Funerals, Probate matters and possible problems

An Insight On The Different Types Of Power Of Attorney

There are different types of power of attorney. These are meant to ensure that the needs of the principal is properly addressed and provided for. When preparing or creating a power of attorney, it is important to get lawyer assistance.

They would be able to help you identify what type of power of attorney would be best suitable for your needs.

? General power of attorney

The general power of attorney provides the attorney-)n-fact (or agent) authority in all situations unless specified by the document. General power of attorney would include accessing safe deposit boxes, setting up trusts, transferring assets to trust funds, filing tax returns, entering contracts, representing the principal (signor of the document) and buying and selling property.

This type of power of attorney would be valid unless specified by the document, the principal dies or revokes the document, or the document specifies that it would end upon the event when the principal gets incapacitated or disabled.

? Specific power of attorney

If the attorney-in-fact is only granted authority over specific transactions like collecting debts, buying and selling property, then it is referred to as the specific power of attorney. The attorney-in-fact would only perform duties specified in the document until the principal revokes the document. Aside from revoking, both general and specific power of attorney is discontinued upon the principal’s incapacity and death.

An example will be PoA for HDB.

? Non-durable power of attorney

The clear characteristic of the non-durable power of attorney is that it is for short-term transactions only. In a situation when the principal could not handle a transaction, then this type may be more suitable. Usually, this kind of power of attorney has an expiration. When the principal becomes incapacitated or is no longer able to provide authority for the continuation of the power of attorney, the document is no longer valid.

? Lasting Power of Attorney or Durable power of attorney

Unlike the non-durable type, the lasting power of attorney can continue even after the principal becomes incapacitated or becomes incompetent in making decisions. The lasting power of attorney can be terminated if the principal would terminate it or in the event of the principal’s death.

Lasting power of attorney could cover health and care decisions, like discontinuing life support or surgery. It could also include financial matters unless specified by the document and the principal.

? Springing power of attorney

The springing power of attorney would “spring” in a specific event which is specified by the power of attorney. It could be an event of disability, illness or travel abroad. it would only be valid, if there are doctor or doctors which identified that the principal is indeed incapacitated.

However, it may pose some problems since mentally incapacitated is defined subjectively and difficult to determine. So it is not recommended that durable power of attorney would be “springing.”

? Health care power of attorney

This power of attorney is specified for only health care issues and is commonly used by principals who are suffering from terminal or mental illnesses. This kind of power of attorney is only contained in medical scope and could not be used for other duties.

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Choosing a Person for your Power of Attorney

When you get a power of attorney to authorize somebody else to execute your decisions in case you fail to do so, you need to find the right person to whom the authority would be bestowed. As a principal, you need to find your agent or attorney-in-fact. He or she does not need to be a lawyer. The agent could be just about anyone. However, you need to be very careful when choosing a Person (Donee or Agent) for your power of attorney.

The agent you would designate for your power of attorney would assume specific responsibilities and duties. Most importantly, the person should always act for your best interest. By this, it means that the agent you are appointing should always intend to follow your instructions. He or she should be ‘fiduciary.’ Thus, that person must always act with the highest possible degree of good faith on your behalf.

Your agent still has the freedom to do whatever he/she likes to do even if he/she is supposed to always make decisions for you. The law mandates the person to use your money and assets only to uphold your benefit. But he/she could freely make several inappropriate acts with regards to your money. That is why it very important to choose and appoint a person whom you fully trust. You should not appoint just about anyone. Before you choose an agent of an attorney-in-fact for your special power of attorney, it would be best to ask yourself the following questions first.

Do you trust the person?

The best thing you should establish is trust on the person you are appointing as an agent. Unfortunately, trust is something earned over time. You have to make sure the person you choose is trustworthy.

Does the person truly understand your feelings?

He/She should know you well so as to understand your own points of view and opinions. If you think that person really understands your feelings, you could be sure he/she would follow and stick to your personal wishes if ever you get incapacitated.

Would the person be willing to spend time to handle your affairs?

We are all busy. Perhaps, the person you are appointing as your attorney-in-fact could be busier than you are. It is important that the person be able to spend much time to handle your affairs and work on your behalf. If not, you would be in trouble.

Is the person easily available?

