Can a Beneficiary Replace the Executor Named in a Will in Malaysia?
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Pengurusan Pusaka
If a will names an executor but that person cannot or will not act, the beneficiaries cannot simply choose a replacement executor among themselves. The correct next step depends on what has happened to the named executor and whether another executor named in the will can still prove it.
Where the executor route has genuinely failed, Malaysian law allows the Court to grant letters of administration with the will annexed to another suitable person. A beneficiary may have priority to apply in some circumstances, but the authority comes from the Court - not from a private family appointment.
This article focuses on the civil probate and administration framework relevant to estates in Peninsular Malaysia. Muslim estates may involve additional Syariah and estate-distribution issues, and different rules or procedures may apply in Sabah and Sarawak.
Quick answer
A beneficiary does not become executor simply because the family agrees to appoint them.
If the will names another executor who can act, that executor may be able to obtain probate.
An executor who does not want to act may formally renounce the right to representation.
An interested person may in appropriate circumstances use a citation process where an executor or another person with a prior right does not proceed.
If the executor route fails in one of the situations recognised by section 16 of the Probate and Administration Act 1959, the Court may grant letters of administration with the will annexed.
Certain beneficiaries have statutory priority for that grant, but priority is not the same as an automatic appointment.
The will does not automatically disappear merely because the executor cannot act.
Why can't the beneficiaries simply appoint a different executor?
The executor's position comes from the will.
The Probate and Administration Act 1959 defines an executor as the person to whom the testator has entrusted execution of the last will. Section 3 provides that probate may be granted to an executor appointed by a will.
That means the beneficiaries cannot normally rewrite the executor appointment after the testator's death by signing a family agreement saying that somebody else is now the executor.
The question instead becomes:
Is there another executor named in the will who can act?
Has the original executor died before taking probate?
Has the executor renounced?
Has the executor failed to proceed after a citation or other required step?
Has the executor route failed in a way that requires another form of representation?
Those questions determine the grant that should be sought and who has the right to apply.
What if the will names more than one executor?
A problem with one executor does not automatically mean a beneficiary has to take over.
Section 3 allows probate to be granted to executors appointed by the will, and section 6 recognises that where probate is granted to one or some of two or more named executors, the proving executor or executors may exercise the powers of the personal representative.
So, if the will names two executors and only one is willing and able to proceed, the first issue is usually the position of the remaining named executor - not whether a beneficiary can nominate a new person.
The will and the status of every named executor should therefore be checked before deciding on a new application route.
What if the named executor does not want to act?
The Act provides for renunciation.
Under section 8, a person who is or may become entitled to representation may expressly renounce that right. The Act specifies how an express renunciation may be made.
This is different from the executor simply telling the family, "I do not want to do it."
If another person needs to seek representation, it is important to establish the executor's legal position properly rather than relying on an informal family understanding.
What if the executor does nothing?
Section 9 provides a citation mechanism.
A person having or claiming an interest in the estate, or a creditor, may cause a citation to be issued to an executor or another person appearing to have a prior right to representation, calling on that person to accept or renounce the right.
The Act also deals with the consequences of failing to appear or failing to proceed after appearance. Depending on the circumstances, the person may be treated as having renounced the right to representation.
A citation is therefore a legal process, not simply a reminder letter to an inactive executor. Whether it is the correct step depends on the facts and the procedural position of the estate.
What if the executor has died?
Timing matters.
Section 7 provides that an executor's rights in respect of the executorship cease in specified circumstances, including where the executor survives the testator but dies without having taken out probate, is cited to take out probate and does not appear, or renounces probate.
If the sole executor dies before obtaining probate, the family should not assume that the will has become ineffective. Instead, the next grant must be identified from the will and the statutory framework.
If another executor is named and can act, that may resolve the problem. If there is no effective executor route left, administration with the will annexed may need to be considered.
When does administration with the will annexed become relevant?
Section 16 of the Probate and Administration Act 1959 addresses failure of executors.
It covers situations including where:
no executor is appointed by the will;
the executor or all executors are legally incapable of acting or have renounced;
no executor survives the testator;
all executors die before obtaining probate or before completing administration; or
the executors appointed by the will do not appear and extract probate.
In those circumstances, the Court may grant letters of administration with the will annexed to a person the Court considers fit to administer the estate.
This is the key legal distinction for a beneficiary asking whether they can "replace" an executor.
The beneficiary is not privately becoming the new executor. Instead, an eligible person may apply to the Court for a different form of representation, while the will remains relevant to the administration of the estate.
For the broader distinction between Probate and Letters of Administration, see Grant of Probate vs Letter of Administration in Malaysia: Which One Applies?.
Can a beneficiary apply instead?
Potentially, yes - but not every beneficiary automatically has the same priority.
Section 16 sets out a statutory order of prior right for letters of administration with the will annexed. The order includes:
a universal or residuary legatee;
the personal representative of a deceased universal or residuary legatee;
a beneficiary under the will who would have been entitled to letters of administration if the deceased had died intestate;
a legatee with a beneficial interest; and
a creditor of the deceased.
The actual applicant therefore depends on the will, the beneficiary structure and what has happened to the executor or executors.
