What are their roles? 

To make things easier, let us summarize what their roles are. 

Guardians 

A guardian or guardianship may be needed when the individual loses capacity to make sound decisions with their own health and safety. If the person has dementia, Alzheimer, traumatic brain injuries, physical disabilities, or mental health issues, then they will quite likely have problems managing on their own. They will have problems with making decisions on their living arrangements, treatment, and personal care. 

If the person suffers from such scenario, their relative may petition for guardianship. A guardianship is important when there is no healthcare power of attorney present and no clear person’s instructions to follow. 

Conservatorships 

Conservators or conservatorships are sought after mostly for the financial aspects of the individual. Although the person may be physically challenged, they may not be mentally challenged. If the person is physically challenged but not mentally challenged, the person can still make sound judgement and decisions regarding their financial aspects of their life. 

If the person is mentally challenged and cannot make sound decisions for their finances and their assets, then a conservator will need to be appointed. A conservator can oversee running the financial aspects and estate of the person they are to look after. 

What are a conservator and guardian’s limits in managing a ward’s finances? 

As a guardian and a conservator have very distinctive roles, there are bound to be limits to their roles too. A conservator cannot do everything a guardian does and vice versa. There may be some overlap and crossover between their roles, however, there are certain areas where it’s exclusive to just their roles. Here are some key differences in their limits. 

Bottom Line 

Conservators and guardians may have very distinctive roles in their wards’ lives. Though their roles may cross over and overlap at certain areas and points in the wards’ lives does not mean their roles are one and the same. There are certain limitations to the roles of the conservator and the guardian. Above are some of the main differences. 

If you need help with appointing a conservator or a guardian, we are more than ready to assist. If you have any questions, feel free to reach out to us for further assistance.

Secret trusts are indeed a thing in Malaysia. People don’t often think much about it or think that it is illegitimate. We understand that people often see secret trusts as not valid, and we can see where they are coming from. 

People may have this thinking that if it is made in secret, it must either be illegal or have no legal value. It would just be another piece of paper. However, if you fully read into it and the situation surrounding it, you would understand the scenario better. 

In this article, I will summarize how secret trusts in Malaysia are valid. 

Are secret trusts valid in the first place? 

To be short and precise: yes, secret trusts are very valid in Malaysia. 

Many people are quick to dismiss secret trusts in Malaysia. However, many people don’t know it can be just as valid when legalized by a lawyer. It holds just as much validity as an open, “not secret” will. 

When the person dies and leaves behind 2 wills, one secret and one not in secret, both wills will have to be followed thoroughly. Just like how people will uphold open, “not secret” wills. 

However, there can be times when secret wills can fail also. When the secret will fails to be recognized or be legalized, then the known will is the legal will that is to be followed by all beneficiaries, trustees, and executors. As long as the known will is legal then it is less likely that it can be challenged, although contestable. 

People should not doubt the existence of a secret will or trust. A secret will or trust exists because it serves to facilitate the intentions of certain parties related to the owner. It will still be treated in equal to the open or public will. It will, however, be treated outside of the formalities of the Wills Act 1959. Hence, it confirms the validity of secret trusts in Malaysia. 

If the secret will fails, then the appointed trustee will be entitled to accept the assets held in trust in entirety. It can be as with no obligation to the intended beneficiary at all. 

Circumstances where a secret will is needed or exists 

Some people may wonder why there is a need for secret wills. People may question why all the secrecy surrounding the owner and their assets. There are some circumstances when a secret will is needed. Here are some scenarios where it is needed. 

a. The owner having a secondary partner

Not everyone is made to be 100% faithful to their partners. Some people may be seeing someone else – a mistress or another man. If the owner is seeing another mistress and has kids with her, then he may have a very good reason to provide and leave behind assets for them. 

In this kind of scenario, the secret will can be contested and it can become a very messy situation. The process can be very long and sensitive to be dealt with.

b. Linked to parties not agreeable by the owner’s family members

There are times when the owner may be in the company of people or societies that are not agreeable with their family members. Their family members may not want their spouse or parents to be linked with these people or societies, hence making sure that none of the owners’ assets go to them. 

