(Correct as at 2 June 2020)
What are the practical and legal repercussions if an expatriate living in Singapore passes on? Especially if the expatriate has family and assets in Singapore.
The family would have to decide and make arrangements on whether to repatriate the body to have a funeral in another country or in Singapore.
If the expatriate was on an employment pass or equivalent, the pass would be cancelled by the employer. The family members’ related Dependant’s Passes, Long Term Visit Passes and Letters of Consent will also be cancelled. A 30-day Short Term Visit Pass may then be issued for them to settle outstanding affairs.
Outstanding taxes would have to be settled by the legal personal representative who is handling the affairs of the deceased. (I will explain that term below.)
Dealing with Assets
If the deceased had assets in Singapore, e.g. money in bank accounts, vehicles, real estate, etc., then certain legal procedures have to be done. Typically, if a bank has been notified of the death, it will ‘freeze’ the deceased’s account. This is because, only the authorised personal representative of the deceased’s estate may manage the deceased’s assets.
Legal Personal Representative
What is a ‘personal representative’ and what is an ‘estate’? The personal representative is the person legally authorised to deal with the deceased’s affairs.
If the deceased made a valid will, then the executor(s) named in the will is the personal representative. The executor would have to apply to the court for a grant of probate.
The will may also appoint testamentary guardians to have the legal rights to make decisions about bringing up the deceased’s children below 21 years old. Without a will, if both parents have passed on, a complex process is required for the legal appointment of a guardian.
If the deceased did not make a will, then a family member or other related person of the deceased would have to apply to the court for a letter of administration and be appointed as administrator.
With the grant of probate or letter of administration, the personal representative may then deal with the deceased’s affairs and assets, such as withdraw the money in the bank account and close the account, sell any real estate, and distribute the assets according to the deceased’s will or the applicable intestacy law.
Intestacy – No Will
If a person passes on without having made a valid will, the person is ‘intestate’. Whereas if there was a valid will, the person is ‘testate’.
Intestacy law are the legal rules that apply when there is no valid will applicable to the distribution of the deceased’s assets.
However, the above explanation about will or no will is simplified. In reality, it can be much more complicated.
If there is no valid will, and intestacy law applies, the deceased’s immovable property, i.e. real estate, is distributed generally according to the law of the jurisdiction that the immovable property is situated. (Jurisdiction means a territory within which a unique set of laws applies. E.g. Singapore or the State of Michigan (but not the entire United States).)
The deceased’s movable property, i.e. everything else other than real estate, is distributed generally according to the law of the jurisdiction that the deceased was domiciled in.
This is based on what lawyers call private international law rules or conflict of laws rules. Sections 4 and 5 of the Singapore Intestate Succession Act (Cap. 146) also apply and stipulate this.
‘Domicile’ is a legal construct. Generally, a person is domiciled in a country she considers to be her permanent home. A person may acquire a domicile of choice by the combination of residence and an intention of permanent or indefinite residence. The court may have regard to the person’s motive for taking up residence, the fact that residence was not freely chosen, and the fact that residence was precarious. Some of these principles were discussed in a High Court decision Peters Roger May v Pinder Lillian Gek Lian  SGHC 90.
Determining domicile is not straightforward. E.g. a British expatriate might have property in England, France and Singapore, and spent the last 30 years of her life in Singapore, and may even have Permanent Residence (PR) status in Singapore. It’s not a given that she is domiciled in Singapore.
All this is to say that it would generally be better for a person, expatriate or otherwise, to have made a valid will than not at all.
Testamentary Will & Complications of Multiple Jurisdictions
However, making a will is not a straightforward matter either, especially if a person has assets in, and connections with, multiple jurisdictions.
A Singapore will may be made for assets in Singapore. That is clear.
Generally, a Singapore will may also be made for assets in certain other jurisdictions, namely the Commonwealth jurisdictions, e.g. the United Kingdom, Australia, Canada, Malaysia.
What would happen after the testator (person who made the will) passed on is that the executor of the will would apply for grant of probate in the Singapore court.
Then the executor would apply for ‘re-sealing’ of the grant of probate in the other Commonwealth jurisdictions. The court in that jurisdiction would then make a court order authorising the executor to deal with the deceased’s assets in that jurisdiction.
Likewise, vice versa for wills made in Commonwealth jurisdictions—the grant of probate obtained in Malaysia or the UK may be re-sealed in the Singapore court.
However, if the will was made in non-Commonwealth jurisdictions, then things get more complicated. The will has to be validly executed with reference to the law of the jurisdiction in which the testator made the will, or was domiciled or habitually resided at when making the will or when she died, or she was a national of (section 5(2) of the Wills Act (Cap. 352)). A fresh grant of probate application has to be made in the Singapore court. Proof of the applicable foreign law has to be given to the court in the application.
Generally, it would be worth considering making a separate will for assets in every jurisdiction that assets are situated. A grant of probate for each such will may then be obtained in each jurisdiction.
Laws Superseding Will
Further, regardless of whether the will was made in a Commonwealth or non-Commonwealth jurisdiction, the law of the deceased’s domicile may also mandatorily apply in any event to supersede the terms of the will.
For example, the United Kingdom Inheritance (Provision for Family and Dependants) Act 1975 allows for the English or Wales court to vary the distribution of an estate from the terms of the will if it fails to make reasonable financial provision for certain persons e.g. spouse, civil partner, cohabitant, and child.
In civil law jurisdictions such as France, Italy, Spain and China, and Islamic law jurisdictions such as Saudi Arabia, forced heirship laws apply to ensure a minimum provision from the estate to certain dependents such as spouse and children.
Some high net worth individuals prefer to structure their legacies and assets in a way to avoid forced heirship laws as well as estate duties and other tax by setting up trusts whether in Singapore or other jurisdictions. Section 90(2) of Singapore’s Trustees Act (Cap. 337) provides for an anti-heirship rule against invalidating trusts set up in Singapore.
There is no estate tax or inheritance tax in Singapore whereas in many other jurisdictions, e.g. the UK, there is such tax. If a deceased’s domicile is the UK, her assets worldwide (including in Singapore) would be subject to inheritance tax, whereas if a deceased was not domiciled in the UK, inheritance tax only applies to her UK property. This can be a large amount since at the time of writing, the UK inheritance tax rate is 40% above a threshold amount.
Accordingly, some people additionally structure their assets and legacies through companies holding property, which are then the subject of trusts and wills.
The above discussion can be overwhelming for most people. That is why many go to professional advisors to seek customised solutions for their goals and needs based on their circumstances. In sum, it is better to plan ahead, make a will (or even more than one will) and even seek advice on structuring one’s legacies.
If you need a Singapore lawyer to help you write a will or apply for grant of probate or letters of administration, feel free to contact me.