Benjamin Frankin once wrote “in this world, nothing can be said to be certain, except death and taxes”. While many may still find death to be a morbid topic to be thinking about, planning ahead has its advantages – it gives one the peace of mind that things will be settled in the way you want it, after you are no longer around. While this is the first in the series of estate planning articles following our introductory article Estate Planning for Same-Sex Couples in Singapore, this article is written with general applicability for LGBTQ+ individuals in mind, so you certainly do not need to be in a relationship to start planning ahead!
To keep things simple and for you to understand the basic principles of wills in Singapore for a start, this article is written for a non-Muslim LGBTQ+ individual based in Singapore.
For our Muslim community friends, we have a section at the end due to the uniqueness of Wasiat (Wasiya) or Islamic Will writing.
What is a will and why do I need one?
A will is a document made by a person to specify how his or her assets are to be distributed after his or her passing. When properly drafted and signed, this document is legally binding and enforceable in accordance with the wishes of the testator (person who made a will).
If a person passes away without having made a valid will, that person is regarded to have died intestate, and all the default rules in the Intestate Succession Act apply to the intestate person’s estate, including the beneficiaries of the assets and the administrator of the estate.
If a valid will has any of the following issues, the rules in the Intestate Succession Act will also apply to resolve those issues:
- Asset in question was not covered by the will.
- No executor is available, because none was specified or if specified, has died or is unable or unwilling to act on the testator’s behalf.
Intestacy rules
The default rules for distribution are summarised in the table below.
| Rule | Deceased is survived by | Deceased does not have any surviving | Who gets what |
| 1 |
|
|
Spouse – 100% |
| 2 |
|
Spouse – 50%
Children – 50% shared equally. Grandchildren will take their parent’s share equally if their parent is dead. |
|
| 3 |
|
|
Children – 100% shared equally. Grandchildren will take their parent’s share equally if their parent is dead. |
| 4 |
|
|
Spouse – 50%
Parents – 50% shared equally. |
| 5 |
|
|
Parents – 100% shared equally. |
| 6 |
|
|
Siblings – 100% shared equally. If a sibling is deceased, then his or her share is distributed equally among his or her children. |
| 7 |
|
|
Grandparents – 100% |
| 8 |
|
|
Uncles and aunts – 100% shared equally. |
| 9 |
|
Singapore Government |
Spouse refers to the spouse of a valid marriage recognised in Singapore at the time of the deceased’s death. At the time of writing, for the purposes of estate planning, Singapore law does not recognise any marriage between persons of the same gender, or any civil partnership. Without a will, people in an LGBTQ+ relationship risk having their partner completely excluded from their estate, even if they are legally married or partnered overseas.
Children refers to the immediate legitimate or adopted children of the deceased. The requirements are the same for grandchildren, who must be legitimate or adopted. A legitimate child is a child born to married parents or to unmarried parents who subsequently marry. An adopted child is a child adopted through a court order under the laws of Singapore, Malaysia and Brunei. This definition means that any illegitimate child (e.g. child born out of wedlock) or stepchild are completely excluded from the deceased’s estate. The only exception is for an illegitimate child who may inherit from his or her mother under intestacy rules if the mother does not have any legitimate children alive at the time of her death. Without a will, people in an LGBTQ+ relationship who have children born to or of them, or adopted by them, risk having them completely excluded from their estate.
Further, without a will, the process for a person who wishes to administer your estate is more troublesome than with a will, and may be open to dispute. The person who wishes to step up as your administrator is expected to be one of the beneficiaries listed in the table above, and may need to seek the consent of the others before the court grants the letters of administration. If you prefer your partner to be your executor, you should appoint them through your will, otherwise your relatives are entitled to exclude him or her completely. If there are minors as beneficiaries, the court may also require more than one administrator, and may require the administrators to post an administration bond – this is because the court seeks to protect the assets for the minors, and has to hold the administrators accountable.