However, the owner may still want to give some or part of his assets to these people or society. Again, this can be a contestable will. 

Bottom Line 

Secret wills exist whether people like it or not. People may not be able to accept it. However, they are as legal as known wills are. 

Inheritance in Malaysia usually works in a very straightforward way. When it comes to inheritance, things will be easier if it involves a will. It can also be easier if your accounts have named beneficiaries in them. 

However, there are times when inheritance is not as straightforward as it seems. There are certain facets that make the situation complicated. 

In this article, we will try to cover as much as possible regarding inheritance in Malaysia. I will try to make it as simple for all of you to understand how it works too. 

Having a Will is Important 

Let’s establish the basics first. If you are still alive, it’s better if you create a will and legalize it with the help of a certified lawyer. There are many kinds of wills. So make sure you do all the necessary research on the different kinds of wills available to you. 

Since there are so many kinds of wills available to you, you do not need to have all of them. Most times, people just need a simple and straightforward will. In a simple and straightforward will contains items such as: 

• Named beneficiaries
• Percentage of monies or a property that is going to the named beneficiaries
• Trustees
• Having all your properties, monies, and assets listed in this will 

In a simple will, it’s best that you update it periodically. Review it to see if you have any new properties and beneficiaries to add to this will. Even if let’s say you do not have much money (less than rm10,000 to your name), just make one anyway. Now you may not have a lot of money and properties to your name. However in the future, if you ever amassed a whole new amount of wealth, then yes an updated will can be useful. 

There are also comprehensive wills for different purposes. Like for example, there can be living wills, wills for survivorship in properties, and whatnot. Comprehensive will is not for everybody. It’s for people who have “more things to their names”, therefore these kinds of wills are for these kinds of people. 

What If You Don’t Have a Will? 

If you do not have a will, then things will be a bit harder for you. However, it’s not impossible to have the inheritance groundwork laid down and be distributed to the next-of-kin. 

If there isn’t a will, then you will have a lot of problems and disputes with your family members when it comes to who gets what. 

These are what you should look into if you are met with any inheritance disputes. 

1. Refer to Malaysia Distribution Act 1958 

This is the most common inheritance law followed and practiced by Malaysians if there is no valid will. We will go out on a leg and arm here to include the Inheritance (Family Provision) Act 1971. Both the Distribution Act and the Inheritance Act will lay out the conditions of inheritance among the deceased’s next-of-kin. 

There is useful information in the Distribution Act 1958 saying how much each living next-of-kin will get from your assets and properties when you have passed away. It includes information such as the percentage % each surviving family member will get. If you have no spouse and no kids, your properties will go to your siblings and parents. It includes a lot of useful information. 

However, don’t forget that before you receive the assets, monies, etc., the executor will need to find out all the properties and monies the deceased has left behind. The length of time for the executor to locate all assets and properties can take anywhere from a few months to many years. 

2. Legitimate children

This is a complicated matter when it comes to inheritance and inheritance laws in Malaysia. Sometimes you have divorced parents or a deceased parent who has biological kids. These biological kids may or may not have a share in inheritance when it comes to those kinds of things. It all depends on the scenario. 

For example, the father has another child with his mistress. Something happened to the father and he passed away. The father did not leave behind a will for any of his family members. If this is the case, can the child bear out of wedlock inherit anything from his deceased dad? Since that the father is his biological father, but not the mother his biological dad was married to. 

Or for example, the mother has 2 kids from her first marriage. Then she re-married a new man. With the new husband, she can have a will made for any kids between her and her new husband. But what about the 2 kids she had with her previous husband? If she passes away and does not leave any wills behind, will her 2 kids from her previous marriage be entitled to any of the inheritance from her new husband? 

It really all depends on the scenario. There is no 1 straight line or 1 rule that’s “one size fits all”. Lawyers and executioners will have to do their jobs and find out if these kids from previous marriages or out of wedlock are entitled to any inheritance if there is no will. 

