Malaysians may not be aware but here’s how it is done. 

What is a Grant of Probate? 

Before we go further, allow us to explain what a Grant of Probate (GOP) is. A GOP is a legal document you need in order to have the power and authority to administer the dead person’s estate. Estate is a loose term to refer to all the assets and properties under the deceased’s name. 

If the deceased has a valid will, then you will next need to apply for a GOP. The timeframe to apply for a GOP document takes around 4 to 6 weeks. However, that timeframe may take longer depending on how complex the matter is. It is possible for individuals to apply on their own, there will be quite a number of paperwork needed. You may hire an experienced law firm to help reduce the stress for yourself and make the process smoother. 

What if there is no Grant of Probate? 

If there is no Grant of Probate, then you will need a Letters of Administration (LOA). A LOA is issued when the deceased has no will, valid or not, in their name. Their next-of-kin will need to obtain such documents where they can apply for one from the High Court of Malaysia. 

Again, like applying and obtaining a GOP document, the process may take several weeks. Depending on how complex the situation is, the application timeframe may take longer than usual. 

Where does the Malaysian Government come in then? 

This is what the Malaysian government will do for you in such situations. They have implemented laws to ensure the next-of-kin are able to obtain their portion of the assets and properties in fairness and in the smoothest ways possible. 

a.      Distribution Act  (1953) 

In the event that your deceased family member did not leave behind a will, valid one or not, then there is the Distribution Act (1953) for you. The Malaysian government has implemented such law so that just in case you cannot obtain the assets and properties smoothly, you may go to them for help. 

You may refer to the below table for the distribution of the available assets once held by the deceased. 

Please be reminded that the abovementioned table is the distribution detail for West Malaysia and Sarawak. However, if you are from Sabah, you may be subjected to a different set of rules. 

The Distribution Act is not applicable to Muslims. It is only applicable for non-Muslim citizens and residents of Malaysia. Under Islamic Law, the deceased person’s estate will be distributed in accordance with the Holy Al-Quran and hadith. 

b.  Public Trust Corporation Act (1995) and Probate and Administration Act (1959) 

No trustee to help you distribute your assets? That’s not going to be a problem for you. Not every appoints a trustee for their own assets for various reasons. And that is perfectly all right. If you cannot appoint a trustee for reasons that are their own, the Malaysian government has their own trustee and probate divisions. No sweat there! 

A trustee will be appointed for you and your case and they will see through the case for you for the length of the case. If the deceased has left behind a sizeable estate, you may or may not have to pay a processing fee. Refer to the table below to expect roughly how much you will need to pay.

 Table Screenshot via PROPERTY GURU

Bottom Line 

People always thought the government does nothing or little for such matters for their citizens. In all honesty, they do help – just that most people are not aware of it. Just in case your family member passed away and left behind no will, you can always turn to the government for help. If you need further assistance or have any enquiries, feel free to reach out to us for help. We are more than happy to help you in this matter.

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.

The general understanding of having probate in Malaysia is pretty standard. You have properties, assets, and money in your bank accounts. To make sure your next-of-kin gets it when you die, you will write a will saying they will get a certain percentage of it evenly distributed. If there’s a need to contest it, it will go to probate court to be sorted out. 

However, there are some people who do not have assets and money when they pass away. When they die, they have essentially left nothing to their next of kin. Or some people work in low-paying jobs, hence do not have much in their accounts when they pass away – never mind if they have properties or not. 

If you are someone who falls in the latter group, you may wonder whether there is a need to get a will or not. You may also ask if you need probate too. 

The questions are valid. In this article, we will talk about if you need probate when you pass away – if you have no assets and monies. 

How Do Assets And Money Get Distributed? 

The general understanding is that if you have a will, your assets and monies will be distributed according to what your will said. You can distribute, for example: 

• 30% to child
• 30% to spouse
• 40% to a friend or any non-family related person 

Sometimes, some people allocate a certain percentage of their assets to NGOs, religious bodies, or charities. It depends. 

However, some people may not leave a will behind. In this case, the assets will go to Bank Negara Malaysia or the Malaysian Government. The next of kin will have to bring a Letter of Administration or Grant of Probate to Bank Negara Malaysia or the Malaysian Government to get the money and assets back. Typically the assets and monies will be distributed according to the Distribution Act of Malaysia. 

If no one came to claim the assets and monies, then it will forever stay with Bank Negara Malaysia or the Malaysian Government. Sometimes there are cases where the assets and monies will be left untouched for many years. The Malaysian government also cannot use the money or assets either. 

Do You Need A Probate When You Are Penniless? 

People usually think you only need probate when you don’t have a will, have monies and assets, or when a will is being challenged. While it’s true in all cases, people will also get probate when they die penniless. 

Here are some of the scenarios when you need probate even when you didn’t have money and assets. 

1. You left behind debts 

No assets and monies do not mean you didn’t leave behind debt. Debt cannot be written off unless the institutions decide so. Let’s say you have credit card debts. Your spouse, child, or partner’s name is on the secondary card. When you’ve passed away you have left behind a sum of credit card debt. 

That means whoever has signed on with your card’s secondary card will have to help pay off your card’s debt. This is provided the secondary cardholder is still alive. 

2. Outstanding unpaid income tax 

You can’t run away from outstanding income tax you haven’t paid. Usually, when you haven’t paid for your income tax, the Malaysian government will use your Employee Provident Fund (EPF) money to pay off whatever income tax money you owe. 

You cannot contest this decision. Probates will be unable to help you in this case either. If there is any money left, it will be evenly distributed to the family members in accordance with the Distribution Act of Malaysia. 

3. Creditors you owe money too 

In life you may have owed some people any amount of money. It may not necessarily be from banks and it can be from friends. The process of probate is an opportunity for creditors to come to court and request payments for the money you owe them. If there is no money or assets left, they will not receive any money. 

Many times the court will make a final accounting for all of your assets and pay the creditors. Only then do they close the probate estate. As soon as the probate is closed, the creditors will no longer be able to get the money the deceased owe them. 

Conclusion 

The bottom line is that you will still need probate regardless of whether you’ve left behind assets and money or not. Most times probates are to address any debts left behind by the deceased, only then are the remaining money and assets (if any) be distributed to the next of kin.

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.

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