With a will, the process for your named executor to take over and distribute your assets is much more straightforward. Unless the will is disputed (recall the case of our Minister Mentor Lee Kuan Yew?), the executor does not need to look for any other co-executor (unless you have required it in your will) and does not need to provide any security to the court when applying for the grant of probate.
What goes into a will
This section discusses some of the key elements of a will which you should think about before preparing a will.
Formal requirements
First of all, you need to be at least 21 years old and of sound mind to make a will. Being of sound mind would include knowing what is going on (e.g. why are you making a will and the reasons why you have made those decisions on the key elements of your will) and being free of any abnormal state of mind because of mental illness or delusions. This means that you must be mentally present at the time of signing and you should be doing this out of your own free will (pun unintended).
If you are a silver fox among us and are concerned that you are getting very forgetful or confused or otherwise lack mental capacity, you may need to consult a doctor and lawyer to ensure that you are in the right state of mind, so to speak, when doing up your will. If you are one of the younger ones in the community, you have to be patient and wait until you reach 21 – but don’t let this stop you from planning ahead and writing your thoughts down if you need to.
The will needs to be made in writing. This does not mean you need to handwrite everything – it can be typewritten and printed as well. But keep it clean and simple, using a consistent font (it can be in Helvetica if Arial is not your cup of tea), so that it looks like a proper completed document, rather than various bar napkins stitched together.
You will then need to sign at the foot or end of the will, in the presence of 2 witnesses who also need to sign at the same time. Their role is to be physically within sight of you in the same room in the same country at the same time (not via Zoom please), and see you and see each other sign in person using pen and paper (the kind that is made from trees, not on your screen). These witnesses must not be your spouse (partner) or any of your beneficiaries of the will, as any gifts in the will to your witnesses will not be valid. If you are drafting your own will, you should consider having trusted friends be your witnesses. They should be accepting of your orientation and be people you know and who will stand up for you even though they do not receive anything from your will. This is because when the time comes that your will gets disputed (e.g. by your family or an ex-lover), you will not be around to rise from the dead to speak at that time.
Executor and trustee
The executor and trustee, commonly referred to as just the executor or trustee, is the person empowered to take over all the assets stated in your will (which could be all your assets) and to distribute them in accordance with your stated wishes.
Obviously, this should be someone you trust, and would usually be your partner or relative. This will likely require dealing with lawyers/court, banks, real estate and insurance agents and numerous beneficiaries, so try to make things easier for them by drafting your will clearly. Things would also be easier for them if you are close to them during your lifetime and if they are aware of your preferences, assets, liabilities and beneficiaries. This is not to say that you have to or should tell them everything, but the more they know beforehand, the easier their job will be. Once activated, your executor owes a fiduciary duty to your beneficiaries and has to act in their best interests, despite it being a largely thankless job, so choose wisely.
You may also wish to specify a substitute executor in case your first choice is not able to act. Again, this should be someone you can trust. Most people would choose their partner or child as their first choice, and their children, relative or trusted friend as the substitute.
Assets
A will would be typically drafted to cover a person’s entire estate, which includes all forms of property, whether tangible (e.g. land, jewellery or pet) or intangible (e.g. intellectual property). You may consider separate wills for overseas assets (see the special note at the end of this article).
Certain forms of assets cannot be distributed via your will:
- Jointly owned assets do not form part of your estate – for example, monies in joint bank accounts belong to the surviving joint account owners upon your passing. This also applies to jointly owned property like your apartment, provided that it was not recorded as a tenancy-in-common with the ownership split (e.g. 50% owned by you and 50% by your partner).
- CPF proceeds do not form part of your estate – do a CPF nomination instead. Without a CPF nomination, the rules of intestacy apply to your CPF proceeds.
- Life insurance policies bought expressly for the benefit of spouse or children do not form part of your estate – these are held on trust for their benefit and do not form part of your assets at all.
- Insurance policies which have a valid nomination in-force with your insurer – while irrevocable nominations cannot be changed, revocable nominations can be amended by revoking them and then doing up a fresh nomination or will. The advantage of using a will instead of nominations is flexibility, as you are able to distribute in any possible way you are able to describe, rather than fixed percentages in the nomination form.
