The topic of deceased asset management or estate wealth especially on Letter of Administration, Grant of Probate, Distribution Order and Vesting Order is such an important topic but not covered widely enough. With the team in ASCOLAW we have written a comprehensive article outlining the things you need to know on this topic.
Here are the topics that we will be covering;
IV. Small Estates (Distribution) Act
What is a small estate in Malaysia?
What is the Small Estates (Distribution) Act 1955 in Malaysia?
When does Small Estates (Distribution) Act 1955 will be applicable?
How do I apply for distribution order under small estate (distribution) act 1955?
What form do I need to submit?
What do I need to submit Form A?
How much Land Administrator charge for distribution order under Small Estate (Distribution) Act?
V. Letter of Administration
What is a Letter of Administration, and when is it required?
What is the difference between grant of probate and letter of administration in Malaysia?
Who can issue letter of administration?
What document you need to get a Letter of Administration?
Who is eligible to apply for a Letter of Administration in Malaysia?
What are the documents required to apply for a Letter of Administration, and what are the fees involved?
How do I start the process of obtaining a Letter of Administration in Malaysia, and how long does it take?
VI. Administrator Responsibilities and Legal Issues
What are the responsibilities of the administrator named in the Letter of Administration, and what are the legal consequences of not fulfilling those responsibilities?
Can an administrator dispose of the estate of the deceased in Malaysia?
What happens if one of the administrators of the estate dies?
What is a letter of administration renounce?
What is a letter of administration de Bonis non?
VII. Dealing with Deceased's Assets
Can I write my own will in Malaysia?
Who is a testator?
Can you sign a will digitally?
How to find deceased asset?
How do I claim a deceased bank account in Malaysia?
How is a deceased estate taxed?
What if the beneficiary is a minor?
What is the duty of the guardian of a minor where the minor is a beneficiary
What is the liability of a guardian if guardian fails to fulfill their duties or that damages and losses suffered by the minor due to guardian?
Do you need a death certificate? How do you get it?
How can a family member get his interest registered on land title of deceased estate
How to transfer estate(deceased land) property under my name if I have distribution order?
What order do I need from the court to transfer property that values more than RM2million
I have a vesting order by court. How can I get my name registered on the land title?
Can property be transacted if you die?
VIII. Working with Lawyers and Amanah Raya Berhad
When should I consult a lawyer for assistance with obtaining a Letter of Administration?
How can a lawyer assist me in the process of obtaining a Letter of Administration, and what are the benefits of working with a lawyer?
How much does it cost to hire a lawyer for assistance with obtaining a Letter of Administration, and how are the fees calculated?
What are the qualities to look for in a lawyer when seeking assistance with obtaining a Letter of Administration?
Can a lawyer assist with the distribution of the estate after the issuance of the Letter of Administration, and what are the legal requirements and responsibilities of the administrator and beneficiaries?
How can a lawyer help to resolve disputes or conflicts that may arise during the process of obtaining a Letter of Administration or the distribution of the estate?
What are the legal consequences of not obtaining a Letter of Administration, or not fulfilling the legal requirements for the distribution of the estate?
How much does Amanah Raya charge for its services?
I. Introduction to Estates and Inheritance in Malaysia
· What is an estate?
An estate refers to the total sum of a person's assets, property, and possessions at the time of their death. It includes both tangible and intangible assets such as real estate, personal property, investments, bank accounts, and other financial assets. The estate also accounts for any outstanding debts or liabilities the deceased person may have had. The administration of an estate typically involves settling debts, paying taxes, and distributing the remaining assets to the rightful heirs or beneficiaries according to the deceased person's will or the relevant laws governing inheritance.
· What is the objective of managing an estate?
The objective of managing an estate is to ensure the proper administration, preservation, and distribution of a deceased person's assets and liabilities according to their wishes and the applicable laws. This process involves several key tasks:
1. Identifying and gathering assets: The executor or administrator is responsible for locating and securing all assets, including real estate, personal property, financial accounts, and investments that belong to the deceased person.
2. Settling debts and paying taxes: Before the estate can be distributed, the executor or administrator must settle any outstanding debts, expenses, and taxes owed by the deceased. This may include funeral expenses, medical bills, credit card debts, and any taxes due.
