What is the difference between a Will and a Probate?

What is the difference between a Will and a Probate?
11 Sep 2021

Wills and probates are documents that determine an individual’s estate administration after their death. Having an understanding of how these documents work can help you feel less overwhelmed in sensitive situations and could potentially avoid family arguments or conflicts as well.

What is a Will?

A will is a legal document made when an individual (referred to as the testator) is still alive. It indicates their wishes for how their estate will be administered after their death, including instructions for the care of their children under 21.

In the will, the testator typically indicates who will be the executor to carry out these wishes in the event of their death, as well as guardians to care for minor children. The executor can be a trusted friend, family member, or a neutral third-party executor such as a wills and probate lawyer.

Parties can also challenge the will - however this can only take place during the probate process.

What is a Probate?

A probate is the process that takes place after the testator’s passing, and is initiated with or without a will. It ensures the court legally recognises the will, which allows the executor to begin carrying out the deceased’s wishes. Several options may arise during the probate process:

1. If a Will exists

The executor applies for a Grant of Probate with the Family Justice Courts within 6 months from the deceased’s death. The process can be confusing for those without a legal background, as you are required to submit multiple documents including:

  • Ex parte Originating Summons
  • Statement of Probate
  • Caveat search report
  • Probate search report
  • Administration Oath
  • Supporting Affidavit
  • Schedule of Assets

A professional wills and probate lawyer can help ease the process for you and your family, so that you do not have to deal with complicated legal matters while mourning.

If the value of the estate is below $50,000, you can apply to the Public Trustee to administer the estate. However, there are some situations where the Public Trustee cannot act, and we recommend reaching out to our expert lawyers for further advice.

2. If a Will does not exist

You will have to apply for a Grant of Letters of Administration during the probate. This will usually be granted to the deceased’s spouse and/or next-of-kin at the court’s discretion. Once the grant has been issued, the estate will be administered according to the rules set out by Singapore’s Intestate Succession Act (ISA) for non-Muslims, or faraid (Muslim intestate law).

Do I need to make a Will?

If you do not make a will, your estate will be administered by default according to the ISA or faraid during the probate.

A will is a useful document for helping your loved ones navigate life after your death. If you are married and/or have children under the age of 21, a will ensure their proper care and maintenance. If you own property, a will can protect other co-owners or your spouse from assuming your mortgage loan or other debts. You can also include specific instructions such as donating part of your estate to charities or causes, or allocating a portion of your estate for specific family members.

Protect your Loved Ones 

Dealing with the death of a loved one or grappling with the concept of your own mortality is a tough process. If you have a spouse, children, or ageing parents, it can feel daunting to worry about how they will be taken care of when you are not around.

Putting a will into place can help assuage your fears, and you can feel comforted that your loved ones will be cared for in case of any unexpected situations. Reach out to our trained wills and probate lawyers for more information on crafting your will, or in beginning the probate process after a loved one’s passing.

For more information, please contact our Business Development Manager, Ricky Soetikno, at rickysoetikno@harryelias.com.