3. Non-family and non-relative persons named in your will 

Here’s the thing about wills – even when you have written one and legalized it. Your family members can still contest and question its contents. It can be a lot of scenarios. Even if you have finalized your final will and legalized it, it does not mean your immediate family members can accept it. 

For example, in your will (and any other accounts and assets), you have listed a mistress, a close friend, a society, etc., as the beneficiary. However, even though these people or societies are more than happy to have a cut in your assets, it does not mean they will get it in the end. 

Your family members can take your will to and have it contested and challenged. If they win the court case, whatever you have promised your friend/mistress/organization can be reverted. But this is only when your family has a very strong and solid case to it. If not, then whoever non-blood-related people are named in your will as beneficiary will get the assets you have listed for them. 

4.  No non-family and non-relative persons named in your will 

Here’s the thing with having wills. Even if you did not name an organization, a mistress, or a close friend in your will, your immediate family members can still find issues with it. The biggest reason why they are unhappy with the inheritance shares is that they don’t agree with how it’s split. 

Some people will, for example, give their spouse 1/3 of their assets, 1/3 be given to the first child, and the final 1/3 to their youngest child. Some family members think this is “unfair”. They may think maybe as parents they should get more, whereas the kids get less. 

Or for some people, they think that the sons should get more because sons are “more important than daughters”, right? Or vice versa because girls don’t earn as much as their male counterparts so they should get more. 

Again this is another family dispute that you will have to deal with before and after you have passed away. You’ll be unable to please anyone and everyone. So that means you will need to be extra firm in your final decisions. 

Conclusion 

There are many possibilities for family disputes over inheritance. You cannot solve all of them but it’s worth being transparent and open about who gets what after you have passed away. 

Business succession is perhaps something that may not be the first thing you thought of when running a business. Most times people will think of starting up a business and keeping it afloat. With so many things to do and manage in a business, trust us, business succession will be one of the last things you will think of. 

Most business owners don’t even think about business succession and who will run their business until it’s too late. You may have several lines of thoughts when you are running your business. For some people, they think that they may eventually sell their business and earn some profits off it. Some people run businesses for the sake of thinking about their kids and grandkids. For those kinds of people, running a business empire means they can have something to pass on to their kids. 

Regardless of what you have in mind for your businesses, we hope that you will take some of the factors we have listed here into your consideration. 

Reasons To Take Business Succession Seriously 

There are many reasons why you should be prudent and start planning for your business’s long term plans. In this article, we have condensed everything and put a list of reasons why you should take business succession in earnest in Malaysia. 

1. Buy insurance for your company 

There are plenty of business insurances that are available in Malaysia. Business insurances usually work in a way that helps prevent businesses from collapsing on their own. However, it does not mean it will close down businesses entirely due to acts of gods and similar problems. 

You can also look into keyman policies where it covers important people in the company and business. Usually people will choose to cover the CEO and other board of director members as they are the key players in the company. There are also cases where important people who are not board of director members get covered under keyman policies too. Usually those are key players and people who make important decisions in the company. They are the kind of people who are difficult to replace.

2. Choosing a successor 

This part means you will choose someone who is capable of continuing your business in case something happens to you. Just in case you passed away or are rendered unserviceable to the company, then the appointed successor will step into your shoes and assume your role. Do this while you are alive or when you are still of sound mind. 

Appointing a new successor (or naming one) in advance will help with simplifying the transition and set appropriate expectations. You can train the successor “from scratch” and be up to your expectations by the time you have passed away. 

In the case that you did not get to choose a successor, it’s ok. Some business owners consider liquidating the assets and closing the business. Some other companies just continue the operations without the business owners. 

3. Matching talents to company tasks 

When hiring someone to keep the functionalities of the company, you will obviously hire people with matching talents. Upon taking these new hires onboard you will train them to be able to help run the company when you are no longer around one day. 

We have talked about how some companies do not have owners in order to keep running. Having said that, as a business owner you can train a team of people who are able to run the company in your absence. When you have passed away, these people can help your company and hire matching talents too. 

The only downside to this step is that you will need to train a lot of people in order to keep your business running long term. If it’s something you can manage on your own, then perhaps it’s not too bad. 