3. Probate or estate administration: Depending on the jurisdiction and the presence of a valid will, the estate may need to go through a probate process, during which a court oversees the administration and distribution of the assets. If there is no will, the estate is subject to the laws of intestacy, and the court appoints an administrator to manage the estate.
4. Distributing assets to beneficiaries: After settling debts and taxes, the executor or administrator distributes the remaining assets to the rightful beneficiaries as specified in the will or in accordance with the laws of intestacy.
5. Closing the estate: Once all assets have been distributed, debts and taxes have been paid, and any other legal requirements have been met, the executor or administrator can formally close the estate.
By effectively managing an estate, the executor or administrator ensures that the deceased person's wishes are respected, the assets are protected, and the beneficiaries receive their inheritance in a timely and orderly manner.
· What is the inheritance law in Malaysia?
Inheritance law in Malaysia is a combination of civil law and Islamic law. The applicable law depends on the religion of the deceased person.
1. Civil law: For non-Muslims, the inheritance law is primarily governed by the Distribution Act 1958 (Amended in 1997). In the absence of a valid will, this act outlines the rules for distributing the estate among the legal heirs, which typically include the spouse, children, and parents of the deceased. The distribution depends on the surviving family members, with specific portions allocated to each category of heir.
If a non-Muslim person dies with a valid will (testate), the estate is distributed according to the provisions of the will. The will must adhere to the Wills Act 1959 to be considered valid.
2. Islamic law: For Muslims, inheritance is subject to Syariah law, which is based on the principles of Islamic teachings. The distribution of a deceased Muslim's estate is determined by Faraid, a set of rules for inheritance outlined in the Quran. Faraid establishes the shares of specific family members, including spouses, children, parents, and other relatives, based on their relationship to the deceased.
Muslims in Malaysia can also create a will called Wasiat, which allows them to distribute up to one-third of their estate to beneficiaries not covered under Faraid rules. However, the remaining two-thirds of the estate must be distributed according to Faraid.
In both cases, the estate administration process involves obtaining a Grant of Probate (if there is a will) or a Letter of Administration (if there is no will) to manage and distribute the estate according to the applicable laws.
In Malaysia, several acts and laws govern the inheritance, administration, and distribution of estates, depending on the religion and circumstances of the deceased. Key acts and laws include:
1. Distribution Act 1958 (Amended in 1997): This act applies to non-Muslims and outlines the rules for distributing the estate among legal heirs in the absence of a valid will. It defines the share allocated to each category of heir, such as the spouse, children, and parents.
2. Wills Act 1959: This act governs the creation and execution of wills for non-Muslims in Malaysia. It outlines the requirements and formalities for a valid will and the process of obtaining a Grant of Probate to administer the estate as per the will.
3. Probate and Administration Act 1959: This act governs the process of administering and distributing estates in Malaysia for both Muslims and non-Muslims. It covers the procedures for obtaining a Grant of Probate (when there is a will) or a Letter of Administration (when there is no will), as well as the duties and responsibilities of the executor or administrator.
4. Small Estates (Distribution) Act 1955: This act is applicable when the deceased's estate is valued below a specific threshold (currently RM2 million) and mainly consists of immovable property. It simplifies the estate administration process and allows for a quicker distribution through the Land Administrator.
5. Islamic inheritance law (Faraid): For Muslims, inheritance is governed by Syariah law, specifically Faraid rules, which are derived from Islamic teachings. Faraid outlines the distribution of a deceased Muslim's estate among specific family members based on their relationship to the deceased.
6. Islamic Family Law (Federal Territories) Act 1984: This act governs various aspects of family law for Muslims in the Federal Territories of Malaysia, including the creation and execution of a Wasiat (Islamic will) and the administration of a deceased Muslim's estate.
These laws and acts serve as the primary legal framework for inheritance, estate administration, and distribution in Malaysia. The specific act or law applicable in a particular case depends on the religion of the deceased and the nature of the estate.
II. Probate and Administration Act
· What is Probate and Administration Act?
