credit of the deceased at the time of his death in the Central Provident Fund or in any designated pension or provident fund except that no contributions (and the interest thereon) made by the deceased — (i) on or after 1st April 1982 to the Central Provident Fund or to any designated pension or provident fund; or (ii) on or after 1st August 1986 to the Central Provident Fund on his own account while carrying on a trade, business, profession or vocation, shall qualify for relief under this paragraph unless the contributions were deductible by the deceased under section 39 (2) (g) or (h) of the Income Tax Act (Cap. 134), and the amount thereof shall not form part of the principal value of the estate chargeable with estate duty of any deceased person. (4) Subject to this section, estate duty shall not be payable, in the case of a person dying on or after 28th February 1996, to the extent of — (a) the amount prescribed of the aggregate value of the deceased’s interest in a dwelling-house or dwellinghouses, whether occupied by the deceased or not; (b) $600,000 of the aggregate value of all other property, including any interest in any dwelling-house which does not qualify for relief under paragraph (a); and (c) the excess over $600,000, if any, of the aggregate amount standing to the credit of the deceased at the time of his death in the Central Provident Fund or in any designated pension or provident fund except that no contributions (and the interest thereon) made by the deceased — (i) on or after 1st April 1982 to the Central Provident Fund or to any designated pension or provident fund; or (ii) on or after 1st August 1986 to the Central Provident Fund on his own account while carrying on a trade, business, profession or vocation, shall qualify for relief under this paragraph unless the contributions were deductible by the deceased under section 39 (2) (g) or (h) of the Income Tax Act (Cap. 134), and the amount thereof shall not form part of the principal value of the estate chargeable with estate duty of any deceased person. [27/96] (5) Where the value of the interest in any dwelling-house or dwelling-houses which qualifies for relief under subsection (1) (a), (2) (a), (3) (a) or (4) (a) exceeds the amount prescribed, the excess value shall not qualify for relief under subsection (1) (b), (2) (b), (3) (b) or (4) (b). [14/84; 27/96] (6) Any dwelling-house — (a) used wholly or partly for the purposes of any trade, business, profession or vocation by any person at the time of death of the deceased; or (b) passing on the death of the deceased by virtue of section 7 (1) (c), shall not qualify for relief under subsection (1) (a), (2) (a), (3) (a) or (4) (a). [14/84; 27/96] (7) In the case of a person dying on or after 25th February 2000, subsection (6) (a) shall not apply to any dwelling-house which at the time of his death was used by any person partly for the purposes of any trade, business, profession or vocation — (a) approved under the Home Office Scheme by the Urban Redevelopment Authority or the Housing and Development Board; or (b) allowed under the small business guidelines of the Urban Redevelopment Authority or the Housing and Development Board. [30/2000; 51/2004] (8) In this section — "amount prescribed" — (a) in relation to a person dying on or after 1st April 1979 and before 1st January 1981, is $200,000; (b) in relation to a person dying on or after 1st January 1981 and before 1st April 1984, is $600,000; (c) in relation to a person dying on or after 1st April 1984 and before 28th February 1996, is $3 million; (d) in relation to a person dying on or after 28th February 1996, is $9 million; "Central Provident Fund" means the Central Provident Fund established under the Central Provident Fund Act (Cap. 36); "designated pension or provident fund" means designated pension or provident fund within the meaning of section 39 (2) (g) of the Income Tax Act (Cap. 134);
"dwelling-house" includes any building or tenement, or any part thereof, which is used, constructed or adapted to be used for human habitation; but does not include any dwelling-house used wholly or partly as a hostel or quarters or for such other purpose as may be prescribed. [11/81; 2/83;14/84; 27/96; 30/2000] (9) For the purposes of this section where the deceased has 2 or more dwelling-houses the value of each of which exceeds the amount prescribed, the greater value shall qualify for the relief under subsection (2) (a). pre
for every dollar of first 10 million, 5 percent for every dollar exceeding 10 million, 10 percent first 12 million 5 percent every dolalr exceeding 12 millin 10 percent
always set aside money for payment of estate duty either as one lump sum payment I itially or periodic payments until such time as estate duty investigations are completed
inerest not charged provided that estate duty form filed within 6 mths of death Penalty for late filing – depends Must give reason • Enq may take time Or clients not aware of the law – commr usu accepts this • Or clients not aware of assets overseas etc But 1 jan 005 – debts after this – where etate duty retursn and docs filed within 6 mths, not interest is payable. Otherwise, mmt person dies, interest payable oni estte duty • For first 6 mths, 3 percent for ensuing 12 mths, 6 percent. Thereafter, 12 percent interest • Commr has discretion to charge less
Power to charge the max interest seldom invoked by commr of estate duties unless thre has been lack of diligence by the PR in responding to letters tt commr or in fialing to diclsoe truthfully assets tt deceased has Then can impose penalty – interest or even charge for perjury (estate duty returns are made under oath!)
So file within 6 mths!!! If not losing money because of the interest (since 1 jan 2005) Limit for funeral expenses increased fr olf 1000 to 6000 dollars (since 1 jan 2005) Only net value of estate tt is chargeable to estte duty, not gross Expenses by way of debts, funeral expenses, deductble, before estate duty is paid
Hospital expenses tt may have been paid fr children’s medisave acct is still a debt owed by estate – so estate to repay the son for eg FOURTH SCHEDULE Section 5 (d) RATES OF ESTATE DUTY IN THE CASE OF PERSONS DYING ON OR AFTER 1ST APRIL 1984 AND BEFORE 28TH FEBRUARY 1996 Principal value of the estate Rate of duty For every dollar of the first $10,000,000 For every dollar exceeding $10,000,000 FIFTH SCHEDULE 5% 10% Section 5 (e)
RATES OF ESTATE DUTY IN THE CASE OF PERSONS DYING ON OR AFTER 28TH FEBRUARY 1996 Principal value of the estate Rate of duty For every dollar of the first $12,000,000 For every dollar exceeding $12,000,000 SIXTH SCHEDULE Sections 36 (1) and (6) and 46 (1) Person dying Before 1st January 1965 On or after 1st January 1965 and before 1st January 2005 RATES OF INTEREST Period From the date of death to the date of payment of the estate duty 1. From the date of death to the date of payment of the estate duty or the expiration of 6 months from the date of death, whichever first occurs Rate of Interest 4% per year on the amount of the unpaid estate duty. 3% per year on the amount of the unpaid estate duty except that the Commissioner shall reduce the rate to zero if he is satisfied that the estate duty return received within 6 months after the date of death is complete and without omission of assets. 6% per year on the amount of the unpaid estate duty except that the Commissioner shall reduce the rate to 3% per year if he is satisfied that there was reasonable cause for the delay in payment or furnishing information to the Commissioner. 12% per year on the amount of the unpaid estate duty except that the Commissioner shall reduce the rate to 6% per year if he is satisfied that there was reasonable cause for the delay in payment or furnishing information to the Commissioner. 0%. 6% per year on the amount of the unpaid estate duty except that if the Commissioner is satisfied that there was reasonable cause for not filing an estate duty return without omission of assets, or for the delay in filing the estate duty return or furnishing information, he may reduce the rate charged to a rate not less than the prevailing prime lending rate of banks in Singapore. 5% 10%
2. If any part of the estate duty is not paid within 6 months from the date of death, from the expiration of those 6 months to the date of payment of that part of the estate duty or the expiration of 18 months from the date of death, whichever first occurs 3. If any part of the estate duty is not paid within 18 months from the date of death, from the expiration of those 18 months to the date of payment of that part of the estate duty
On or after 1st January 2005
1. For the first 6 months after the date of death 2. From the date 6 months after the date of death to the —
(a) date of receipt of an estate duty return without omission of assets; (b) date of notice of assessment;
(c) date of full payment of the estate duty; or (d) expiration of 18 months from the date of death, whichever first occurs. 3. From the date 18 months after the date of death to the — 12% per year on the amount of the unpaid estate duty except that if the Commissioner is satisfied that there was reasonable cause for not filing an estate duty return without omission of assets, or for the delay in filing the estate duty return or furnishing information, he may reduce the rate charged to a rate not less than the prevailing prime lending rate of banks in Singapore.