Appoint an agent or attorney-in-fact who is easily accessible or available. This is to make sure he/she would always be there in cases of emergency. The person need not be personally present to attend to your errands all the time but at least he/she should be easily contacted through the phone.

Does the person know about handling finances?

You are entrusting your money and assets to the person. It is important that you appoint an agent who is well skilled and knowledgeable in handling and managing finances. If he/she is not, at least he/she should be willing to seek appropriate help from the experts. Your power of attorney would give the person the authority to handle your financial affairs. Make sure you are entrusting it to a prudent and wise person.

Find out more about the different types of PoA.

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Lasting Power Of Attorney (LPA)

Recently, a nationwide campaign was launched to promote awareness on having a Lasting Power of Attorney.

Imagine what would happen if for some reason you were no longer capable of managing your finances, taxes, medical care, or other important responsibilities if you were incapacitated by an accident or a long-term illness?

The typical Power Of Attorney only allows your donee to act on your behalf when you still have your mental capacity. When you lose your mental capacity or die, the powers granted under the Power of Attorney shall be invalid or ineffective.

Lasting Power of Attorney (LPA) allows you to authorize your donee to make healthcare and/or financial decisions on your behalf in the unfortunate event if you should lose your mental capacity.

You will need to specify what type of Lasting Power of Attorney you want.

A Property and Affairs LPA allows the attorney of your choice to handle your financial affair while a Personal Welfare LPA allows the donee to handle your medical care or other personal health issues.

You may assign the above two broad areas to the same donee and you may also add or give specific powers according to your needs.

Despite the popular belief, your spouse or another family member cannot automatically take over your responsibilities unless you expressly authorize them to do so in the event of your incapacitation. Securing an LPA ensures that simple decisions, such as paying the bills, as well as more complicated decisions, such as selling your home, are made according to your wishes.

By planning your Lasting Power of Attorney ahead, it will help to reduce the stress and difficulties faced by your family if you should lose mental capacity.

Make sure to appoint an LPA when you are of completely sound mind because this is a requirement when you write a will. If you do not do this when you are healthy, an LPA to manage your affairs will be court appointed. In this case, you could end up with someone you do not like.

If you do not appoint an LPA and become incapacitated, your spouse or another family member will have to apply to control your assets or access your bank accounts. This is a complicated and expensive process. It can also feel like a violation of your privacy because your private matters will be in the hands of a stranger until your application is processed.

Anyone of legal age can be asked to handle your affairs. If you choose to hire an LPA, however, the LPA must be registered and it should be done sooner rather than later. Even in an emergency situation, registration can take a long time.

Accidents or long illnesses are never planned. This is why many people appoint an LPA to protect themselves and their loved ones.

It is a good idea to start appointing a Lasting Power of Attorney Singapore now to help your loved ones avoid a stressful situation later.

Contact us today.

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Using a Lasting Power of Attorney

The chart below presents a generic overview of key procedures to use a Lasting Power of Attorney (LPA). The LPA should only be used when the donor loses capacity and has been certified to be incapable of managing his own affairs. Should the donor regain his capacity again, the donee should step aside to allow the donor to manage his own affairs again. The LPA remains valid.

What is required, see this page http://www.familylaw.com.sg/pa.html at Family Law.com or the Office of Public Guardian

Criteria to make an Lasting Power of Attorney:

The requirements for making an LPA are:

l  You must be at least 21 years old

l  You must have the mental capacity to make the LPA

l  You must not be an undischarged bankrupt.

For the LPA to be valid, it must be registered with the Office of the Public Guardian.

NB: You can, at any time when you have the mental capacity, cancel (revoke) your LPA.

How Can I Make a Lasting Power of Attorney?

You will need to do the following:

a. Complete the Lasting Power of Attorney1 (LPA OPG Form 1 or LPA OPG Form 2).

There are two versions of LPA available to cater to the different needs of individuals:

LPA-Form 1 contains mostly checkboxes for donors to grant general powers to their donees with the option to select basic conditions or restrictions to these powers. This form can be self-completed by the donors.