The Probate and Administration Act 1959 in Malaysia is a legal framework that governs the administration and distribution of estates, both for Muslims and non-Muslims, when a person dies. The act outlines the procedures and requirements for obtaining a Grant of Probate (when the deceased has left a will) or a Letter of Administration (when the deceased has not left a will or the will is invalid), as well as the duties and responsibilities of the executor or administrator appointed to manage the estate.
Key provisions of the Probate and Administration Act 1959 include:
1. Grant of Probate: This is issued when the deceased has left a valid will. The executor, typically named in the will, must apply to the court for a Grant of Probate. Once the grant is obtained, the executor has the legal authority to administer the estate according to the provisions of the will.
2. Letter of Administration: When the deceased has not left a will, or the will is invalid, or there is no appointed executor, an administrator must be appointed. The administrator applies to the court for a Letter of Administration, which grants them the legal authority to manage the estate according to the applicable laws on intestate succession.
3. Executor and Administrator Duties: The act outlines the duties and responsibilities of executors and administrators, such as gathering and preserving the assets, settling debts and taxes, distributing the estate to beneficiaries, and maintaining accurate records.
4. Court Supervision: The act provides for court supervision of the administration process to ensure that the estate is managed appropriately, and the rights of the beneficiaries and creditors are protected.
5. Sureties: In some cases, the court may require the administrator to provide sureties (guarantors) to ensure the proper administration of the estate.
6. Revocation and Resealing of Grants: The act outlines the circumstances under which a grant may be revoked or a foreign grant may be resealed in Malaysia.
The Probate and Administration Act 1959 serves as a fundamental legal framework for estate administration in Malaysia, providing guidelines and processes to ensure the proper management and distribution of a deceased person's estate.
· What is probate?
Probate is the legal process of validating a deceased person's will and administering their estate according to the provisions of the will. It involves proving that the will is authentic and was the last valid testamentary document made by the deceased before their death.
The main steps in the probate process include:
1. Identifying the executor: The executor is the person named in the will who is responsible for administering the estate. If no executor is named or the named executor is unable or unwilling to act, the court may appoint an administrator.
2. Applying for a Grant of Probate: The executor or administrator submits an application to the appropriate court to obtain a Grant of Probate (if there is a valid will) or a Letter of Administration (if there is no will or the will is invalid). This application typically includes a copy of the will, a death certificate, and an inventory of the deceased's assets and liabilities.
3. Court validation: The court reviews the application and, if satisfied that the will is valid and the executor or administrator is qualified, issues the Grant of Probate or Letter of Administration. This document grants the executor or administrator the legal authority to administer the estate.
4. Administering the estate: The executor or administrator has the responsibility to gather and manage the deceased's assets, pay outstanding debts and taxes, and distribute the remaining assets to the beneficiaries according to the provisions of the will or, in the absence of a will, according to the applicable intestate succession laws.
5. Closing the estate: Once all the assets have been distributed and the executor or administrator has fulfilled their duties, the probate process is considered complete, and the estate is closed.
Probate ensures that a deceased person's assets are properly managed and distributed according to their wishes, as expressed in their will, and that the rights of the beneficiaries and creditors are protected.
· How to apply probate in Malaysia?
A Grant of Probate is a legal document issued by the court that confirms the validity of a deceased person's will and grants the executor the authority to administer the estate according to the provisions of the will. The executor is the person named in the will who is responsible for managing the deceased's assets, paying debts and taxes, and distributing the remaining assets to the beneficiaries.
A Grant of Probate is required when:
1. The deceased has left a valid will: If the deceased has left a will that outlines their wishes for the distribution of their estate, the executor named in the will must apply for a Grant of Probate before they can proceed with administering the estate.
2. The estate contains significant assets: Generally, a Grant of Probate is required when the deceased's estate contains significant assets, such as real property, investments, or large bank accounts, that need to be managed and distributed according to the will. Some financial institutions and other organizations may require a Grant of Probate before they release the deceased's assets to the executor.
3. There is a dispute over the will: If there is a dispute over the validity of the will, or the appointment of the executor, the court may require a Grant of Probate to resolve the issue and confirm the appropriate party's authority to administer the estate.