(a) date of receipt of an estate duty return without omission of assets; (b) date of notice of assessment; or (c) date of full payment of the estate duty, whichever first occurs. ESTATE DUTY
Amount of estate duty: Before 28th Feb 1996, 5% on the first $10 m and 10% on every dollar exceeding $10 m. After 28th Feb 1996, 5% on the first $12 m and 10% on every dollar exceeding $12 m. What assets are dutiable? All assets which passed on the death of a person are subject to estate duty: s 6 Estate Duties Act. “Passed” – when there is a will, ownership of the assets becomes vested in the executor. When there is no will, ownership vests in the Public Trustee: s 37(1) Public Trustee Act. Note: The vesting of ownership in the Public Trustee does not give the Public Trustee any rights over the estate. It is purely a notional vesting, so that if there is any action commenced against the deceased and there is no one around to respond to the notices, then the formal act of giving notice can be done by serving notice on the Public Trustee. The estate that passes when a person dies is whatever he was entitled to as a beneficial owner, not just as legal owner. E.g. the banks are the legal owners of the money in the bank accounts. Also, if the property is in the deceased’s name legally only, there will be no estate duty. E.g. if a father sets up a trust such that rental from a property goes to son’s account. Provided that the trust was set up 5 years before the father’s death, then the proceeds from the rent are not taxable for estate duty purposes. Exemption from estate duty: Deaths Between 1.4.84 and 28.2.96 Movables (including CPF) Residential Property $500,000 $3 m Deaths after 28.2.96 $600,000 $9 m
*If CPF monies exceeds the amount of exemption, the entire CPF monies is exempted. In such cases, no further exemption will be available for all other movables.
Interest begins to run from the day after the person dies. For the first 6 months, the rate is 3%. For the ensuing 12 months, the rate is 6%. After the 1st 18 months, the interest is 12%. It is not unusual for the Estate Commissioner to impose these rates if the estate is not responding promptly to queries. Where there is a deliberate suppression of facts, on top of the maximum interest rate, there is a penalty imposed. ∴ Go through with the client these facts if the deceased was wealthy and advise him to make an advance payment to estate duty. Once advance payment is made, there will not be any interest on that amount which has been paid to estate duty. And when issuing the cheque, mention that the amount is “payable to estate duty” and not that it is “payable to estate duty and interest”. Otherwise, the Commissioner has the discretion whether to treat the amount as payable to interest or estate duty, and he will deduct the interest payable from the total payment 1st, with the consequence that the amount of estate duty unpaid on which interest continues to run is more.
Payment practice Gd pratice tp pay eben before all details of estate duty are obtained Hw u pay and amt payable – list of assets givn by cient when he sees u ncluding list of debts payable. Having ascertained value, then clc hw mch payable If file within 6 mths, no interest payable, otherwise component of interest to be added When make payment towards acct of estate duty interest, must mention tt cheque is paymenet for estte duty. Not fr estte duty AND unterest. If x specify, commr can tke it as payment of estate duty payable plus interest tt has acccured
Total estate duty payable is 150,000. commr fr 2002 does not charge interest for first 6 mths if a relevant pprs filed and no outstanding queries unanswered. File estate duty return if estate duty is payable. 6 percent interest – eg 1 yr passed. This wld be 9000 interest. Substantial sum. Interest runs fr date of death of deceased. Then must pay 159000. But when make payment towards acct, say towards duty nt towards interest if making partial payment. 109000, still 50,000 oustanding. If paying estate duty, make it payable towards estate duty only. If by this time interest come to 9000, total eate duty payble is 159000. if in cover letter, said this is estate duty and interest, then commr will take 100000. 100000-9000 =91000. only give credit for estate duty ofr 91000. utilized 9000 for interest. Balance payable = 50000+9000 interest. So must pay estate duty on 59000 ratehr than 50,000. becase 100000 nt fully utlised for yament of estate duty, only part of it. 9000 cerdited towards interest. So balance of estte duty payable is higher – 59000 as estate duty. Interest cont to run at 6 percent. if statedonly duty, total 100000 wl go towards 150000, so only 50000 left. When it comes to adding on further niterst, amt on which interest payable is lower. So don’t need to pay unnec interest
o o o o
Eg 100,000 payable. 6 mths passed. 5 percent. nterest payable at 6 percnt. 6000. recipient has option to decide how much to allot for capital and how mch to allot for 6000 If total estae duty payable is 100,000. if say for estate duty, this is gken as payment towards estate duty leaving 50,000 If this is for interest, commr will tke interest accrued up to then which is 6000 and treat balance as paymenet towards estate duty. If deduct 6000 from 100000, get 94000 => what is outstanding is 56000 altogether. If this merely to estae duty, then whole is payment towards estate duty elaving behind only 50,000 and not 56000. Otherwise you pay more interest on the balance!!! 56000 is higher than 50000. Blance is the amt tt is chargeable interest => interest element reduced to tt extent
Taxable Items – types of estate duty: imperfect and perfect gifts Note also the Exemptions See manual appendix 1 Movable property wherever situate and immovable ppty in Singapore is subject to ED. Immovable ppty in other parts of the world are not liable for estate duty in Singapore. However such property may well be liable for estate duty in the country that they are situate. Gifts Also check whether any gifts made by deceased within 5 years of death bec under s.7(1)(c) EDA, such gifts liable to aggregation and subject to ED.
However marriage settlements, gifts to institutions of a public character (these must fall within the meaning of s. 37(9) of the Income Tax Act), gifts which are deemed by the Commissioner of ED to be within the normal expenditure of the testator given his income1, gifts to public/charitable purposes within 12 months are not liable for estate duty – S. 7(1)(c)(ii) Gifts given less than 5 yrs – must address this. If giving gifts – must be absol and indefeasible (ie no conds attached) Note tt if giver can still enjoy income, gift is not considered perfect. Must have sep trust acct in name of child (oerson who receives the gift) so tt al income goes to child. This gift becomes perfect and s7 EDA – no longer dutiable
Imperfect Gifts One should also note that any imperfect gift is liable for estate duty. An imperfect gift is one in which the deceased retains some interest. For example if a father gave his son shares in Company A and yet continued to collect the yearly dividends on those shares, such a gift is imperfect. Thus it would be liable for estate duty even if it were given more than 5 years ago. In order for gift to be ‘perfect’ it has to be absolute ie total divestment of all interest in property, complete alienation of al rights, iunterst and title in tt gift Property in joint names If deceased had bought properties in own name and in name of other person, such properties also liable to estate duty on full value if ascertained tt he proied all funds for purchase Subj to ord ruls on advancement If property bought in jt names of persons not spouses, no presumptn of advancement and state od deceased jt owner cont to be liable for estate duty on his share of property Property of husband and wife Advancement by husb to wife is presumed but not vice versa - If husb who prov funds for purchase of property then full value of property liable to estate duty if husb dies within 5 yrs - If dies more than 5 yrs after buying property, then only half value of property is dutiable because other half advanced to wife Stiems estate duty offie x charge estate duty on half value of property left behind by husb – use their discretion Gifts free of estate duty – to govt or institn of public character - Amendment to EDA effective 1 jan 1999 – all gifts to govt or insitn of public character exempt fr estate duty s12A
Subject to a limit of $1,000 per donee.
Gifts to Government or institutions of public character 12A. —(1) No estate duty shall be payable in respect of any gift of any property passing on the death of a person to the Government or any institution of a public character within the meaning of section 2 (1) of the Income Tax Act (Cap. 134) where the gift — (a) is made on or after 1st January 2002 but before the issue of a notice of assessment by the Commissioner under section 37; (b) is not any property which is deemed as property passing on the death of the person under section 7 (1) (c); and (c) has been accepted by the Government or the institution of a public character, as the case may be, and the value of the property passing on the death of the person shall be deemed not to include the value of the gift for the purpose of assessing the rate of estate duty. (2) For the purpose of subsection (1), the value of any gift of any property passing on the death of a person shall be the market value of the gift at the time of the death of the person. Institn fo public character listed in Sched 1 of income tax act and those registered as such Gifts to nat museum on or after 1 april 1987 not subj to estate duty Monument subj to preservation order by minister not dutiable
Gifts to approved museum 13. —(1) No estate duty shall be payable in respect of any gift inter vivos of — (a) money; or (b) any other approved gift, made on or after 1st April 1987 to any approved museum. (2) In this section, “approved” means approved by the Minister or such person as he may appoint. Separate Estates The general rule in calculating the value of the estate would be to aggregate the value of all the assets together, thus forming one estate – s. 23 EDA. However property which passes on the death of the deceased, in which the deceased never had any interest would not be aggregated with the rest. Such property would be treated as a separate estate by itself. – s. 23(2) EDA
A good example of property that is treated as a separate estate under these rules would be life insurance policies (Eng Li Cheng Dolly v. Lim Yeo Hua  3 SLR 363). Such policies clearly satisfy the exception in s. 23(2) as such policies pass to the beneficiary only on the death of the deceased and the deceased would have held no interest in them at any stage.2 S. 73 of the CLPA extends this advantage only to life policies in which the beneficiary/s is the spouse or the children of the deceased. Insurance policy – s73 policy o Policies taken out by spouse in favour of wife or husb or children o 2 benefits 1. proceeds cannot be charged with payment of any debts owed by policy holder • CLPA provision • Lang used in s73 is identical to s11 Engish Act MWPA
2. proceeds of property are non aggregable – all assets mst be aggregated to determine value of estate and thereby raise estate duty payable (subj to exemptions) • s73 – poicy proceeds are not aggrgable. S73(1) EDA • adv of non aggregability is tt policy proceeds of s73 policy wil be treated as sep estate • then follows tt another exemption of 600,000.