4. Setting standards for your company 

KPIs are ubiquitous across all companies of all sizes to keep the company up and running. When you are still around, you can actively enforce metrics to managing and running a successful company. Train your successors to uphold the same standard you have for your own company. 

When you are no longer around, your successors will make sure that your standards are upheld. Your company may be around for a very long time after you have passed away. 

Conclusion 

Having said all of that, we hope that you are able to find a fitting successor who is able to replace you when you are gone. Although you may not find a fitting successor, you can also choose to train a team of people to continue running your company when you have passed away. Business succession does not mean you choose only 1 person to help you run your company when you have passed away. It can also mean training several people to ensure that your company continues operation when you have passed away.

An executor is someone who is appointed by the law courts to see through the distribution of a dead person’s will (if there is one). Even though if the deceased has no will, an executor will still be appointed on his or her behalf. The executor’s role is pretty universal across most, if not all cases. 

An executor is not to be confused with a trustee. Although both roles are similar and quite close, there are a few stark differences to both. 

Generally a trustee is appointed by the deceased when he or she is still alive. Everyone will need to agree to the trustee’s appointment legally. When the person passes away, the trustee will see to it that the assets and monies will be distributed according to what the will says. 

An executor’s role is similar to that of a trustee’s. However, there are a few things that an executor can do that a trustee cannot do. 

Executor’s Duties in Probate and/or Will 

Here are some jobs an executor has a distinctive role in playing. When you have passed away, these are what an appointed executor do: 

1. Find out where the will is 

The first thing the executor has to do is to locate the latest will of the deceased first. They will have to do this first before applying for the Grant of Probate with the original copy of the will. 

As soon as the latest original copy of the will has been located, the executor will then discuss the details of the will and aspects of the estate administration. Only then will the executor make sure that the probate process goes in a smooth process. 

2. Getting a lawyer to help with applying for a Grant of Probate 

After locating the will, the executor will work with a lawyer to apply for a Grant of Probate from the High Court. This can take anywhere from 3 to 6 months, which depends on how fast the court works with getting the application done. 

However, sometimes the Grant of Probate may take longer than 6 months to settle. Think about how sometimes the estate and money can be disputed by family members and people named in the will. There may be other issues surrounding it such as an unnamed property or bank account that are not listed in the will. With all that being said, the Grant of Probate may take some time to settle before any of the money and assets gets distributed accordingly. 

3. Settling any outstanding debts 

As soon as you have determined and be sure of what the deceased’s estates are, you will then have to notify the banks next. Let the banks know that the account owner has passed away (show proof where needed). The executor may need to set up a separate account for the purpose of administering the estate. 

After that, find out if the deceased owes any outstanding debts. It may be unpaid taxes or loans. There may be some people where the deceased may owe money to while they are still alive. Anyone who was owed money by the deceased will be given a period of time to submit their claims (with proof). If nobody comes forward after a while, then consider the case closed. The money and assets will be distributed accordingly to what the will says. 

Again, this can take quite a long time to settle. As sometimes there may be a lot of money to pay off. It’s not something that takes less than 2 years to settle. 

4. Determine and locate the named beneficiaries 

While you are settling all the debts and listing down the bank accounts and assets, you will also have to determine and identify the named beneficiaries in the will. Then start seeing how the assets and money are being distributed to each named beneficiary. 

If there are no named beneficiaries, then the executor will see to it that the assets and monies will be distributed according to the Malaysian Distribution Act. 

What Happens If No Executor is Appointed? 

If no executor is appointed, then the family of the deceased will have to agree who will be the Administrator(s). An Administrator will oversee the management and distribution of the assets and monies to the beneficiaries. Typically, the spouse of the deceased is the Administrator if the surviving children are not of legal age yet (18years in Malaysia). 

If the deceased’s spouse is an elderly person (or of unsound mind individual), then the deceased’s children will take up the role. However, the child has to be of legal age (18 years old) and of sound mind. 

As soon as an Administrator has been chosen, the other family members will sign a Renunciation. It means the other family members will renounce their right to apply in court as an administrator. They will sign a legal document known as “Renunciation”. 