Obtaining a Grant of Probate ensures that the executor has the legal authority to manage the deceased's estate and that the will's provisions are followed. It also provides a level of protection for the beneficiaries and creditors, as the court supervises the administration process to ensure the estate is managed appropriately and according to the law.
· How to apply probate in Malaysia?
To apply for probate in Malaysia, follow these steps. Keep in mind that the process may vary depending on the state and the religion of the deceased person:
1. Obtain the required documents: Gather the necessary documents for the probate application, including the original will, the deceased's death certificate, and an inventory of the deceased's assets and liabilities.
2. Identify the executor: If the deceased left a will, it usually names an executor responsible for administering the estate. If there is no named executor or the named executor is unable or unwilling to act, an administrator may be appointed.
3. Get a lawyer and prepare the probate application: The executor or the administrator, will need to appoint a probate lawyer, prepares the probate application, which typically includes a petition for the Grant of Probate, an affidavit verifying the facts of the case, and the required supporting documents.
4. Submit the application to the appropriate court:
a. For both Muslim and non-Muslims: Submit the probate application to the High Court of Malaya in the state where the deceased person resided or owned property.
Attend a court hearing: Depending on the circumstances of the case, the court may schedule a hearing where the executor or administrator may need to answer questions or provide further information about the application.
5. Obtain the Grant of Probate: If the court is satisfied with the validity of the will and the qualifications of the executor or administrator, it will issue the Grant of Probate (or a Letter of Administration if there is no will or the will is invalid).
6. Administer the estate: Once the Grant of Probate or Letter of Administration has been obtained, the executor or administrator can proceed with administering the estate, including gathering and managing the assets, paying debts and taxes, and distributing the remaining assets to the beneficiaries according to the will or intestate succession laws.
It's crucial and important to consult a lawyer with experience in probate and estate administration to help navigate the process and ensure compliance with the relevant laws and regulations.
· How to obtain a death certificate in Malaysia?
The following are the steps to obtain a death certificate in Malaysia:
1. Register the death: The death must be registered with the National Registration Department (Jabatan Pendaftaran Negara) within 14 days of the death. This can be done at any National Registration Department office.
2. Fill out the application form: The Form JPN.LM02 can be obtained from the National Registration Department office or downloaded from their website. The form must be filled out completely and accurately.
3. Provide necessary documents: The following documents must be submitted along with the application form:
- A copy of the deceased person's identity card or passport
- A copy of the applicant's identity card or passport
- A copy of the death registration form
4. Pay the fee: There is a fee for obtaining a death certificate, which varies depending on the state in which the death occurred.
5. Collect the death certificate: Once the application has been processed and the fee has been paid, the death certificate can be collected from the National Registration Department office where the death was registered.
· How fast do you need to file a probate after death in Malaysia?
In Malaysia, there is no specific deadline for filing probate after the death of a person. However, it is advisable to start the probate process as soon as possible after the death to ensure the efficient administration of the estate, protect the assets from potential loss or damage, and prevent any complications or delays in distributing the assets to the beneficiaries.
Filing for probate soon after the death also helps avoid issues such as missing documents, asset depreciation, and potential disputes among beneficiaries or creditors. Executors or administrators are encouraged to seek legal advice from a lawyer experienced in estate administration to navigate the probate process and comply with the relevant laws and regulations.
Keep in mind that certain tasks, such as notifying banks, financial institutions, and other relevant organizations of the death, should be done promptly to prevent unauthorized access to the deceased's assets and secure the estate.
· Where will my lawyer file probate in Malaysia?
Your lawyer will file the probate application at the High Court of Malaya in the state where the deceased person resided or owned property. Each state in Malaysia has a High Court branch that handles probate matters and estate administration.
When you engage a lawyer to assist with the probate process, they will:
1. Help you gather the necessary documents, such as the original will, the deceased's death certificate, and an inventory of the deceased's assets and liabilities.
2. Prepare the probate application, which typically includes a petition for the Grant of Probate or Letter of Administration, an affidavit verifying the facts of the case, and the required supporting documents.
3. Submit the probate application to the appropriate High Court branch in the state where the deceased person resided or owned property.