Each policy is treated as separate policy and gains benefit of the 600000 exemption Make clear to clent tt x reserve rights of insurance policy for himself. Benefits given to insured shd nt be taken by him.
It is not possible to be a beneficiary of your own life policy.
Eg clause enabling you to enjoy bonuses declared on insurance policies – don’t take the bonus payments Eg pledge tt insrance policy in return for laon. Not allowed. If obt insurranc policy, have retained an interest in the policy Must be absol assignment of rights for spouse and children Most sales persons wil persuade the insured benefits of having rights fo himself If he enjoys any benefit durig the lifetime 0- then loses benefit of s73., S73 effectively creates stat trust in favour of person named in the policy But commr of estte duty will not alow more than one policy for each person – this is tax evasion. Only one policy per person
This is a trust policy.- onky granting of non aggregable benefit to one policy per beneficiary NOTE strict interpreatoin given to insurance policy *Dolly eng v lim yew hue 1995 3 SLR 363 – benef to be spouse or child. Facts: divorce. Man married another. He died leaving 2nd wife. She claimed insurance policies he had taken out where he had nominated his wife dolly eng as the beneficiary. Eng said he took out policy when she was wife, and named as beneficiary. Decision of judge – trust created and beneficiary f trust was dolly end bwcause she was so named in the policy. Therefore the trust canot be remote. Deceased had given 25perecnt of estte to prev wife – this impacted on how statte wa interpreted She s the person entitled to policy : - anomalous? Other juuris – allow change of nominee. But limited to immed family. This reform in law not introduced in sg s73 remains, but moves to amend so tt rigours can be alleviated policy proceeds are payable to what insurance act calls proper claimant include spouse and children, also brothers, sisters, parents
chikd includes illegitimate child as well – s61 IA note intestae succession act – child natural born child and child lawfully adopted (that is impt) but most insurance policies x pay out until letters of repn are obtained o BUT insurer can release up to 150000 of proceeds without production of grant so long as he is named in policy as beneficiary o s61 IA –
CLPA: Section 73 of the CLPA (similar Section 11 of the Married Women Property Act of 1882 in UK) Moneys payable under policy of assurance not to form part of the estate of the insured. 73. —(1) A policy of assurance effected by any man on his own life and expressed to be for the benefit of his wife or of his children or of his wife and children or any of them, or by any woman on her own life and expressed to be for the benefit of her husband or of her children or of her husband and children or any of them, shall create a trust in favour of the objects therein named, and the moneys payable under any such policy shall not, so long as any object of the trust remains unperformed, form part of the estate of the insured or be subject to his or her debts. (2) If it is proved that the policy was effected and the premiums paid with intent to defraud the creditors of the insured, they shall be entitled to receive out of the moneys payable under the policy a sum equal to the premiums so paid. (3) The insured may, by the policy or by any memorandum under his or her hand, appoint a trustee or trustees of the moneys payable under the policy, and from time to time appoint a new trustee or new trustees thereof, and may make provision for the appointment of a new trustee or new trustees thereof and for the investment of the moneys payable under any such policy.
(4) In default of any such appointment of a trustee, the policy immediately on its being effected shall vest in the insured and his or her legal personal representatives in trust for the purposes aforesaid. (5) If at the time of the death of the insured or at any time afterwards there is no trustee, or it is expedient to appoint a new trustee or new trustees, a trustee or trustees or a new trustee or new trustees may be appointed by the High Court. (6) The receipt of a trustee or trustees duly appointed or, in default of any such appointment or in default of notice to the insurance office, the receipt of the legal personal representative of the insured, shall be a discharge to the office for the sum secured by the policy or for the value thereof in whole or in part. This is to be read with Section 23 of the Estate Duty Act EDA: Aggregation of property to form one estate for purpose of estate duty 23. —(1) For determining the rate of duty to be paid on any property passing on the death of the deceased, all property so passing in respect of which duty is leviable shall be aggregated so as to form one estate, and the duty shall be levied at the proper graduated rate on the principal value thereof. (2) Any property so passing, in which the deceased never had an interest, shall not be aggregated with any other property, but shall be an estate by itself, and the estate duty shall be levied at the proper graduated rate on the principal value thereof. (3) Property passing on any death shall not be aggregated more than once, nor shall estate duty in respect thereof be more than once levied in respect of the same death. Eng Li Cheng Dolly v Lim Yeo Hua  3 SLR 363 Facts The plaintiff Eng’s husband (‘the deceased’) died intestate some two years after they were divorced. The defendant Lim was the deceased’s brother and sole executor of his will. The deceased’s principal assets were three insurance policies and two immovable properties. By his will the deceased bequeathed 40% of his ‘real property’ and nothing else to Eng who sought declarations that: (a) she was entitled to the proceeds of one of the insurance policies; and (b) she and her son were entitled to 40% and 20% respectively of a HDB flat. There was no specific bequest of the policy in the will but Eng was the named beneficiary in the policy itself, which was obtained before the divorce. The dispute with respect to the insurance policy arose because the will allocated all the deceased’s personal property not ‘specifically disposed of’ to the deceased’s fiancee and trustee in equal shares. The issue was whether the naming of Eng in the policy created an immediate trust in her favour under s 73 of the Conveyancing and Law of Property Act (the Act) (Cap 61). With respect to the HDB flat, Lim alleged that the deceased told him at the time of making the will that the flat was to be in the residue for the benefit of the fiancee and Eng. Held, allowing the application: (1) It did not matter that the policy did not mention s 73 of the Act; it was not a requirement of the section for its application. The fund generated by the policy went to Eng and did not form part of the deceased’s estate. The policy was taken out during marriage with the object of creating a fund from which Eng might benefit. She had, therefore, obtained an immediate trust in her favour which was not defeated by the subsequent divorce. (2) The flat was real property and, accordingly, Eng was entitled to 40% and the son, 20%, of the flat. The fiancee was only entitled to the 10% provided for her in the will. There was no trust in the flat created in favour of the fiancée. The very clear words of the will in relation to disposition of real property made it clear that the fiancee was not entitled to more. Treating such policies as separate estates does not mean that no estate duty would be levied on it. Such estates are still open to taxation. The benefit is that for every estate the first $600,000 is tax exempt. Therefore it is theoretically possible to have several separate life insurance policies each worth $600,000 and in so doing avoid any estate duty.3
May not be so easy in practice as the Commissioner of ED has a policy of granting only one nonaggregable benefit of one policy per beneficiary.
Trusts – interest in trust property ESA uses term ‘property passing on death’ which includes deceased’s interest in trust property devolving n his sucessors eg had power of apptment under trust – if during lifetime, deceased x appt anyone then tt property will devolve onto estate
What the deceased my have held as a trustee is not deemed to be his hence it is not subject to ED 4 but must be mentioned in ED affidavit so that such ppty can be transferred to someone else who may be appointed as trustee. Therefore it is possible to escape estate duty by transferring assets to a trust 5 years before death. In order to escape the effects of estate duty fully the transfer to the trust must be absolute such that the deceased retains no interest in the trust.