A person being the "main beneficiary" does not by itself prove that the person can simply take control of the estate. The relevant priority and grant still have to be established.
Does the will still apply if somebody other than the executor administers the estate?
Yes, administration with the will annexed does not automatically erase the will.
Section 17 provides that where administration with the will annexed is granted, the will is to be performed and observed in the same manner as if probate had been granted to an executor.
This is why it is misleading to describe every executor-failure case as though the deceased had died without a will.
There may be an administrator instead of the originally named executor, but the will can continue to govern the administration and distribution of the estate.
What if the executor is overseas or difficult to contact?
Being overseas is not automatically the same as dying, renouncing or being legally incapable of acting.
The executor's actual position should first be established. Depending on the circumstances, the law also recognises certain limited grants involving absent persons and authorised attorneys.
Do not treat geographical absence alone as permission for the beneficiaries to replace the executor informally.
What documents should the family prepare?
To identify the correct route, prepare as much of the following as possible:
the deceased's death certificate;
the original will and any codicils;
the names and contact details of every executor named in the will;
the current status of each executor - for example, willing to act, unwilling, deceased or uncontactable;
any written renunciation already signed;
any citation, caveat, probate papers or previous Court grant;
the names of the principal beneficiaries;
a list of the deceased's main assets and liabilities; and
a short chronology of what has happened since the death.
Current Malaysia.gov guidance for estate applications also identifies common starting documents such as the death certificate, identification documents, the will, asset information and proof of ownership. The exact documents required for an executor-failure case depend on the grant being sought and the facts of the estate.
What should happen before anyone files an application?
A useful sequence is:
Read the will carefully. Identify every executor and any substitute appointment.
Establish the status of each executor. Do not assume silence, absence, death and renunciation have the same legal effect.
Check whether probate has already been granted. The position can differ significantly after a grant has been issued.
Determine whether a remaining named executor can proceed. If so, a replacement administrator may not be necessary.
If the executor route has failed, identify the appropriate grant and applicant. This may involve administration with the will annexed and the statutory priority under section 16.
Prepare the evidence required for the application. Any renunciation, citation, death of an executor or other material fact may need to be evidenced properly.
That sequence prevents the family from filing the wrong application simply because everyone agrees on who should "take over".
When legal coordination becomes important
Executor-failure cases can become more complicated than a straightforward probate application because the solicitor may need to establish both why the named executor route is no longer available and who is entitled to seek the next grant.
Depending on the facts, the work may include:
reviewing the original will and executor appointments;
checking whether another named executor can prove the will;
advising on renunciation or citation where relevant;
identifying the applicant with the appropriate prior right;
determining whether administration with the will annexed is the correct route;
preparing the appropriate High Court application and supporting evidence; and
coordinating the grant with the later administration of the estate.
Where there are minor beneficiaries, continuing interests, a caveat, competing applicants or a dispute over the will or executor, additional issues may need to be addressed before the estate can proceed.
"Where the executor route has failed, the answer is not to rewrite the will by family agreement. The next step is to identify who has the right to seek the appropriate grant and what the Court requires for that application." - Akmal Saufi Mohamed Khaled, ASCOLAW
Frequently asked questions
Can all beneficiaries sign a letter appointing a new executor?
Not ordinarily. A family agreement does not by itself make a new person the executor named by the will. The proper grant and the applicant's legal entitlement still need to be established.
Can a beneficiary become the administrator of the estate?
Potentially. Where the executor route has failed, section 16 recognises categories of beneficiaries with prior rights to letters of administration with the will annexed. The exact priority depends on the will and the person's position under it.
If the sole executor dies, does the will fail?
No. The executor's death can change the representation route, but section 17 expressly recognises continued performance of the will where administration with the will annexed is granted.
Is administration with the will annexed the same as an ordinary intestate LA?
No. Both are grants of administration, but administration with the will annexed arises in a case where a will exists and the executor-based route has failed or is unavailable. The will continues to matter.
What if the executor simply refuses to respond?
Section 9 provides a citation mechanism in appropriate circumstances. Whether citation is the correct step should be assessed against the executor's status, any prior filings and the facts of the estate.
Key legal references
Probate and Administration Act 1959 - sections 2, 3, 6, 7, 8, 9, 16 and 17.
Malaysia.gov, Procedure for Applying for a Large Inheritance, updated 13 March 2026, for current general estate-application categories and common starting documents.
Disclaimer: This article is for general information only and does not constitute legal advice. Every estate and will can involve different facts, procedural requirements and applicable laws. Obtain specific legal advice before taking action.
Need us to assess who can administer the estate?
If the deceased left a will but the named executor has died, renounced, refuses to proceed or otherwise cannot act, submit the details through the enquiry form below: the will, death certificate, names and status of all named executors, and any existing Court papers.
Those documents help ASCOLAW determine whether another named executor can proceed, whether the executor's position first needs to be addressed, and whether another form of representation such as administration with the will annexed should be considered before we advise on the appropriate scope and next step.
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Penulis
AKMAL SAUFI MOHAMED KHALED
Managing Partner & Founder
