PROBATE AND ESTATE ADMINISTRATION IN MALAYSIA
- Msrs Melanie
- Oct 12, 2021
- 3 min read
Updated: Nov 1, 2021
STEPS IN AN ESTATE ADMINISTRATION
• To identify the assets of the deceased
• To pay off the deceased's debts and liabilities, if any
• Distribution of the deceased's estate (testate / intestate)
Testate – Died leaving a will
Intestate – Died without leaving a will / will is invalid
WILLS
A will is a document which contains a person’s intentions on the distribution of his or her assets at death.
Section 2 of the Wills Act 1959 defines a will in technical terms as “a declaration intended to have legal effect of the intentions of a testator with respect to his property or other matters which he desires to be carried into effect after his death and includes a testament, a codicil and an appointment by will or by writing in the nature of a will in exercise of a power and also a disposition by will or testament of the guardianship, custody and tuition of any child.”
ADVANTAGES OF HAVING A WILL
Set up a testamentary trust for your minor children, heirs with special needs or charities
Ease of determining the beneficiaries and how the assets are to be distributed
Select a trustee and executor to administer the estate
Choose the guardian of your minor children
Minimize the chances of family disputes over property
Speed up the distribution process considerably
Reduce the costs of administering your estate
Express your wishes for your funeral arrangements
GRANT OF PROBATE
Grant of Probate is a grant under the seal issued by the High Court to the named executor(s) in the will.
A maximum of 4 executors can be appointed (if acting jointly) to manage and distribute the estate.
The executors shall apply for a Grant of Probate to the High Court, which would release the estate and authorize the executors to pay off debts, sell or transfer property and distribute the assets to the beneficiaries. In this case, no distribution order, guarantors or sureties are required.
If the executor withdraws or is unable or suddenly becomes incapacitated to administer the estate, the Court will grant a Letter of Administration with Will Annexed and appoint administrators in accordance with the Probate and Administration Act 1959.
DOCUMENTS NEEDED FOR GRANT OF PROBATE
Death certificate;
The original Will;
Identity card (IC) of the Executor;
List and Identity Cards (IC) of the Beneficiaries;
List of assets of the deceased;
List of liabilities of the deceased; and
Any other documents that the lawyer required from time to time.
WHAT HAPPENS IF YOU DIE WITHOUT A WILL?
The Distribution Act 1958 determines who gets what if you are a non-Muslim and if you pass on without a will. In Sabah, the Intestate Succession Ordinance 1960 will apply.
If the deceased dies leaving... | Parents get... | Spouse gets... | Child(ren) gets... |
Parents only | whole estate | - | - |
Spouse only | - | whole estate | - |
Child(ren) only | - | - | whole estate |
Parents and spouse | ½ | ½ | - |
Spouse and child(ren) | - | ⅓ | ⅔ |
Parents and child(ren) | ⅓ | - | ⅔ |
Parents, spouse and child(ren) | ¼ | ¼ | ½ |
GRANT OF LETTERS OF ADMINISTRATION
If someone dies without leaving a will (intestate), the asset distribution is left to the administrator.
Any persons who have an interest in the estate may apply for the Grant of Letters of Administration.
The process of extracting the Letters of Administration depends on the value of the estate, whether there are immovable property / real estate in the composition of the assets.
For estates :
- With assets of value that are less/equal to RM600,000 without immovable property, the applications are filed to Amanah Raya Berhad under the Public Trust Corporation Act 1995;
- With assets below RM2 million which includes immovable property, it is governed under the Small Estate (Distribution) Act of 1955; the application is filed to a District Land Administrator;
- With assets that exceed RM2 million, the application is filed to the High Courts in Malaysia.
DOCUMENTS NEEDED FOR GRANT OF LETTERS OF ADMINISTRATION
Death certificate;
Identity card (IC) of the Administrator;
List and identity cards (IC) of the Beneficiaries;
List of assets of the deceased;
List of liabilities of the deceased;
Administration oath if there is any minor interest;
Renunciation by other beneficiaries who are entitled to the grant but did not apply; and
Any other documents that your lawyer may require, from time to time.
DIFFERENCES BETWEEN PROBATE AND LETTERS OF ADMINISTRATION
PROBATE | LETTERS OF ADMINISTRATION |
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