Funeral Expenses Funeral expenses up to $6,000 or 5% of the gross estate, whichever is lower, is exempt from duty- s. 27. EDA. Increase fr 1000 to 6000 effective on 1 jan 2005 Under estate duty (remission for deaths in quick succession)order 2005 – remisison of esate duty made where deaths take place within 6 mths to 24 mths of persons who inherit shae in estate of another person Marriage settlements exempt These are settm made by deceased in contemplation of marriage of one of children How much cn settler give free of esate dty – depeds on status of settler and family If very wlathy, amt wld be substantial – one or two million may be exempt If settler dies within 5 yrs of gift/settm, estate not laible for estte duty on tt gift/settm Normal expenditure for living expenses of children exempt Must be within normal expenditure of deceasd donor Depends on statuts See 7.c.ii EDA (c) property taken as a donatio mortis causa made by the deceased or taken under a disposition made by him, purporting to operate as an immediate gift inter vivos, whether by way of transfer, delivery, declaration of trust, or otherwise, which shall not have been bona fide made 5 years before his death, or taken under any gift, whenever made, of which bona fide possession and enjoyment shall not have been assumed by the donee immediately upon the gift and thenceforward retained to the entire exclusion of the donor or of any benefit to him by contract or otherwise, subject to the following provisions: (i) in the case of any gift inter vivos made for public or charitable purposes, the words “5 years” in this paragraph shall be read as “12 months”; (ii) nothing in this paragraph shall apply to gifts inter vivos which are made in consideration of marriage, or which are made to the Government or any institution of a public character within the meaning of section 2 (1) of the Income Tax Act (Cap. 134), or which are proved to the satisfaction of the Commissioner to have been part of the normal expenditure of the deceased and to have been reasonable having regard to the amount of his income or to the circumstances, or which in the case of any donee do not exceed in the aggregate $1,000 in value or amount; If donor dies within 5 yrs of gift, 1 yr for gift to charity, then to prove to CED tt gift was deceased’;s normal expenditure and reasonable, having regard to income or circumstances In any case, gifts to any one donee may not exceed aggregate 1000 in value
Gratuities and unpaid retirement benefits Made payable on death of deceased erson Gratuity not liable to estate duty prov paid ex gratia and not enfor as term in deceased’s contract of employment In civil service, civil servant works ‘at pleasure of president’ – do not enter into formal cotnracs but gratuity nevertheless payable Prudent employer can prov tt gratuity is payable at discretion at employer so that when it is paid, it is exmepted fr estate duty
s. 8 EDA
Interest on Estate Duty For the first 6 months after the death of the deceased, interest is charged at 3% per annum for the unpaid duty. For the next 12 months, interest is chargeable at 6% per annum. Thereafter the rate is 12 % per annum. Liability for estate duty – 3 categories of persons Those Liable for Estate Duty There are 3 categories of those liable:
Personal Representatives. However such persons are only liable to the extent that they are in possession of funds of the estate. They are not personally liable for unpaid estate duty. Personal reps – exeucitors or administrators – bear in mind tt only liable for assets in their possession or over which they can ex control. not liable for assets not within their control. eg gifts made more than 5 yrs before person died. No more with the estate. If less than 5 yrs, this attracts estat duty if estate is dutyable. Not perfect gifts. Executor de son tort. These are those who have intermeddled with the estate. An example would be where one is in knowing receipt of funds that were paid out in breach of a trust. The executor de son tort would be liable for the sum he has intermeddled. Executors de son tort – person who has intermeddled with estate. This is handling a deceased estate without obtaining grant of letters of representation whether probate or admin. ‘de son tort’ – tortious element – not proper for person who has handled assets of the deceasd Eg deceased died. Bank acct. ATM card available to withdraw monies fr the acct. he had not come to known tt deceased had died. Or he may know If mney is withdrawn, person who withdraws is executor de son tort. Not a crime but improper If withdrawal made prejudicing rights of other beneficiaries, => person who withdrew money not abiding by terms of will or intestte succession act. Ay be charged with crim or civil breach of trust. Beneficiaries and those who received gifts within 5 years of the deceased’s death. Normally where the will does not say that a legacy is subject to estate duty the presumption is that it is free from estate duty. If so the duty will be paid out of the residuary estate. If that is not sufficient then you look to the legatees who will contribute proportionately to the value of the legacies they received under the will. For lifetime gifts, value of gift is determined at time of death of deceased donor Also known as Accountable persons They are persons who are answerable to pay estate duty where PRs do nt have suff funds to pay estate duty Whether duty of PR to go after donees and dd tt they pay proportionate estate duty payable on estate This auth to ask for moey only arises if any money available in estate (specifically denoted/named as beng subj to payment f estate duty)
Who are the persons liable to pay Estate Duty? Section 30(1) and Section 30(4) of the Estate Duty Act
Liability of executor, etc. 30. —(1) The executor of the deceased shall pay the estate duty in respect of all property of which the deceased was competent to dispose at his death, on delivering an estate duty return to the Commissioner, and may pay in like manner the estate duty in respect of any other property passing on such death, which by virtue of any testamentary disposition of the deceased is under the control of the executor, or, in the case of property not under his control, if the persons accountable for the duty in respect thereof request him to make such payment. (4) Where property passes on the death of the deceased, and his executor is not accountable for the estate duty in respect of that property, every person to whom any property so passes for any beneficial interest in possession, and also, to the extent of the property actually received or disposed of by him, every trustee, guardian, committee or other person in whom any interest in the property so passing or the management thereof is at any time vested,
and every person in whom that interest is vested in possession by alienation or other derivative title shall be accountable for the estate duty on the property.
Definition of accountable persons: donees of gifts within 5 years of the deceased death. Accountable persons are not liable for the entire balance of estate duty if the executor does not have sufficient fund in the residuary estate. However the Commissioner of Estate Duties may ask accountable persons eg donees of gifts within 5 yrs of deceasd’s death, to contribute towards estate duty such amounts as are proportionate to the value of the gifts that he received.
Where the executor does not have sufficient funds in the residuary or “free” estate, the Commissioner of Estate Duties may ask “accountable persons”, e.g. donees of gifts within 5 years of the deceased’s death, to contribute towards estate duty such amounts as are proportional to the value of the gifts they had received. Refer to Schedule 2 PAA. EG: LIABILITY OF ACCOUTANBLE PERSONS Illustration of the calculation of amount due from accountable person Gross value of estate Exemption – · Non movable assets · Movable assets Net value of dutiable estate Duty payable on 1st $12,000,000 at 5% Duty payable on balance of $3,000,000 at 10% Total duty payable (**note if forms not filed within 6 mths, then interest begins to run) Executor has available from free estate only $200,000 Balance owed to Estate Duty Duty of PR to obtain contributions from acctable persons. But x need ot cough out willy nilly. Nly to cough out prproitonate sum of value to gross value of the estate. Assume 2 donees in Singapore who received gifts in the last 5 years worth (a) $1,000,000 and (b) $2,000,000 Contribution towards estate duty for the donees would be calculated as follows: $24,600,000 $9,000,000 $600,000 $15,000,000 $600,000 $300,000 $900,000 $700,000
Value of gift ÷ Total value of estate × Total duty payable = $1,000,000 ÷ $24,600,000 × $900,000 = $36,585.36
Value of gift ÷ Total value of estate × Total duty payable =
$2,000,000 ÷ $24,600,000 × $900,000 = $73,70.22 NB:
Does not meet 400,000. Shortfall of $90,243.92 not collectable. – from whom get this money? This is last recourse. Can go after donees. Is it duty f PR? He has unpleasant taks of recovery because when he submits estate duty return form, to state it. Commr of estate duties wld have tis detail and wld req PR to obtain contribn fr donees of gifts. Interest on estate duty and funeral expenses have not been included Refer to Schedule 2 of PAA. S30 EDA empowers commr to take monies fr all acctable persons Exam – calcn of estate duty payable!!!! For both testate and intestates Note Amt deductable for funeral expenses – 6000. before that, limited to 1000 or 5 percent of value of estate whichever higher. ·
Simplified graph Example – Gross value of estate Exemption Net value of dutiable estate Duty payable on the first $12 m @ 5% Duty payable on the balance of $3 m @ 10% Total duty payable Executor has available from the “free” estate only Balance owed to Estate Duty $24,600,000 $9,600,000 $15,000,000 $600,000 $300,000 $900,000 $700,000 $200,000
Assume there are 2 donees in Singapore who have received gifts worth: (a) $1 m; and (b) $2 m. The contribution towards estate duty of both of these donees would be: Value of gift/Value of Estate x Total duty payable ∴ (a) 1 m/24.6 m x 900,000 = (b) 2 m/24.6 m x 900,000 =
There will ∴ be a shortfall of $90,243.92, which has to be written off by the Estate Duty Division. Note: Interest on estate duty and funeral expenses have not been included.