LPA-Form 2 contains mostly free text spaces where individuals can give specific powers to their needs. This form is to be drafted by a lawyer.

b. Bring the LPA form to a certificate issuer who must be either one of the following:

l  A practising lawyer

l  A psychiatrist

l  An accredited medical practitioner

The certificate issuer will sign on the LPA Form as a witness for the donor, to certify that the donor understands the purpose of the LPA and the scope of the authority conferred under it, that there is no fraud or undue pressure used to induce the donor to create an LPA and nothing else that would prevent an LPA from being created.

c. If there are person(s) you wish to notify that you are registering an LPA, send to each named person the Notice to a Named Person of Intention to Apply for Registration of an instrument as a Lasting Power of Attorney (OPG Form N1).

d. Complete the LPA Application Form.

e. Book an appointment to submit the application to the Office of the Public Guardian and bring along the following documents:

Booking To book an appointment to register your Lasting Power of Attorney (LPA), select your preferred day and time slot, subject to availability.  https://www.publicguardian.gov.sg/BookAppointment.aspx

Please note that:

  • Each half hour slot caters to ONE LPA application only.
  • To change an appointment slot or to make an appointment on the day itself, please call our hotline at 1800 226 6222.

The OPG is located at:
510 Thomson Road
#16-01, SLF Building
Singapore 298135
Your appointment has been booked and a confirmation email has been sent to you. Your receipt number is 00003476.

Completed LPA Form

Completed LPA Application Form

NRIC of donor (original)

NRIC of donees and/or replacement donees (photocopy of front & back of NRIC)

One passport-sized photograph of each donee

f. Pay the application fee. The application fee is S$50.00 for Form 1 for Singapore citizens and permanent residents, and S$200.00 for other cases and for Form 2. You may pay by cash, NETS, Credit Card (Visa or Master) or cheque in local currency made payable to the “AG/MSF”.

Who can apply to register an LPA?

The person who can apply to register an LPA can be the:

Donor

Donee or donees (if the LPA appoints them to act jointly), or

Any of the donees if the LPA appoints the donees to act jointly and severally.

Who can submit the LPA application at the Office of the Public Guardian?

The application forms and documents can be submitted by the:

Applicants mentioned above

3rd party as authorised by applicant in the application form

Submitter must produce his original NRIC to verify his identity.

To allow us to serve you better, please book an appointment with us to register your LPA.

>> View instructional video on the procedure to make an LPA.

1 Please refer to “Guide to Filling Up the Lasting Power of Attorney

Where to Find a Certificate Issuer

If you are making an LPA, Part D and Part E of the LPA Form will have to be witnessed and certified by a certificate issuer. Any one of the following can be the certificate issuer for a instrument to be registered as a Lasting Power of Attorney:

a. an accredited medical practitioner

b. a practising lawyer

c. psychiatrists

Kindly note that a professional fee is payable to the certificate issuer. Please note that our Office does not prescribe the quantum of the fees charged by the certificate issuers?

Where to find certificate issuers?

More info at the Office of the Public Guardian Q & A also here at this page.

Form and Cost for Power of Attorney

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I am sorry to hear about your X’s death and the troubles you are having in paying for her funeral. It is true that a Power of Attorney for Financial and Property Matters automatically becomes void upon the death of the principal. Your authority ended when your X passed away. The banker is correct. In fact, the bank could be liable if they released money to you now that the Power of Attorney for Financial and Property Matters is void.

So, how do you get access to the bank account? The answer depends on what X owned at the time of her death and how she owned it. Because X did not have a joint owner or beneficiary on the account, ownership of the account will not happen automatically. In your situation, access to the money will either occur with an affidavit procedure or through a probate procedure. X’s heirs may be able to collect the money without going to court by using a form entitled “Affidavit For Collection Of Personal Property” if she owned no real estate solely in her name and her titled personal property is worth less than $50,000. Titled personal property includes bank accounts, other financial accounts, and vehicles. If this fits your X’s situation, 30 days after her death you can fill out the affidavit, sign it in front of a Notary Public, and provide it to the bank along with a Certified Death Certificate. The bank can then give the money in the account to you.

A probate procedure will be necessary in order to gain access to the money in the account, if she owned more than $50,000 in titled personal property, or if she owned real estate in her name only. Your X’s personal representative will start a probate proceeding by filing a petition with the Probate Court in the county where your X lived at the time of her death. Probate generally has to be started within three years of a person’s death, and the proceedings may be informal or formal. If your X had a Will, the Probate Court will use the Will to determine who will inherit her estate.