4. Represent you in any court proceedings and guide you through the entire process, including attending hearings, providing additional information or documents, or addressing any objections or disputes related to the will or estate administration.
Hiring an experienced lawyer for probate and estate administration can help ensure that the process is handled efficiently and in compliance with the relevant laws and regulations.
III. Distribution Act
· What is the Distribution Act?
The Distribution Act 1958 (Act 300) is a Malaysian law that governs the distribution of property for non-Muslim intestate cases, which means when a person dies without leaving a valid will. This act outlines the rules for distributing the deceased person's estate among their surviving family members, such as their spouse, children, and parents, based on a fixed formula.
The Distribution Act 1958 has not been superseded and is still in effect in Malaysia for non-Muslim intestate cases. It's important to note that the Distribution Act does not apply to Muslim estates, as the distribution of Muslim estates is governed by Islamic inheritance laws (Faraid).
For non-Muslims in Malaysia who pass away without leaving a valid will, the Distribution Act 1958 provides a legal framework to ensure that their assets are distributed fairly among their surviving family members.
· What govern the distribution of property and estate for Muslims?
For Muslims in Malaysia, the distribution of property and estate is governed by Islamic inheritance laws, known as Faraid. Faraid is a set of rules derived from the Quran and the Hadith, which provide guidance on how a deceased Muslim's estate should be distributed among their surviving family members.
The distribution of a Muslim estate under Faraid is based on a fixed formula that determines the shares for each eligible family member, such as the spouse, children, parents, and siblings. The shares are allocated according to the relationship of each beneficiary to the deceased and their gender, with male heirs generally receiving twice the share of female heirs.
In Malaysia, the administration of Muslim estates, including the distribution of property according to Faraid, falls under the jurisdiction of the Syariah Courts. These courts handle matters related to Islamic family law and inheritance, and they ensure that the distribution of Muslim estates complies with the principles of Faraid.
It is essential for Muslims in Malaysia to be aware of Faraid and the Syariah Court's role in the administration of Muslim estates to ensure that their assets are distributed according to Islamic principles upon their death.
· What is the distribution of estate under Distribution act?
The Distribution Act in Malaysia provides for the distribution of the estate of a deceased person who did not leave a valid will. The distribution of the estate under the Distribution Act is based on the rules of intestacy, which determine the legal heirs entitled to the estate. The rules of intestacy vary depending on the personal circumstances of the deceased person, such as whether they were married, had children, or had surviving parents or siblings. Generally, the legal heirs entitled to the estate under the Distribution Act may include the spouse, children, parents, and siblings of the deceased person. The distribution of the estate is made in accordance with the following order of priority: 1. Spouse and children: If the deceased person is survived by a spouse and children, the estate is distributed equally among them. 2. Spouse only: If the deceased person is survived by a spouse but no children, the entire estate is given to the spouse. 3. Children only: If the deceased person is survived by children but no spouse, the estate is distributed equally among them. 4. Parents only: If the deceased person is survived by parents but no spouse or children, the estate is distributed equally between them. 5. Siblings only: If the deceased person is survived by siblings but no spouse, children, or parents, the estate is distributed equally among them. If there are no surviving legal heirs entitled to the estate under the Distribution Act, the estate will escheat to the government. It is important to note that the rules of intestacy and the legal heirs entitled to the estate may vary depending on the individual circumstances of the deceased person.
· Who are the beneficiaries and legal heirs under the Distribution act?
Under the Distribution Act in Malaysia, the beneficiaries are the legal heirs of a deceased person who did not leave a valid will. The legal heirs are determined according to the rules of intestacy, which vary depending on the personal circumstances of the deceased person. Generally, the legal heirs of a deceased person under the Distribution Act may include their spouse, children, parents, and siblings. However, the specific rules of intestacy and the legal heirs entitled to the estate may vary depending on the individual circumstances of the deceased person. It is important to note that the Distribution Act does not apply to Muslims, as they are governed by Islamic law in matters of inheritance.
IV. Small Estates (Distribution) Act
· What is a small estate in Malaysia?