Refer to Schedule 2 of PAA. – this states in what order a person’s estate can be used to pay out debts (deals with solvent estate) o Sched 1 – insolvent estate o Must know o Find out in wil whether any provisi n made for payment of debts o If no, then PR can look to acctable persons to ask for propeortoinat epaymetn of estate duty o Both in estates with or without will o Acctable persons – liab set out in s30 EDA
Tax saving measures Basic position: Remission of estate duty 6. —(1) Where the principal value, as ascertained in accordance with the provisions of this Act, of all property which passes on the death of a person on or after 8th March 1972 and before 1st April 1974, is — (a) $25,000 or less, the estate duty payable in respect of that property shall be remitted in full; and (b) more than $25,000, that part of the estate duty payable in respect of such property which is in excess of the amount equivalent to the difference between the principal value of such property and the amount of $25,000 shall be remitted as in the following formula: A—B=C where A is the amount of the estate duty payable on the principal value of the property; B is the amount by which the value of the estate exceeds $25,000; and C is the amount of the estate duty to be remitted. [12/78] (2) Where the principal value, as ascertained in accordance with the provisions of this Act, of all property which passes on the death of a person on or after 1st April 1974 and before 1st April 1977 exceeds $50,000, there shall be allowed in respect of that excess a remission of estate duty at the rates set out in the Seventh Schedule. [12/78] (3) There shall be allowed in respect of the principal value, as ascertained in accordance with the provisions of this Act, of all property which passes on the death of a person on or after 1st April 1977 and before 1st April 1984 a remission of estate duty at the rates set out in the Eighth Schedule. [10/80; 14/84] Property deemed to pass 7. —(1) Property passing on the death of the deceased shall be deemed to include the following property: (a) property of which the deceased was at the time of his death competent to dispose; (b) property in which the deceased or any other person had an interest ceasing on the death of the deceased, to the extent to which a benefit accrues or arises by the cesser of such interest; inclusive of property the estate or interest in which has been surrendered, assured, divested or otherwise disposed of, whether for value or not, to or for the benefit of any person entitled to an estate or interest in remainder or reversion in such property, unless that surrender, assurance, divesting or disposition was bona fide made or effected 5 years before the death of the deceased, and bona fide possession and enjoyment of the property was assumed thereunder immediately upon the surrender, assurance, divesting or disposition, and thenceforward retained to the entire exclusion of the person who had the estate or interest limited to cease as aforesaid, and of any benefit to him by contract or otherwise; but exclusive of property the interest in which of the deceased or other person was only an interest as holder of an office or as recipient of the benefits of a charity or as a corporation sole; (c) property taken as a donatio mortis causa made by the deceased or taken under a disposition made by him, purporting to operate as an immediate gift inter vivos, whether by way of transfer, delivery, declaration of trust, or otherwise, which shall not have been bona fide made 5 years before his death, or taken under any gift, whenever made, of which bona fide possession and enjoyment shall not have been assumed by the donee immediately upon the gift and thenceforward retained to the entire exclusion of the donor or of any benefit to him by contract or otherwise, subject to the following provisions: (i) in the case of any gift inter vivos made for public or charitable purposes, the words “5 years” in this paragraph shall be read as “12 months”; (ii) nothing in this paragraph shall apply to gifts inter vivos which are made in consideration of marriage, or which are made to the Government or any institution of a public character within the meaning of section 2 (1) of the Income Tax Act (Cap. 134), or which are proved to the satisfaction of the Commissioner to have been part of the normal expenditure of the deceased and to have been reasonable having regard to the amount of his income or to the circumstances, or which in the case of any donee do not exceed in the aggregate $1,000 in value or amount; (d) property which the deceased, having been absolutely entitled thereto, has caused to be transferred to or vested in himself and any other person jointly, whether by disposition or otherwise, including also any purchase or investment effected by the deceased alone or in concert or by arrangement with any other person, so that the beneficial interest therein or in some part thereof passes or accrues by survivorship on his death to such other person;
(e) property passing under any past or future settlement made by the deceased by deed or any other instrument not taking effect as a will, whereby an interest in such property, or the proceeds of sale thereof, for life or any other period determinable by reference to death is reserved, either expressly or by implication, to the settlor, or whereby the settlor may have reserved to himself the right by the exercise of any power to restore to himself, or to reclaim the absolute interest in such property or the proceeds of sale thereof; (f) money received under a policy of assurance effected by the deceased on his life where the policy is wholly kept up by him for the benefit of a donee, whether nominee or assignee, or a part of such money in proportion to the premiums paid by him, where the policy is partially kept up by the deceased for such benefit; (g) any annuity or other interest purchased or provided by the deceased either by himself alone or in concert or by arrangement with any other person, to the extent of the beneficial interest accruing or arising by survivorship or otherwise on the death of the deceased. [42/98] (2) Where an annuity or other interest referred to in subsection (1) (g) has been purchased or provided by the deceased, either by himself alone or in concert or by arrangement with any other person, the extent of any beneficial interest therein accruing or arising by survivorship or otherwise on the death of the deceased shall be ascertained, and shall be deemed always to be ascertainable without regard to any interest in expectancy the beneficiary may have had therein before the death. [UK Customs and Inland Revenue 1881, s. 38 (2); UK Customs and Inland Revenue 1889, s. 11; UK Finance 1894, s. 2 (1); UK Finance 1900, s. 11 (1); UK Finance 1910, s. 59] Property not deemed to pass 8. —(1) Property passing on the death of the deceased shall not be deemed to include property held by the deceased as trustee for another person, under a disposition not made by the deceased or under a disposition made by the deceased more than 5 years before his death where possession and enjoyment of the property was bona fide assumed by the beneficiary immediately upon the creation of the trust and thenceforward retained to the entire exclusion of the deceased or of any benefit to him by contract or otherwise. (2) In the case of a disposition made for public or charitable purposes, the words “5 years” in subsection (1) shall be read as “12 months”. (3) In the case of settled property, where the interest of any person under the settlement fails or determines by reason of his death before it becomes an interest in possession, and subsequent limitations under the settlement continue to subsist, the property shall not be deemed to pass on his death. (4) Where by a disposition of any property an interest is conferred on any person other than the disponer for the life of that person or determinable on his death, and that person enters into possession of the interest and thenceforward retains possession thereof to the entire exclusion of the disponer or of any benefit to him by contract or otherwise, and the only benefit which the disponer retains in the property is subject to such life or determinable interest, and no other interest is created by that disposition, then, on the death of that person, the property shall not be deemed to pass by reason only of its reverter to the disponer in his lifetime. (5) Where, by a disposition of any property, the interest mentioned in subsection (4) is conferred on 2 or more persons, either severally or jointly, or in succession, that subsection shall apply in like manner as where the interest is conferred on one person. (6) Subsections (4) and (5) shall not apply where such person or persons taking such life or determinable interest had at any time prior to the disposition been himself or themselves competent to dispose of such property. [UK Finance 1894, s. 2 (3); UK Finance 1896, s. 15] Transactions for money consideration 9. —(1) Estate duty shall not be payable in respect of — (a) property passing on the death of the deceased by reason only of a bona fide purchase from the person under whose disposition the property passes; (b) the falling into possession of the reversion on any lease for lives; or (c) the determination of any annuity for lives, where the purchase was made, or the lease or annuity granted, for full consideration in money or money’s worth paid to the vendor or grantor for his own use or benefit, or in the case of a lease for the use or benefit of any person for whom the grantor was a trustee. (2) Where such purchase was made, or such lease or annuity granted, for partial consideration in money or money’s worth paid to the vendor or grantor for his own use or benefit, or in the case of a lease, for the use or benefit of any person for whom the grantor was a trustee, the value of the consideration shall be allowed as a deduction from the value of the property for the purpose of estate duty. [UK Finance 1894, s. 3] Presumptions 3. For the purpose of this Act —
(a) a person shall be deemed competent to dispose of property if he has such an estate or interest therein or such general power as would, if he were sui juris, enable him to dispose of the property; and “general power” includes every power or authority enabling the donee or other holder thereof to appoint or dispose of property as he thinks fit, whether exercisable by instrument inter vivos or by will, or both, but exclusive of any power exercisable in a fiduciary capacity under a disposition not made by himself or as mortgagee; (b) a disposition taking effect out of the interest of the deceased person shall be deemed to have been made by him, whether the concurrence of any other person was or was not required; and (c) money which a person has a general power to charge on property shall be deemed to be property of which he has power to dispose. Interpretation 2. In this Act, unless the context otherwise requires "disposition" includes any trust, covenant, agreement or arrangement; ‘arrangemnet’ – defined by oxford eng dic as cond or manner of being arranged – any structuring of financial affairs can be fit into this rubric implies tt most tax avoidance schemes may be neutralized note also *gorten v federal commissioner of taxation 1964-5 – windeyer J stated tt o increasing tendency iun eng courts and in US to retreat fr position of where they must refuse to look behind legal personality and to examine propose of its creation and control o however elaborate docs etc in making gift, it is stil making of gift in sg, any scehem tt greatly minimizes esate duty liab x likely to be effective Measures: Holding companies o Can set up comp to transfer wealth – in form of landed property etc o Transferor cld retain for himself certain rights in holding company or cld give up allrights but prov in Articles tt he has contro over policies of comp to ensure management control o To ensure tt x deny himself of means of income for rest of life, retain stiupated sum to meet expenses o If retains certain perentage, then only retained percentage liable for valuation and imposition of estate duty o This wld be to pro means of imncome for spouses and children who cld be appted as shrs and dirs receiving dirs salaries or allowances o CPF contribns also payable o Also reduce income tax burden o More than 5 yrs must have passed and transferor’s retention of rights shld be minimal to reduce estate duty Trusts and settlements o S8.1.b PAA exempts fr estate duty property tt deceased transferred more than 5 yrs ago to trust and in hwihc he retained no interest o Thre must be absol divestment of property and deceased did not rserve to himself any right or reversion o Gifts also in tis category with same proviso Inter vivos gifts and 5 yr rule o Donate wealth to any institn of public character within meaning of s37 of income tax act o Can be in form of bequests in will
S2 income tax act "institution of a public character" means an institution or fund in Singapore which is — (a) a hospital not operated or conducted for profit; (b) a public or benevolent institution not operated or conducted for profit; (c) a public authority or society not operated or conducted for profit and which is engaged in research or other work connected with the causes, prevention or cure of disease in human beings, where the donation is for such activities;
Offshore investments Jt properties Section 73 policies o See below
ACCIDENT CLAIMS Where the deceased died as a result of an accident, the damages payable for the death forms an estate of the estate. The amount claimable for the accident will not be known. The person (probably the spouse) wanting to claim on behalf of the deceased cannot bring an action unless she has obtained a grant. But she cannot obtain a grant until estate duty has been cleared, yet estate duty cannot be cleared unless the value of the claim is declared. S 30(3) EDA solves this circular problem: the petitioner can file an estate duty return without mentioning what is the value of the damages that would be payable, by giving details of the claim for damages and the estimated amount. The estate duty division will issue a Certificate of Postponement to be presented to the court to obtain the grant so that the personal representative can then bring a claim.