Keep in mind that before the heirs can take the money for themselves, either through the affidavit procedure or through probate, your X’s bills will have to be paid. Certain debts have priority over other debts. The first bills to be paid are the reasonable funeral expenses of the deceased, followed by any federal debts and taxes, reasonable and necessary medical, hospital, or nursing home expenses of the last illness, including Medical Assistance repayment, etc. I suggest you consult with an attorney about paying X’s debts out of X’s estate.

As you can see, you may have to wait for some time before you can access yX’s money to pay for her funeral bills. Most funeral homes are very understanding about these situations. In fact, I suspect this is why they wait 30 days for payment of the funeral bill. It could be that your sister had a prepaid burial plan or an insurance policy naming a funeral home. I recommend you look through her personal papers and/or call a few of the local funeral homes to see if they have any contracts with your sister. Of course, unless you personally agree to be liable for your sister’s funeral expenses under a funeral contract, you are not liable to personally pay for your sister’s funeral.

If your sister has no spouse with sufficient means to pay for a funeral, and nobody else wishes to voluntarily pay for your sister’s funeral, and your sister had no source of payment, the law provides that a very basic funeral be provided by the County. If the County later discovers that your sister had funds to pay for the funeral, the County may bring a claim againsther estate for repayment. Most family members would desire a more elaborate funeral rather than a basic funeral, but it is an option to consider.

I hope this information helps you deal with your sister’s passing.

This column is written by the Senior Citizens’ Law Project. It is not meant to give complete answers to individual questions. If you are 60 years of age or older and live within the Minnesota Arrowhead Region, you may contact us for legal help or questions by writing t Senior Citizens’ Law Project, Legal Aid Service of Northeastern Minnesota, 302 Ordean Bldg., Duluth, MN 55802. Please include a phone number and return address. To view previous articles, go t www.lasnem.org. Reprint by permission only.

Using the Probate & Administration Toolkit

5. The Subordinate Courts have prepared a Probate & Administration Toolkit to assist litigantsin-person to apply for Probate or Letters of Administration in straightforward cases.

6. You should be the Executor and Trustee named in the Deceased’s Will which deals with all the Deceased’s assets, or you should be a beneficiary of the estate applying for a Grant of Letters of Administration. The step-by-step Toolkit will guide you through the Probate or Letters of Administration process for straightforward cases where

(i) the Deceased was domiciled (i.e. had his or her permanent home) in Singapore;

(ii) the death occurred on or after 15 February 2008; and

(iii) the value of the estate is less than $3 million.

7. In addition, for applications for Letters of Administration, the Toolkit caters for the situation where –

(i) the applicant is a beneficiary of the estate;

(ii) the beneficiaries with prior right to apply for a grant (if any) renounce their right to

apply for the grant;

(iii) the beneficiaries are not minors (i.e. below 21 years of age); and

(iv) the beneficiaries do not lack mental capacity.

Hardship

No beneficiary has a right to any of the deceased’s property until the executor distributes the estate. This can cause hardship if the main beneficiary is a spouse who has no other source of income. Such hardship may be avoided by spouses keeping a joint bank account. On the death of either, the whole of the account passes to the survivor. A widow may be eligible for the Widow Allowance or other social security entitlement and a widow or widower may be able to obtain a loan using the estate as security. In some cases an executor, such as the Public Trustee, will make a partial distribution, or an advance, to a widow or widower

Release of assets

When an estate is very small, there may be no need to obtain a grant of probate or letters of administration. If a bank account is in the deceased’s name only, banks will usually release enough to cover funeral expenses, or for a surviving spouse or children if the amount does not exceed a certain limit. All the money in a joint account automatically goes to the survivor when one of the account holders dies.

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Upon the death of a person, generally his assets cannot be dealt with until the Grant of Letters of Administration or the Grant of Probate is issued by the Court. The Court issues the Grant after the Petition has been filed (all procedure followed) and estate duty clearance has been obtained. If the estate is large, the time required would be longer as the value of the various assets have to be acertained to determine whether estate duty is payable or otherwise. In the case of a Grant of Probate, the time frame would be shorter as there would not be a need for a renunciation application or dispensation with sureties. Generally, the application takes about 4 months to 12 months.