As soon as everything has been settled, only then will the assets and monies be distributed as what the will has laid out for. If the assets and monies are not finalized, if the debtors have not completely been paid off, then the length of time for the money and assets to be distributed will take a long time to settle. 

Conclusion 

The bottom line is that an executor will most likely be appointed to help distribute the monies and assets alongside the trustee. Most times you will be unable to say to have an executor being appointed. However, there will be rare cases and special cases where an administrator will be appointed in place of an executor.

Challenging a will is not an uncommon practice. People do it when they are not happy or satisfied with the final will. There can be a myriad of reasons. 

However, just because people challenge a will is not impossible, it is often a difficult matter. Most wills will pass the probate without much issues or challenges. Oftentimes, wills are seen as the voice of the deceased. As the person is no longer able to speak up (obviously when they’ve died), the court will often stick to the wills’ every last word strictly. 

When a will is challenged and is successful, the will can be voided entirely or partially. There will be times when the previous will can be reinstated so do not be surprised at it. If the will is voided, then the asset and money distribution will follow the Malaysian intestacy law or distribution act. And usually it will be guided by familial relationships. With that being said, if you are a close friend or mistress who is promised money and assets by the deceased, it’s quite likely you will never get any of that. 

Info via Loanstreet

However, if the deceased did not leave behind a will, then the immediate family and relatives will usually get the assets and monies in equal shares. But in some cases, your entire estate will go to the government. 

Are You Able to Block Grant of Probates? 

Anyone can challenge a grant of probate, but are you able to block it? The short answer: yes. 

If you doubt the validity of a will, you can enter a caveat against the deceased’s estate. It will then prevent the grant of probate from being issued until the caveat is removed. The caveat is effective for 6 months. It is to allow time for people to enquire before the final decisions are made to bring back a claim. You can renew the caveat multiple times with periods of 6 months at a time. 

Take note that the executors or beneficiaries can enter a warning to the caveat at any time. It needs the caveat submitter to state in a court appearance the warning about why they are contesting the will. It has to be done in 14 days of the warning issued. Though a short time frame does not offer enough time to carry out the necessary investigations, the administrator of the estate cannot continue until the dispute has been reached. 

Can The Will Be Overturned After Probate? 

Yes, you can overturn a will after probate. But it is best to take action as soon as possible. As soon as the grant of probate has been issued, it will be necessary to bring a claim for it to be revoked. 

If by any chance that you delay in bringing your claims to the court, it’s quite likely the executors have distributed the assets and monies to the deceased’s beneficiaries. There is a very small chance you are able to recover the assets from the beneficiaries. However, there is also a risk where the beneficiaries may have spent the monies or sold the assets. 

Contesting and challenging a will after the grant of probate has been obtained tends to be complicated. You will be recommended to seek legal advice and support – if you think there is a very solid reason for you to challenge a will. 

When Can You Challenge A Will? 

Here are a few scenarios and reasons when you can challenge a will. 

• Testamentary capacity: this is about at what age can you challenge a will. You will need to follow the legal age of Malaysia, which is 18 years of age. If you are not officially 18 years of age yet, then you wouldn’t be able to challenge the will until you have reached legal age. In some rare cases and jurisdictions, minors who have served in the military or are married are given the right to make a will. Even if you are past 18 years of age, it does not mean you can or are able-bodied in challenging a will. Many times it requires you to be 18 years of age, be of sound mind, and not be under the influence of any substances and alcohol. 
• Fraudulent will: you can challenge a will if you can show evidence that it is made by fraud, forgery, or undue influence. Typically this happens when the deceased has been manipulated as a vulnerable person, and left a whole lot of money and properties to the manipulator. 
• Having a latest valid will: if you have a last will that is valid, you can use that to challenge the existing will that is being followed by the courts. There are requirements to destroy older wills (and best that you do). 

Conclusion 

In conclusion, you can and are able to challenge an existing will as long as you have sufficient evidence to back you up. When challenging a will, make sure that you do it legally via a court. If you need any further advice, do contact us for further assistance.

Email: info@nababanassociates.com

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