It is only permissible to initiate action without obtaining a grant 1 st if the deceased had died testate. (But the grant will be necessary at the hearing of the action.) It is not permissible to initiate action without obtaining a grant 1st if the deceased had died intestate – the petitioner has no locus standi to initiate an action until she has been granted letters of administration. DISTRIBUTION OF THE ESTATE Payment of monies in bank, title transfer to donees/ persons entitled under IAA? Monies in bank only released after obtaining grant Then send copy to bank certified as true copy and they will release monies to u – usu sols take the mone, go to client’s acct, tke out cheque in favour of client Or client can go to bank and claim himself as executor and ask for money. Bank onky needs to satisfy itself that erson is lawfully authorized For shares in Public listed comp, personal reop to go to central depository private ltd (where Stck exchange is) o Name then changedw and transferred to name of personal rep o Or transferred to name of beneficiary in will o Personal attendance is nec Change of title o Merely to file certified true copy with the Sg land auth – registry of titles o Must be certified true copy with seal of court - $25 fee o Deposited at registry of titles o File notice of transmission with registry of titles Tt decewased died owning oproperty o If deceased died, property ownedw jtly by him and spouse, doctrine f surviroship enabes survivor to be owner In such sitn wher jt tenancy involved, dint fie notice of transmission but notice of death, accomopanied with certificate of death. No need to obtain grant She then becomes owner Whether sol needs to prepare accts and obtain formal discharge fr PR o Not in all cases o But in some where estate very large o May be sep bank accts, shares in no of comp. advisable to prpare set of accts to each benef, get their confirmation tt accept accts and give discharge to PR tt no claims against PR for share in estate o For large estate, follow s29 trustees act
Advertise for claimants who may have claims in estate S29 req advertismenet inviting claims against estate of whatever rights and interests Period reqd after publication to receive claims is 2 mths If no claims made formally can distribute the money – this is express claim. • Or constructive notice of claims – ie no formal claim but trustee aware tt debt payable/ child in remote part of china etc but still beneficiary/ - here, publishing in sg gazette not enough. U noe abt his existence mewans tt already notice. Child benef where both parents have died o If apptment of guardian – pa to guardian and he handles money as trust money and gives to infant once 21 yrs old o Where no guardian officially named not advisable to release money to anyone – must keep urself till he reaches 21 o Meanwhile can be used for his expenses o Guardianship of infants act prohiibitng anyone fr transferring asset of infant without order of court o if minded to release urslf as executor – must find guardian among next of kin of decewased and persuade him to be guardian o apply to court for approp orders tt he be appted guardian and shares in estate be transferred o affidavit fr nominted guardian required and details of backgrds and undertakes to render proper accts and look after child part illegit children in intestate case o child not properly adopted by order of court o if father who fathered child, cild x get any benefit of estate o but if person who passed away was mother chid not entitled under IAA o but legitimacy act savings provision – where child is born to woman not married at time of birth, that child can still make claim as natural child of woman
APPLICABILITY OF INTESTATE SUCCESSION ACT ISA applies when the deceased at the time of his death is: (a) domiciled in Singapore and possessed beneficially of property whether movable of immovable or both situation in Singapore; (b) or domiciled outside Singapore and possessed beneficially of immovable property situation in Singapore; and (c) Deceased failed to leave a valid will. Identification of Persons entitled as beneficiaries under ISA Spouses Issues Parents Brothers and sisters Issues of brothers and sisters Grandparents Uncles and Aunties The Government s2 ISA states that the Act does not apply to Muslims. Distribution of Assets under ISA Rules for distribution found in s7 ISA. Refer to Probate and Administration Lecture (1) + (2) Issue of Advertisement
Should not distribute estate until an advertisement is placed either in gazette or in newspapers to invite claims from any beneficiaries or creditors. Refer to s29 Trustees Act.
Protection by means of advertisement 29. — (1) With a view to the conveyance to or distribution among the persons entitled to any movable or immovable property, the trustees or personal representatives may give notice by advertisement in the Gazette, and such other like notices, including notices elsewhere than in Singapore, as would, in any special case, have been directed by a court of competent jurisdiction in an action for administration, of their intention to make such conveyance or distribution as aforesaid and requiring any person interested to send to the trustees or personal representatives within the time, not being less than 2 months, fixed in the notice or, where more than one notice is given, in the last of the notices, particulars of his claim in respect of the property or any part thereof to which the notice relates. (2) At the expiration of the time fixed by the notice the trustees or personal representatives may convey or distribute the property or any part thereof to which the notice relates, to or among the persons entitled thereto, having regard only to the claims whether formal or not, of which the trustees or personal representatives then had notice and shall not, as respects the property so conveyed or distributed, be liable to any person of whose claim the trustees or personal representatives have not had notice at the time of conveyance or distribution.
There is no obligation but preferable for big estates as diminish fears of adverse claims from beneficiaries and creditors. Especially so for expatriates. Trustees are obliged to ascertain the correct beneficiaries. Beneficiaries overseas: what do you do? Advertise in mass circulation newspapers in those countries outside Singapore. Use judgment whether or not to advertise. Cheaper to advertise in government gazette than in newspapers (ie Straits Times or Lian He Zao Bao) Period of notice: 2 months. Upon the extraction of grant, the personal representative takes on the role of the trustee and starts distributing the estate according to the will or ISA. You should not advise your client to distribute the estate until advertisements have been placed in newspapers or the Gazette (the minimum required) and notify anyone who may have a claim against the estate to come forward and file their claim. Required under s 29 Trustees Act.
Not obligatory but advisable where large estates are concerned, to prevent adverse claims brought against the estate by beneficiaries or creditors. If you know that there may be beneficiaries resident in other jurisdictions, then need to advertise in the newspapers in those jurisdictions. For advertisements placed in the Gazette, the period of notice is 2 months ∴ the personal representative should only start distributing the estate after 2 months have lapsed.
Where there are shares in public listed companies, you have to ask your client to turn up at the Central Depository personally to submit the relevant applications to register themselves as the legal owners of the shares. If the will directs that the shares be given to named beneficiaries, then the account numbers of those beneficiaries will have to be given to the Central Depository. If they do not have accounts, they will have to open accounts before the shares can be transferred to them. For other moveable assets, e.g. bank account monies, your client has to send a certified true copy of the grant (some banks may also need to take a look at the original copy).