For assets above S$3 million, the application is filed in the Supreme Court. For assets below S$3 million, the application is filed in the Subordinate Courts. Online filing at the Court Registry will be available soon. At present the filing of the application is done manually at the respective Registry.

If you require any assistance to apply for Grant of Probate or Grant of Letters of Administration, please submit the form below for a quotation. The fees and disbursements depend on the extent of the assets, nature of the assets and the location of the assets etc. For assets located overseas, you would have to apply for the re-sealing of the Grant in some instances or a fresh application in other instance, depending on which country the assets are located. Foreign lawyers are required to be engaged for such overseas application. The charges for the re-sealing of a Grant and application overseas vary, depending again on various factors.  http://www.willsonline.com.sg/page4.html

Your Name as per NRIC:
NRIC No:
Address:
Your e-mail address:
Your Contact No:
Deceased Name :
Deceased’s Nric:
Deceased’s Address:    
Deceased relationship to you
Date of Death:
Deceased died in which country:
Whether deceased made a Will                                                                    YesNo
Whether deceased’s assets exceed S$3 million, in your opinion

lease provide details of estimate worth of assets:

Any shares in private companies

If yes, please provide details:

Any real estate overseas  If yes, please provide details

Real property

Where the deceased owned a house or land or an interest in a house or land (such as a mortgage or lease) in his or her name only, it is necessary to obtain a grant of probate or letters of administration. No grant of probate is required to deal with a house or land owned as a joint tenant. A surviving joint tenant automatically gets the whole property when one joint tenant dies. The deceased person’s interest does not form part of the deceased estate.

The process to apply for Grant of Probate or Letters Of Administration is intellectually simple — an experienced law clerk can do the steps, but is tedious and time consuming. Most lawyers can also submit the initial required documents online from their office PCs and also get his clerk to perform the High Court & Sub Courts caveat searches online, and to do the leg work going to various service counters in the courts and Chinatown Point when necessary.

The overview of the steps can be found here:-
http://app.subcourts.gov.sg/subcourts/page.aspx?pageid=4425

The detailed instructions, forms and formats are found in the Sub-Cts Practice Directions:-
http://app.subcourts.gov.sg/subcourts/page.aspx?pageid=4433

Lawyers know this and charge accordingly — they also hedge against the case becoming complex e.g. ownership issues of the assets, disputes by family members and beneficiaries etc.

I think most people will need to set aside savings or insurance payout to pay for such expenses, and also not forgetting funeral expenses too

Other non-legal fees incur will be when two surties have to be found because of large estate or when there are minors

http://tankinlian.blogspot.jp/2011/04/probate-and-letter-of-administration.html

Having a will merely means that you expressed in black & white how you want your assets to be distributed / protected after you’re gone. Contrast with having no will and dying intestate, where your assets will then be distributed according to the law as spelled out in the Intestate Succession Act.

To execute your will, the named executor(s) in your will still need to go thru the process to obtain the Grant Of Probate. So if your executors are unable to afford the time & effort, they still need to pay a few thousand dollars to get a lawyer.

I have helped with some of my relatives, but quite standard cases e.g. simple property like HDB or condo, bank accounts, brokerage accounts. No businesses with various business partners, multiple properties with tenancy-in-common with many owners etc. Usual money spent if DIY is a few hundred dollars, mostly in stamp duties.

Btw, you still need to pay conveyancing fees and stamp duty to transfer ownership of condo or HDB (if allowed) e.g. to the children. For private property it is another few thousand. For HDB it is $100++.

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Upon the death of a person, generally his assets cannot be dealt with until the Grant of Letters of Administration or the Grant of Probate is issued by the Court. The Court issues the Grant after the Petition has been filed (all procedure followed) and estate duty clearance has been obtained. If the estate is large, the time required would be longer as the value of the various assets have to be acertained to determine whether estate duty is payable or otherwise. In the case of a Grant of Probate, the time frame would be shorter as there would not be a need for a renunciation application or dispensation with sureties. Generally, the application takes about 4 months to 12 months.

For assets above S$3 million, the application is filed in the Supreme Court. For assets below S$3 million, the application is filed in the Subordinate Courts. Online filing at the Court Registry will be available soon. At present the filing of the application is done manually at the respective Registry.