While you do not need to list out every single asset in your will, you should consider whether there are specific assets which should be given to specific persons. These specific gifts should then be specified in your will so that there is no ambiguity of who should get what.
Remember that in the eyes of the law, any fur babies you have are considered assets, so you have to think about who would “own” your pet, so that any licence or registration can be transferred to them.
These assets would then be taken over and distributed by your executor after paying off the liabilities in your name. Don’t forget that your liabilities must be paid off first, so you should cater for funeral and final expenses and your loans before your beneficiaries can get anything.
Beneficiaries
Beneficiaries are those who will be receiving distributions from your estate, and would likely range from happy (that you provided for them) to grumbling (that it isn’t enough) and furious (that you excluded them) – besides being sad about your passing of course.
If you have rounded up your assets above, think through who should get what. It could be split by fraction or percentage, and you can also have substitute beneficiaries for each asset as well. For example, you can consider distributing 50% of your specified POSB bank account monies to your partner, and 50% between your surviving parents equally, provided that if any of them pass away before you, that person’s share is split equally among those who survive you.
It would also be prudent to think of a catch-all beneficiary – if there is something that you missed out in your will somehow, who should receive it? If this point is missing, an asset not covered by your will will have to be distributed according to the rules of intestacy. Your partner or your most important beneficiary would most likely also be the catch-all beneficiary.
While you are fully entitled to distribute your estate to anyone or exclude anyone from your estate through your will, you should note that under the Inheritance (Family Provision) Act, the following classes of persons may claim against your estate if they have a need to do so or feel that you have forgotten that they depend on you:
- Wife or husband
- Daughter who has not been married or who is, by reason of some mental or physical disability, incapable of maintaining herself
- Infant son
- Son who is, by reason of some mental or physical disability, incapable of maintaining himself
Again, the meanings of this classes of persons are those under Singapore law, so they may not apply to those most people in the LGBTQ+ community.
Passing away does not mean shirking your responsibilities. If you have any reason to exclude them (perhaps they are already well provided for or they have never provided for you or relied on you), these should be clearly explained and stated in your will.
If there is a cause you believe in, don’t forget that charities and organisations can also be beneficiaries of your will.
Guardians
If you have a minor child, a will can also be used to appoint guardians for them.
Wishes
Some people also like to include wishes as part of their will, such as preferred funeral arrangements. Written wishes may be useful in communicating and signalling your wants and preferences but are not intended to be legally binding and should be stated as such. It would also be good to inform your loved ones of these wishes in advance because the will would unlikely be the first thing they look for when you pass away.
When things change
A will only goes into effect or is activated upon your passing. This means that you can change it as much as you like during your lifetime as long as the formal requirements are followed. As your life circumstances change, such as marriage, buying your first property or having a child, you should revisit your will.
As a will is an important legal document, the cleanest way to amend it is to revoke it completely and sign a fresh one.
Wills are revoked by marriage, doing up a new will, revoking the old will or destruction of the old will. The same formal requirements apply to the methods involving writing (revoking or doing up a fresh will).
If you ever get married (and under Singapore law at this time this would be between a man and a woman), your will is deemed revoked. While congratulations would be in order, you should also take the opportunity to do up a fresh will to take into account your (latest) spouse. If you just got married (whether in a same-sex marriage or not) overseas or have assets overseas, you may wish to seek legal advice over there and consider doing up a fresh will.
After you pass away
This section is written as if you are an omnipresent being who is still able to read this after your death, but good planning means you know the outcomes of your work.
If you have a valid will, your executor will need to locate your will (to know he or she is the executor) and find out all the assets and liabilities in your name. It is likely that financial institutions will freeze your accounts upon knowledge of your death, pending the court order for grant of probate or letters of administration. Your executor will then be able to apply to court with the relevant documents to obtain the grant of probate from the Family Justice Courts. This order of court with the grant of probate will empower your executor to step into your shoes and do what you have lawfully asked him or her to do under your will.