In Malaysia, a small estate is defined as an estate of a deceased person consisting wholly or partly of immovable property situated in any state and not exceeding two million ringgit in total value. This definition is provided under Part II of the Administration of Small Estates Act 1955. According to the Act, the value of the property comprised in an estate shall be deemed to be its value at the date of the filing of a petition for probate or letters of administration or lodging of a petition for distribution under this Act in respect of the estate or, if more than one such petition has been filed or lodged in respect of the same estate, at the date of the filing or lodging of the earliest petition. It is important to note that in ascertaining the value of the property comprised in an estate, no deduction shall be made on account of the debts of the deceased. However, any property which the deceased held or was entitled to as a trustee and not beneficially shall not be included in the estate for those purposes. Furthermore, any land held in the name of the deceased by any form of registered title shall be deemed to be part of his estate whether subject to caveat or not unless the land is government and includes an assistant valuation officer.
· What is the Small Estates (Distribution) Act 1955 in Malaysia?
The Small Estates (Distribution) Act 1955 is a law in Malaysia that provides for the simplified administration of small estates. The Act applies to estates of deceased persons consisting wholly or partly of immovable property situated in any state and not exceeding two million ringgit in total value. The Act is divided into two parts. Part I contains preliminary provisions, including the short title and interpretation of terms used in the Act. Part II deals with the administration of small estates. Section 3 of the Act sets out the application of the Act and defines what constitutes a small estate. Section 4 provides for the jurisdiction of the court in respect of small estates. Section 5 empowers the High Court to grant probate of testamentary dispositions relating to small estates. Section 6 gives the High Court the power to reseal a grant of representation affecting a small estate. The Act aims to simplify and expedite the process of administering small estates, which can be time-consuming and costly. It provides a streamlined procedure for obtaining probate or letters of administration, which are necessary to distribute the assets of a deceased person. The Act also sets out the powers and duties of the court in relation to small estates. Overall, the Small Estates (Distribution) Act 1955 is an important piece of legislation in Malaysia that helps to ensure the efficient and fair distribution of small estates.
· When does Small Estates (Distribution) Act 1955 will be applicable?
The Small Estates (Distribution) Act 1955 in Malaysia will be applicable when dealing with the administration of small estates. According to Section 3 of the Act, this applies to estates of deceased persons consisting wholly or partly of immovable property situated in any state and not exceeding two million ringgit in total value. The Act provides for the simplified administration of small estates, which can be a more efficient and cost-effective process compared to the administration of larger estates. It sets out the jurisdiction of the High Court in respect of small estates, and the powers of the court to grant probate of testamentary dispositions and reseal a grant of representation affecting a small estate. Therefore, if the estate in question meets the criteria set out in the Act, then the Small Estates (Distribution) Act 1955 will be applicable in the administration of the estate.
· How do I apply for distribution order under small estate (distribution) act 1955?
To obtain a distribution order under the Small Estate Act, you must follow the procedures outlined in the Act. Here are the general steps: 1. Determine if the estate qualifies as a small estate: The Small Estate Act applies to estates where the total value of the assets does not exceed a certain amount, which varies depending on the jurisdiction. In Malaysia, for example, the Small Estate Act applies to estates where the gross value of the assets does not exceed RM2 million. 2. File a petition with the Land Administrator: If the estate qualifies as a small estate, you must file a petition with the Land Administrator. The petition should include information about the deceased, the assets of the estate, and the proposed distribution of the assets. 3. Attend an enquiry: Before making any distribution orders, the Land Administrator will hold an enquiry to satisfy himself as to the matters outlined in the Act. This may include verifying the identity of the deceased, determining the value of the assets, and ensuring that the proposed distribution is in accordance with the law. 4. Obtain the distribution order: If the Land Administrator is satisfied with the petition and the enquiry, he may make distribution orders as necessary to vest the assets in the appropriate beneficiaries. The distribution order will specify the assets to be distributed, the beneficiaries who will receive them, and any conditions or restrictions on the distribution. 5. Pay any fees or duties: Depending on the jurisdiction, there may be fees or duties payable on the making of a distribution order under the Small Estate Act. These fees or duties must be paid before the distribution order can be implemented. It is important to note that the procedures for obtaining a distribution order under the Small Estate Act may vary depending on the jurisdiction. It is recommended that you consult with a legal professional or the relevant government agency for specific guidance on the procedures in your area.
