Mum Dead For Two Years, But No Sign Of Probate Yet

Source : The Sunday Times, Apr 6, 2008

Q I am the executor and trustee for the estate of my mother, who died in April 2006. Her estate is worth less than $600,000, and I have a certified true copy of her will.

Soon after my mother’s death, my father and I engaged her lawyer to prepare and file duty returns. However, it has been almost two years and we still have not obtained the grant of probate.

In the two years, the lawyer switched to another law firm without informing us. My father later managed to trace her to her new firm.

More recently, some shares that form part of my mother’s estate dropped in price. And a cheque worth $3,700, which was issued to my father by an insurance company, cannot be banked in as my mother was the trustee.

This long process of waiting has created a lot of distress for my father. He and I have urged the lawyer to speed up the process on many occasions, but we are still waiting for the grant of probate.

We wish to know what we can do to help reduce the waiting time. We are also concerned that the legal and court fees and the drop in value of shares owned by my mother will increase as the process lengthens. Can you suggest what we should do?

A I note that you did not mention the cause(s) of the delay. If you are unsure of the actual cause(s), you should ask your lawyer and try to understand what are the obstacles she faces so as to take appropriate measures to solve the problem.

As there is no dispute over the validity of the will, I assume that the delay is due to an inability to obtain the certificate from the Commissioner of Estate Duties, which enables you to obtain the grant of probate from the court.

Generally, the entire procedure for obtaining the grant of probate for deaths before Feb 15 can be divided into three stages:

1. Apply to the court and obtain a tentative order of grant of probate. (This takes about two weeks to one month.)

2. File the estate duty affidavit, cooperate fully with the Estate Duty Branch (Inland Revenue Authority of Singapore) if it has queries or requires documentation. (This takes about one month onwards depending on whether you are able to address inquiries made by the Commissioner of Estate Duties.)

3. If no estate duty is payable, the Commissioner will issue a certificate to confirm this. If the Commissioner’s assessment is that estate duty is payable, there will be a request for payment, after which a certificate will be issued to confirm that estate duty has been paid. With the certificate, you can return to court to obtain the final grant of probate. (This takes about one month.)

I believe the delay in your case is because it was held up at the second stage. You need to know why the Commissioner of Estate Duties is not able to issue the certificate. Even if your mother’s estate does not attract estate duty because it is worth less than $600,000, you still need to address the Commissioner’s queries so as to obtain a certificate stating that no estate duty is payable.

Before issuing such a certificate, the Commissioner needs to be satisfied, among other things, that your mother did not make any gift within five years of her death. Such gifts might attract duty. The Commissioner also needs to be satisfied that the sum of $3,700, which you say is due to your father, should be excluded from the assessment of estate duty because your mother was only the trustee.

To reduce the processing time, you need to cooperate fully with the Commissioner of Estate Duties. Attend to all the queries that have not been satisfactorily addressed. Locate and deliver all the documents the Commissioner has requested. If you are unable to supply the answers or documents, you should inform the Commissioner, who might then make certain assumptions so as to proceed with the assessment.