If you have a valid will, but it has any of the following issues (as mentioned earlier), the process would most likely involve a mix of more troublesome procedures similar to that of applying for letters of administration and the usual straightforward procedures similar to that of applying for probate with a will. A lawyer would be able to advise more specifically in those scenarios:
- Asset in question was not covered by the will.
- No executor is available, because none was specified or if specified, has died or is unable or unwilling to act on the testator’s behalf.
If you do not have a valid will, someone will need to step up to be your administrator and go through the more troublesome process to obtain the grant of letters of administration from the Family Justice Courts. Unless your partner has a good relationship with your family, he or she would likely also not have access to any of the assets in your name. I am quite certain then that he or she would have wished that you had read this article and gotten your act in order while you were alive.
Special note for our Muslim friends
If you are Muslim, things are different, but you definitely have not been forgotten. For now, I would just highlight that different rules apply to you in Singapore under the Administration of Muslim Law Act, whether you have a will or not. Civil law, which refers to the general law applicable to everyone, would apply unless Muslim law specifically applies.
Briefly, other than your joint property, CPF accounts and insurance payouts (see the list of excluded assets above), the latter two of which will be distributed in accordance with your nominations made with the CPF Board and your insurers respectively, your entire estate will have to be distributed in accordance with the rules imposed by your school of Muslim law.
Under the Shafi’i school of thought, which the majority of Muslims in Singapore are under, only 1/3 of your estate may be distributed by will, which may have special requirements in addition to the usual formal requirements under civil law. For example, the witnesses to the will may need to be adult male Muslims. You may need to consult a lawyer who is aware of these issues to advise you more fully.
The rest of your estate (2/3) would be distributed through faraid, which is a fixed scheme of distribution to various relatives. The rules of faraid are extensive and complex depending on the remaining heirs, and an Inheritance Certificate from the Syariah Court is needed before obtaining the grant of probate or letters of administration from the Family Justice Courts.
Special note on transnational or cross-border issues
As you can see, even a brief article on wills in our tiny, sunny Singapore has been fairly long. The rules relating to death and taxes would vary among different countries or regions with their own laws.
Transnationality
Singapore law makes no distinction for wills made by citizens, permanent residents or foreigners, as long as the formal requirements for validity are met.
Overseas assets
Generally, most countries will recognise the will made in a single country as long as it is valid where it was made. However, the legal procedures after you pass away will vary, and will also depend on whether the court order from the Family Justice Courts for the grant of probate or letters of administration will be easily recognised overseas. If you have significant assets overseas, especially immovable property such as land or apartments, you may wish to do up separate wills for each country you have assets in. Care should be taken to ensure that the assets are correctly compartmentalised so that the wills do not overlap. It would be best to obtain specific legal advice in the relevant countries.
Upon your passing, your respective executors under your respective wills would then apply for grant of probate in each country as needed, and they are usually treated as separate applications. This may also be more convenient or less frustrating for these applications to take place independently especially if there are different procedures or taxes due in different jurisdictions.
Where there’s a will, there’s a way
This article has discussed the various points of a will in a hopefully easy-to-understand manner. The conclusion is simple and straightforward: where there’s a will, there’s a way. I hope you have a better idea of what you need to think through for your will, and have been suitably nudged to get it sorted out rather than leaving things (and your partner) to the inflexible (and possibly harsh) rules of intestacy, as your partner (if you have one) would most likely be excluded from everything you own. That must surely be a terrible thought when leaving behind someone you love. In the meantime, do look out for the next article in our estate planning series.
As always, the views in this article are solely mine and not necessarily attributable to any group or organisation, and since they are for general knowledge only, they most certainly do not constitute legal advice. Get a lawyer to work on your will properly if you need to, because peace of mind can only come from the confidence that you have done the right things right. While lawyers are generally duty-bound to keep your affairs confidential, you may wish to engage an LGBTQ+ affirming lawyer or law firm so that you do not need be unduly stressed about awkward questions and explanations, and so that you can focus on what truly matters to you in a supportive environment.
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