· What form do I need to submit?
1. Form A (Subregulation 3(1)): This form is used to initiate a petition for small estate distribution. It should include information about the deceased, the assets of the estate, and the proposed distribution of the assets. 2. Form P (Subregulation 12(1)): This form is used to make a subsequent application for small estate distribution. It may be necessary if there are changes to the assets or beneficiaries of the estate after the initial petition has been filed. 3. Form P (Section 17): This form is used to make a subsequent application for small estate distribution under Section 17 of the Act. This may be necessary if there are disputes or other issues that arise during the distribution process. It is important to note that the specific forms and procedures for small estate distribution may vary depending on the jurisdiction. It is recommended that you consult with a legal professional or the relevant government agency for specific guidance on the forms and procedures in your area.
· What do I need to submit Form A?
The following are the documents that must be submitted for application for petition under Section 8 (Form A) of the Small Estates (Distribution) Act 1955 :
1. Petition under Section 8 (Form A) that has been completed and signed in the presence of a Magistrate / Commissioner for Oaths.
2. Proof of Death - Copy of Death Certificate / Extract or Search of Death Certificate / Order of Presumption of Death or Order of Confirmation of Death from the High Court (for deaths without a death certificate or no death record from the National Registration Department (JPN)).
3. Copy of Applicant's and Beneficiary's Identity Card (front and back) and copy of Identity Card / Birth Certificate for beneficiaries under 18 years old.
4. Copy of Appointment Order under the Adoption Act 1952 [Act 257] / Adoption Registration Certificate under the Adoption Registration Act 1952 [Act 253] for non-Muslims (if applicable).
5. Copy of Marriage Certificate or Deceased's Marriage Register (if applicable).
6. Two (2) complete copies of Title / Grant with Site Plan for immovable property claimed if there is Title / Grant; or Two (2) copies of Sale and Purchase Agreement for immovable property claimed or Registry of Holding if the property still does not have Title / Grant.
7. Two (2) Official Searches purchased from the District Land Office for HSM/GM/PM ownership or State Land and Mines Office (PTG) for HSD/GRN/PN ownership.
8. Copy of Assessment Tax Bill / Receipt.
9. Copy of the latest documents related to the deceased's ownership of movable property such as savings account statements, share certificates, insurance, vehicle ownership and others (if applicable).
10. Copy of the deceased's Statement of Debt and Credit (if applicable).
B. Online applications are encouraged and can be made by visiting the website www.jkptg.gov.my (Click on the JKPTG Online Services List under Public Access and select Small Estates Distribution Application and follow the next steps).
C. Form A that has been completed online must be printed and signed in the presence of a Magistrate / Commissioner for Oaths and submitted together with supporting documents to the relevant Small Estates Distribution Unit within 21 days from the date of the online application.
D. If an application for distribution of the deceased's estate has been filed with Amanah Raya Berhad (ARB), please submit a copy of the ARB's Acknowledgement / Instruction when submitting the application and supporting documents to the relevant Small Estates Distribution Unit (UPP).
E. All original documents must be brought on the day of the hearing and will be notified through the Petition and Hearing Notice (Form D).
· How much Land Administrator charge for distribution order under small estate (distribution) act?
The fee for the Land Administrator's Order under the Small Estates (Distribution) Regulations 1955 is based on the estate value and is calculated as follows:
(i) For distribution or Grant of Letters of Administration:
- Not exceeding RM1,000.00: RM10.00
- Exceeding RM1,000.00 to RM50,000.00: RM30.00
- Exceeding RM50,000.00 and above: 0.2% of the estate value
(ii) For revocation of trust deed: RM30.00 or 0.2% of the estate value, whichever is higher.
(iii) In collateral dispute: RM30.00
(iv) Upon subsequent application:
- Application for revocation of trustee, withdrawal of caveat, cancellation of Letters of Administration, or any further order: RM30.00
- For revocation of trust deed in subsection 13(3) of the Act: RM30.00 or 0.2% of the estate value referred to in the application, whichever is higher.
