Make preparations for how you want your property to be distributed after you pass on so you can ensure your loved ones are taken care of.

When a person dies without a Will, his/her estate will be dealt with based on the rules of distribution under the Intestate Succession Act (Chapter 146) (“the Act”), which may result in unintended consequences.

Therefore, it is important that one should consider writing his/her Will when he/she is able to do so before it is too late, for example, when he/she is affected by any legal impediment or mental incapacity which may impair his/her ability to write a Will, or for obvious reason, when he/she passes away.

In this article we will look at the provisions of the Act. Section 7 is the main provision of the Act which provides for the entitlement of the beneficiaries when a person dies without a Will in Singapore. This Act will not apply to the estate of any Muslims. The estate of Muslims is governed by the Administration of Muslim Law Act (Chapter 3).

Rules of distribution under Section 7

(a) Rule 1

If the Intestate dies leaving a surviving spouse, no children and no parent, the surviving spouse shall be entitled to the whole of the estate of the Intestate;

(b) Rule 2

If the Intestate dies leaving a surviving spouse and surviving child, the spouse shall be entitled to one-half of the estate and the child to the other half of the estate. If the Intestate has more than one child, then the children will be entitled to one-half of the estate in equal shares.

(c) Rule 3

If the Intestate dies leaving surviving children but no surviving spouse or no surviving parent, the surviving children shall be entitled to the whole of the estate in equal shares. If any of the children of the Intestate has passed away, then that deceased child’s descendant will be entitled to his/her share of the estate.

(d) Rule 4

If the Intestate dies leaving a surviving spouse and surviving parent or parents, but no children, the surviving spouse shall be entitled to one-half of the estate and the parent or parents to the other half of the estate (each parent shall be entitled to equal shares of the other half of the estate).

(e) Rule 5

If the Intestate dies leaving no surviving spouse and no child, but surviving parent or parents, the parent or parents shall be entitled to the whole of the estate (each parent shall be entitled to one-half of the estate).

(f) Rule 6

If the Intestate dies leaving surviving siblings, no surviving spouse, no children and no parents, the siblings shall be entitled to the whole of the estate in equal shares. If any of the siblings has passed away too, the children of the deceased sibling shall be entitled to the deceased sibling’s share of the estate.

(g) Rule 7

If the Intestate dies leaving grandparents, no surviving spouse, no surviving children, no surviving parents and no surviving siblings, the grandparents shall be entitled to the whole of the estate (each grandparent shall be entitled to one-half of the estate).

(h) Rule 8

If the Intestate dies leaving only uncles and aunts, no surviving spouse, no surviving children, no surviving parents and no surviving siblings, no surviving grandparents, the uncles and aunts shall be entitled to the whole of the estate in equal shares.

(i) Rule 9

If the Intestate dies leaving behind none of the above, the government shall be entitled to the whole of the estate.

Children

Under the Act, a child refers to legitimate child or a legally adopted child under the law of Singapore, Malaysia or Brunei Darussalam. A child who was conceived in the mother’s womb at the time of the death of the Intestate, and was subsequently born alive, is entitled to equal treatment under section 6(a) of the Act.

An illegitimate child will not be considered for distribution under the Act.

In the case of Low Guang Hong David & others v Suryono Wino Goei) (2012) SGHC 93, the Court held that “child” as defined under section 3 of the Act did not include step-children. As such, step-children are also not covered under the Act.

Spouse

If any person shall die leaving more than one wife, then each wife shall be entitled to equal share of the estate which one wife is entitled to under the Act.

What the Act does not provide

We set out below some of the salient issues which are not dealt with under the Act:

(a) The Act does not address the appointment of trustee of the Intestate. In the application for a Grant of Letters of Administration for the estate of the Intestate, the appointment of an administrator/administrators, has to be approved by the court having regard to the rights of all persons interested in the estate of the Intestate or the proceeds thereof pursuant to the Probate and Administration Act (Chapter 251). Whereas, a person is at liberty to make provisions in his/her Will on his/her choice of executor(s) and trustee(s).

(b) By virtue of the rules of distribution, there may be unintended consequences, for example, in the event that husband and wife are going through divorce proceedings or separation. If either party shall die before the divorce proceedings or separation is finalized, then his or her surviving spouse will still be entitled as beneficiary from the estate of the deceased spouse under the Act not withstanding their ongoing divorce proceedings (unless excluded by the law).

Whereas, during our consultation with prospective clients vide our Family Legacy Planning, which shall include, among other things, the writing of Wills, we will go through a list of questionnaires with them, which shall, among other things, address the issue of whether the parties are going through divorce proceedings. If so, one of the issues to be addressed by the parties would be whether there is a need for him/her/them to sever the joint tenancy of their immovable property (if any), which in most cases, are held by both husband and wife, as joint tenants.

(c) More often than not, the Intestate or most of them, would have passed away leaving behind properties and assets in Singapore or any other countries. The person who is given the task of applying to the court for the Grant of Letters of Administration of the estate of the Intestate, would, in most case, have a hard time compiling the list of assets of the Intestate, for examples, writing to the banks, financial institutions, insurance companies, etc. Whereas, these properties and assets of the parties will be properly addressed in our consultation with our prospective clients vide our Family Legacy Planning.

There are many other related issues which are also not dealt with under the Act. We will discuss these other issues with our prospective clients during our consultation with them vide our Family Legacy Planning.

Conclusion

The rules of distribution under the Intestate Succession Act are fixed. These rules may not represent the wishes of many people upon their death. Therefore, by making a Will, a person is at liberty to allocate or distribute his/her properties and assets in accordance with his/her wishes, for example, bequests or gifts to certain people (for examples, illegitimate children or step children, who would otherwise be excluded under the Act) or charitable organizations not within the rules of distribution list. He or she is also at liberty to appoint his or her desired executor(s) and trustee(s) to manage and/or distribute his properties and assets in accordance with his/her wishes under the Will.

The provisions in the Will may further serve to avoid any future dispute which may inadvertently arise between family members and loved ones upon his/her death, which may end up in court.

It’s never too early to start planning for your loved ones. Start now, while there is still time, so that you can ensure your loved ones will be properly looked after.