For landed property, your client has to pay for a sealed copy of the grant from the Registrar of the Court. A mere certified true copy will not do. The sealed copy is then lodged at the Registry of Titles, so that a subsequent purchaser of the property will know that estate duty has been paid. Whenever any portion of the estate is distributed, make sure that your client obtains a proper receipt from the beneficiary – an acknowledgement that his share has been paid and he has no further claims against the estate. After the time of death, any income accruing to the estate, e.g. rental, is subject to income tax at the flat rate of 20: s 43(1) Income Tax Act. Rate of tax upon companies and others 43. —(1) Subject to section 40, there shall be levied and paid for each year of assessment upon the chargeable income of — (a) every company, tax at the rate of 20% on every dollar of the chargeable income thereof; (b) every person (other than a company) not resident in Singapore, trustee (other than the trustee of an incapacitated person) and executor, tax at the rate of 20% on every dollar of the chargeable income thereof. (2) Where any trustee proves to the satisfaction of the Comptroller that any beneficiary of the trust is entitled to a share of the trust income, a corresponding share of the statutory income of the trustee may be charged at a lower rate or not charged with any tax, as the Comptroller shall determine. (3) Notwithstanding anything in this Act but subject to subsection (3A), tax at the rate of 15% shall be levied and paid on the gross amount of — (a) any income referred to in section 12 (6); and (b) any income referred to in section 12 (7) (a), (b) and (d) but excluding the incomes specified in subsection (7), accruing in or derived from Singapore on or after 28th February 1996 by a person not resident in Singapore which is not derived by the person from any trade, business, profession or vocation carried on or exercised by him in Singapore and which is not effectively connected with any permanent establishment in Singapore of the person. [28/96] (3A) Notwithstanding anything in this Act, tax at the rate of 10% shall be levied and paid on the gross amount of any income referred to in section 12 (7) (a) and (b) but excluding the incomes specified in subsection (7), accruing in or derived from Singapore on or after 1st January 2005 by a person not resident in Singapore which is not derived by the person from any trade, business, profession or vocation carried on or exercised by him in Singapore and which is not effectively connected with any permanent establishment in Singapore of the person. (3B) Notwithstanding anything in this Act, tax at the rate of 10% shall be levied and paid on the gross amount of any distribution (except distribution made out of Singapore dividends) made during the period from 18th February 2005 to 17th February 2010 by a trustee of any real estate investment trust listed on the Singapore Exchange to a person (other than an individual) not resident in Singapore — (a) who does not have any permanent establishment in Singapore; or (b) who carries on any operation in Singapore through a permanent establishment in Singapore, where the funds used by that person to acquire the units in that real estate investment trust are not obtained from that operation. (4) Notwithstanding anything in this Act but subject to subsection (5) and sections 13 (1) (r) and 40A, tax at the rate of 15% shall be levied and paid on the gross amount of any income accruing in or derived from Singapore on or after 3rd May 2002 from any profession or vocation carried on by — (a) an individual not resident in Singapore and whose principal place of business is situated outside Singapore; or (b) a foreign firm. [37/2002] (5) Any individual or foreign firm to which subsection (4) applies may make an irrevocable option to be taxed under subsection (1) (b) within 45 days from the date of payment of the income to the individual or firm or, where such payment was made before 10th December 2002, within 30 days after that date. [37/2002;21/2003] (6) Notwithstanding subsection (1) but subject to subsection (6A), for the year of assessment 2002 and subsequent years of assessment, there shall be levied and paid for each year of assessment upon the chargeable income of every company, tax at the rate prescribed in subsection (1) (a) on every dollar of the chargeable income thereof except that — (a) for every dollar of the first $10,000 of the chargeable income (excluding Singapore dividends), only 25% shall be charged with tax; and (b) for every dollar of the next $90,000 of the chargeable income (excluding Singapore dividends), only 50% shall be charged with tax.
[24/2001] (6A) Notwithstanding subsections (1) and (6), for each of the first 3 years of assessment, falling within the years of assessment 2005 to 2009, of a qualifying company, there shall be levied and paid upon the chargeable income of the company tax at the rate prescribed in subsection (1) (a) on every dollar of the chargeable income thereof except that every dollar of the first $100,000 of the chargeable income (excluding Singapore dividends) shall be exempt from tax. (7) The incomes excluded under subsections (3) (b) and (3A) are — (a) any royalty and other payments referred to in section 10 (14) or (16) which are derived by the person not resident in Singapore; and (b) any payment to a person not resident in Singapore for the rendering of assistance or service in connection with the application or use of scientific, technical, industrial or commercial knowledge or information. [28/96] (8) The reference to 20% in subsection (1) shall, for the years of assessment 2003 and 2004, be read as a reference to 22%. (9) Notwithstanding subsection (1) (a), the tax to be levied and paid upon such income of a life insurance company apportioned to the policyholders of the company as the Minister may by regulations specify shall be at the rate of 10% or such other prescribed rate. [28/92] (10) In this section — "foreign firm" means an unincorporated body of 2 or more persons who have entered into partnership with one another with a view to carrying on business for profit and whose principal place of business is situated outside Singapore; "first 3 years of assessment" , in relation to a qualifying company, means the year of assessment relating to the basis period during which the company is incorporated in Singapore and the 2 consecutive years of assessment immediately following that year of assessment; "gross amount" , in relation to any income referred to in subsections (3), (3A), (3B) and (4), means the full amount of the income without any deduction and relief being allowed against the income under the provisions of this Act; "qualifying company" means a company incorporated in Singapore (other than a company limited by guarantee) which for each of the first 3 years of assessment — (a) is resident in Singapore for that year of assessment; and (b) has no more than 20 shareholders all of whom are individuals throughout the basis period for that year of assessment; "immovable property-related assets" means listed or unlisted debt securities and listed shares issued by property corporations, mortgage-backed securities, other property funds, and assets incidental to the ownership of immovable property; "real estate investment trust" means a trust that is constituted as a collective investment scheme authorised under section 286 of the Securities and Futures Act (Cap. 289) and offered to the public for subscription, and that invests or proposes to invest in immovable property and immovable property-related assets; "Singapore dividends" means any dividend derived from Singapore from which tax is deducted or deductible under section 44. INCOME TAX 1. Trust Income and distributions to beneficiaries Income tax payable on trust income at rate of 20 percent with effect fr 2005
If distrubted to benefi it becomes personal income of benef liable to indiv benef’s respective personal rates of tax – section 35 income tax act Income from deceased assets would include rent, interest gained from fixed deposit accounts etc… Beneficiary’s Income If income diverted to beneficiary’s personal account, and received in cash, then it would not be taxed as it becomes the personal income of the beneficiary. Tax rate becomes personal tax rate.
Basis for computing statutory income 35. —(1) Except as provided in this section, the income of any person for each year of assessment (referred to in this Act as the statutory income) shall be the full amount of his income for the year preceding the year of assessment from each source of income after the deduction provided under subsection (2).
[21/2003] (2) There shall be deducted any allowance falling to be made under section 16, 17, 18A (repealed), 19, 19A, 19B, 19C, 19D or 20 that is not fully deducted and which would otherwise be added to, and deemed to form part of, the corresponding allowance for the next succeeding year of assessment under section 23 (1). [21/2003] (2A) A deduction under subsection (2) shall be made in the following order: (a) firstly, against income from any trade, business, profession or vocation; and (b) secondly, against income from any other source. (3) For the purposes of subsection (2), the balance of allowance for the earliest year of assessment shall be deemed to have been deducted first, followed by the balance of allowance for the next earliest year of assessment, and so on. [21/2003] (4) Where the Comptroller is satisfied that any person usually makes up the accounts of a trade, business, profession or vocation carried on or exercised by him, to some day other than that immediately preceding any year of assessment, he may direct that the statutory income from that source be computed on the amount of gains or profits of the year ending on that day in the year preceding the year of assessment. (5) Notwithstanding any other provisions of this Act, where any dividend derived from Singapore by any person is assessed to tax on a basis period ending on a date other than 31st December, any such dividend — (a) derived during the period from 1st January 1992 to 31st December 1992 shall be treated as his statutory income for the year of assessment 1993 and be charged to tax at the rate applicable to him for that year of assessment; (b) derived during the period from 1st January 1995 to 31st December 1995 shall be treated as his statutory income for the year of assessment 1996 and be charged to tax at the rate applicable to him for that year of assessment; (c) derived during the period from 1st January 1999 to 31st December 1999 shall be treated as his statutory income for the year of assessment 2000 and be charged to tax at the rate applicable to him for that year of assessment; (d) derived during the period from 1st January 2000 to 31st December 2000 shall be treated as his statutory income for the year of assessment 2001 and be charged to tax at the rate applicable to him for that year of assessment; (e) derived during the period from 1st January 2001 to 31st December 2001 shall be treated as his statutory income for the year of assessment 2002 and be charged to tax at the rate applicable to him for that year of assessment [1/90;20/91;28/92;26/93;1/98;24/2000;24/2001;37/2002] (f) derived during the period from 1st January 2003 to 31st December 2003 shall be treated as his statutory income for the year of assessment 2004 and be charged to tax at the rate applicable to him for that year of assessment. (6) Where the statutory income of any person from a trade, business, profession or vocation has been computed by reference to an account made up to a certain day, and such person fails for any reason whatsoever to make up an account to the corresponding day in the year following, the statutory income from the trade, business, profession or vocation both of the year of assessment in which such failure occurs and of the 2 years of assessment following shall be computed on such basis as the Comptroller in his discretion thinks fit. (7) Where in the case of any trade, business, profession or vocation it is necessary in order to arrive at the income of any year of assessment or other period, to divide and apportion to specific periods the income of any period for which accounts have been made up, or to aggregate such income or any apportioned parts thereof, it shall be lawful to make such a division, and apportionment or aggregation, and any apportionment under this section shall be made in proportion to the number of days in the respective periods, unless the Comptroller, having regard to any special circumstances, otherwise directs. (8) The statutory income of an executor of a deceased person for any year of assessment shall be the income of the estate administered by such executor computed in accordance with subsections (1) to (7). (9) In the case of an estate administered in Singapore a deduction shall be allowed in respect of any income included in the computation of the statutory income which is received by, distributed to or applied to the benefit of any beneficiary of the estate before 31st March in the year next following the year of assessment. (10) The statutory income of any beneficiary of such estate shall be the amount so received by, or distributed to him, or applied to his benefit during the year preceding the year of assessment. (11) The statutory income of a trustee (not being the trustee of an incapacitated person) for any year of assessment shall be computed in accordance with subsections (1) to (7). (12) The following income shall not form part of the statutory income of any designated unit trust or any approved CPF unit trust for any year of assessment:
(a) gains or profits derived from Singapore or elsewhere from the disposal of securities; (b) interest (other than interest for which tax has been deducted under section 45); and (c) dividends derived from outside Singapore and received in Singapore. [32/95;31/98] (12A) The income referred to in section 10 (20A) shall not form part of the statutory income of any designated unit trust or approved CPF unit trust for any year of assessment. (13) No deduction under section 14 shall be allowed in respect of any outgoings and expenses (including any expenses arising from the management of investments) incurred by any designated unit trust or any approved CPF unit trust against any income derived by the unit trust from — (a) dividends paid by any company resident in Singapore; and (b) interest for which tax has been deducted under section 45. [32/95;31/98] (13A) No deduction under section 14 shall be allowed in respect of any outgoings and expenses (including any expenses arising from the management of investments) incurred by any designated unit trust or approved CPF unit trust against any income derived by the unit trust from discount, fees and compensatory payments for which tax has been deducted under section 45A. (14) In subsections (12), (13) and (13A) — "approved CPF unit trust" means any unit trust scheme approved for the purposes of any investment scheme under the Central Provident Fund Act (Cap. 36); "compensatory payment" has the same meaning as in section 10N(12); "designated" means designated by the Minister or such person as he may appoint; "securities" has the same meaning as in section 10A; “unit” and “unit trust” have the same meanings as in section 10B. [32/95; 31/98] (15) The statutory income for any year of assessment of any beneficiary under a trust shall be that share of the statutory income of the trustee for that year of assessment which corresponds to the share of the trust income to which the beneficiary is entitled for the year preceding the year of assessment.