If you require any assistance to apply for Grant of Probate or Grant of Letters of Administration, please submit the form below for a quotation. The fees and disbursements depend on the extent of the assets, nature of the assets and the location of the assets etc. For assets located overseas, you would have to apply for the re-sealing of the Grant in some instances or a fresh application in other instance, depending on which country the assets are located. Foreign lawyers are required to be engaged for such overseas application. The charges for the re-sealing of a Grant and application overseas vary, depending again on various factors

http://app.subcourts.gov.sg/civil/page.aspx?pageid=10967

Upon the death of a person, generally his assets cannot be dealt with until the Grant of Letters of Administration or the Grant of Probate is issued by the Court. The Court issues the Grant after the Petition has been filed (all procedure followed) and estate duty clearance has been obtained. If the estate is large, the time required would be longer as the value of the various assets have to be acertained to determine whether estate duty is payable or otherwise. In the case of a Grant of Probate, the time frame would be shorter as there would not be a need for a renunciation application or dispensation with sureties. Generally, the application takes about 4 months to 12 months.

For assets above S$3 million, the application is filed in the Supreme Court. For assets below S$3 million, the application is filed in the Subordinate Courts. Online filing at the Court Registry will be available soon. At present the filing of the application is done manually at the respective Registry.

If you require any assistance to apply for Grant of Probate or Grant of Letters of Administration, please submit the form below for a quotation. The fees and disbursements depend on the extent of the assets, nature of the assets and the location of the assets etc. For assets located overseas, you would have to apply for the re-sealing of the Grant in some instances or a fresh application in other instance, depending on which country the assets are located.

Note: Personally drafted wills are often incomplete, and therefore invalid under state law. An invalid will is worthless.

Kits for writing a will are normally not state-specific. If your will fails to follow state law, it will be invalid.

Gifting

For large estates gifting can be a viable option. Individuals can give away up to $1 million during their lifetime without incurring federal gift taxes. In addition, one can give away an annual amount without reducing their exemption for gift or estate taxes.

OCBC deposit rules:

INDIVIDUAL/JOINT ACCOUNT(S)

13.1 Where the Customer is an individual, the Customer’s executor or administrator shall be the only persons recognised by the Bank as the Customer’s successor in the event of the Customer’s death. Upon notice of the Customer’s death, the Bank shall be entitled to freeze the Account until such time the Customer’s successor produces a grant of probate or letters of administration.

Upon notice of the death of any one of the Joint Account(s) holders, the Bank shall be entitled to pay the credit balance in the Joint Account(s) to the survivor and if more than one survivor, in their joint names provided that prior to such payment, the indebtedness of any of the Joint Account(s) holders to the Bank shall first be set-off from the said credit balance.

13.3 Upon production of a grant of probate or letters of administration, the Bank may, open an Account in the name of the estate of the deceased. The executor, the administrator of the estate or the personal representative of the deceased shall operate the Account in accordance with the probate or the letters of administration so granted.

14. IN-TRUST-FOR ACCOUNTS

14.1 Where an Account(s) is “in-trust-for” someone else, the Customer undertakes to operate such Account(s) solely for the benefit of such beneficiary(ies). The Customer may withdraw money or close the Account(s) in accordance with the provisions of these Terms and Conditions. The Customer shall indemnify the Bank against any loss or liability in respect of the operation of the Account(s).

14.2 Upon the Customer’s death or the death of any of the beneficiaries, the Bank shall be entitled to exercise its right to debit from the Account(s) any obligations owed to the Bank by the Customer.

14.3 Upon the Customer’s death, the Bank shall at its discretion, be entitled to:-

(a) Where the beneficiary(ies) are of full age, close the Account(s) and release the monies in the Account(s) to the beneficiaries equally, or open a new Account(s) in the name of all the beneficiary(ies) and the new Account(s) shall be operated in accordance with the instructions of all the beneficiary(ies); or

(b) Where the beneficiary(ies) are not of full age, close the Account(s) and open a new Account(s) in the names of the Customer’s personal representative (s) in trust for the beneficiary(ies) or release the monies in such Account(s) to the Customer’s personal representative(s).

14.4 Upon the death of any of the Customer’s beneficiary(ies), the Bank shall be entitled to close the Account(s) and pay the monies in the Account(s) to the Customer.

 

no estate duty if death after 2008

http://www.nea.gov.sg/passesaway/notice.htm

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