Accumulation and appropriation of income by trustee If there is will and directin as to hw estate to be administered, to fithfully follow reqts of testator If says accumulate income, then do so Trustee has to pay a penalty of 26% tax for accumulated income. However can apply to s36 – s37 Trustees Act to allow trustee to exercise discretion to apply part of the income for the maintenance, upkeep or education of the beneficiaries. Have the property transferred as soon as possible to minimise the income tax liability. In income tax act s35.5 and proviso under tt sectn – if thre is apopriation of income by trustee infavour of such benef, then such income becomes benef’ and subj only to progressive rats of taxation ondiv With power of accumulation in will shld be genrla discretion to trustees to approp iuncome to benf so tt incidence of tax is lower If testator not provided for distribn in will, then under trustees act can apply to court to have provn of wil varied. income tax payable on annual value of real property even if cestate comprised just ne non income prod residential property, income tax eviable on tt property annual value of property subj to 33 percent flat rate tax fr 1986 to 1990; fr feb 1990, rate 31 percent. Fr 1992, 30 percent Reduced to 27 fr 1994 and 26 fr 1996 22 fr 2003 and 20 fr 2005 tax imposed on residential property which x generate income quite burdensopme – so get estate duty matters cleared fast tax on annual value provided for by s35 income tax act charging section is s43 on person’s death if property in deceased;s name then annual vale of preorty deemed to be income accruing to estate if deemed income not distrubted ie by transferring proerty to benf then flate rate 26 percent payable by trustees
if no will, have it transferred to whoever entitle dunde laws of intestacy to minimize income tax liab annual calue is hypothetical rental tt proepty can fetch over a yr
Hypothetical Calculations: Annual value of income is the hypothetical rental which the property can fetch over a year. Assuming: $500 a month, income a year is $6,000. Income tax liable for the year: 26% of $6,000 = $1,560. Apply for a certificate of postponement of Estate Duty and have the property transferred to the beneficiary if estate duty cannot be settled as income tax on the annual value will stop running from the date of transfer. If jt tenancy then tax on proepty x arise because if survivor take popety absol, it is no more part of estate
This is because trust income = corporate income, which is taxed at 20%. Necessary to distribute the assets of the deceased as soon as possible.
But note that if e.g. rent is paid in cash into the beneficiary’s bank account before the property has been distributed, and that beneficiary is supposed to get that property, that income becomes the personal income of the beneficiary in question, and be taxed at the personal graduated rate (which is much lower than 20%) In other words, where income has been appropriated to the beneficiary in question, then the personal graduated rate will apply: s 35(5) Income Tax Act. Basis for computing statutory income 35. —(1) Except as provided in this section, the income of any person for each year of assessment (referred to in this Act as the statutory income) shall be the full amount of his income for the year preceding the year of assessment from each source of income. (5) The statutory income of an executor of a deceased person for any year of assessment shall be the income of the estate administered by such executor computed in accordance with subsections (1) to (4). (5A) In the case of an estate administered in Singapore a deduction shall be allowed in respect of any income included in the computation of the statutory income which is received by, distributed to or applied to the benefit of any beneficiary of the estate before 31st March in the year next following the year of assessment. (6) The statutory income of any beneficiary of such estate shall be the amount so received by, or distributed to him, or applied to his benefit during the year preceding the year of assessment. REAL PROPERTY OF THE ESTATE Where real property (i.e. immoveable property) is being sold, any receipt for the sale or transfer of such property shall be signed by at least 2 trustees: s 18(2) Trustees Act. What happens if the testator only appointed a sole executor and trustee? Sell the real property in the capacity as a personal representative (allowed under s 35(1) CLPA) and not as trustee! Otherwise, simply draft a deed appointing an additional trustee. NB: The role of the personal representative is discharged when he collates information on the estate and collects all the assets of the estate. Once that is done and probate is obtained, the role of the personal representative is converted to that of a trustee because he is in possession of trust property.
But if the sale of the property is taking place soon after the extraction of the grant, it is alright for the property to be sold in the capacity of a personal representative. If more than 6 years have passed, the personal representative does not have authority to sell the property unless he is backed up by an order of court: s 35(2) CLPA. The latter situation will arise where there is intestacy, or if there is a will which does not provide the trustee with the power of sale.
Refer CC Tan in  1 MLJ c which compares s 18(2) Trustees Act with s 35(1) CLPA which enables a sole personal representative to sell. REQUIRED NUMBER OF TRUSTEES
Where real property is being sold, receipt of sale shall be signed by at least 2 Trustees ref s15(3) Trustees Act What happens if deceased appointed only 1 executor and trustee (∴ requirement of 2 trustees not fulfilled.) It is alright for personal representative to sell as single trustee immediately after extracting grant. Compare role of personal representative and trustee. Personal rep’s function is completed once probate is obtained. Usually personal rep’s role is converted to t’ee once property is obtained and personal rep is holding property in his hands. Grey areas in conveyancing: refer to s15(3) Trustees Act and s35(1) CLPA. S53(1) CLPA seems to imply that a single personal representative could give subsequent purchaser good title. Seems to indicate that if one is in the shoes of a personal representative, one may transact a property sale alone but not when one is in the shoes of the trustee; selling in the capacity of a personal representative would only apply when sale is completed immediately upon extraction of letters of representation. If property not sold immediately, cannot sell as personal representative, instead have to prepare a deed to appoint additional trustee by existing trustee in order to issue good receipt of sale.
Trustees Act Power of trustees to give receipts 15. — (3) Notwithstanding anything to the contrary in a disposition on trust for sale of land or in the settlement of the net proceeds, the proceeds of sale or other capital money arising under the disposition shall not be paid to or applied by the direction of fewer than 2 persons as trustees of the disposition, except where the trustee is a trust corporation. Conveyancing and Law of Property Act Land to devolve on death as chattels real. 35. —(1) All land shall, so far as regards the transmission and devolution thereof on the death of any person in whom it is vested, whether beneficially or on any trust or by way of mortgage, be deemed to be of the nature of chattels real, and accordingly all the like powers for one only of several joint personal representatives, as well as for a single personal representative, and for all the personal representatives together, to dispose of and otherwise deal with the land, shall belong to the deceased’s personal representatives or representative from time to time, with all the like incidents, but subject to all the like rights, equities and obligations as if the land were a chattel real vesting in them or him, and for the purposes of this section the personal representatives for the time being of the deceased shall be deemed in law his heirs and assigns within the meaning of all trusts and powers.
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