- Application for an order for distribution of the property which has not been declared under section 8 of the Act: RM10.00 or 0.2% of the estate value referred to in the application, whichever is higher.
(v) Copies of Land Administrator's Order:
- Supplied on application to the Administrator or the beneficiaries: Free for the first copy and RM5.00 for the second and subsequent copies.
- Required by a person other than the Administrator or beneficiaries: RM30.00 for the first copy and RM10.00 for the second and subsequent copies.
(vi) Inclusive appeal fee: RM50.00
(vii) Copy of any documents required to be copied:
- For the first copy: RM30.00 per copy
- For second or subsequent copies: RM10.00 per copy.
V. Letter of Administration
· What is a Letter of Administration, and when is it required?
A Letter of Administration is a legal document issued by the Land Administrator that authorizes a person or persons to administer the estate of a deceased person who has not left a valid will. It is required when the deceased person has not named an executor in their will or if the named executor is unable or unwilling to act.
The purpose of the Letter of Administration is to give the administrator the legal authority to manage and distribute the deceased person's assets according to the laws of intestacy. The administrator is responsible for identifying and valuing the assets of the deceased, paying any outstanding debts and taxes, and distributing the remaining assets to the beneficiaries according to the laws of intestacy.
The Land Administrator has the discretion to grant the Letter of Administration to any person they deem fit, subject to certain conditions and limitations. The administrator may be required to provide security, and the Letter of Administration may be subject to certain limitations specified by the Land Administrator.
If the deceased person owned any land registered in their name, the Land Administrator will also have the power to transmit the land to any person who has proved their claim to be a purchaser, subject to any conditions the Land Administrator deems fit to impose.
If the estate is or is likely to be insolvent, the Land Administrator may grant the Letter of Administration to some fit persons on behalf of the general body of creditors or order the estate to be administered in bankruptcy by the Director General of Insolvency.
In Malaysia, the High Court of Malaya is also an authority that can issue Letters of Administration for both Muslim and non-Muslim estates. When a person dies without a valid will (intestate) or when the named executor in the will is unable or unwilling to act, the court can appoint an administrator to manage the deceased's estate.
In summary, a Letter of Administration is required when a person dies without leaving a valid will, and it authorizes the administrator to manage and distribute the deceased person's assets according to the laws of intestacy.
· What is the difference between grant of probate and letter of administration in Malaysia?
In Malaysia, the grant of probate and letter of administration are two different legal processes that are used to administer the estate of a deceased person. The main difference between the two is that a grant of probate is issued when the deceased person has left a valid will, while a letter of administration is issued when the deceased person has not left a valid will.
A grant of probate is a legal document issued by the High Court of Malaya that confirms the validity of the deceased person's will and appoints an executor to administer the estate. The executor is usually named in the will and is responsible for carrying out the wishes of the deceased person as stated in the will. The executor is required to distribute the assets of the estate according to the instructions in the will and is accountable to the beneficiaries of the estate.
On the other hand, a letter of administration is a legal document issued by the High Court of Malaya that appoints an administrator to administer the estate of a deceased person who did not leave a valid will. The administrator is usually a close relative of the deceased person and is responsible for distributing the assets of the estate according to the rules of intestacy. The rules of intestacy are a set of legal rules that determine how the assets of a deceased person are to be distributed if they did not leave a valid will.
In summary, the main difference between a grant of probate and a letter of administration in Malaysia is that a grant of probate is issued when the deceased person has left a valid will, while a letter of administration is issued when the deceased person has not left a valid will. The executor appointed in a grant of probate is responsible for carrying out the wishes of the deceased person as stated in the will, while the administrator appointed in a letter of administration is responsible for distributing the assets of the estate according to the rules of intestacy.
· Who can issue letter of administration?
Section 5(2)(a) of the Small Estates (Distribution) Act 1955 states that if upon the hearing of any petition for probate or for letters of administration with a will or copy of a will annexed, probate or letters of administration with the will or a copy of a will annexed are not granted, the Court may, if satisfied that all the necessary parties are before the Court, grant letters of administration to any person to whom letters would have been granted on an intestacy if the estate had not been a small estate. This means that the Small Estates (Distribution) Act 1955 allows for the grant of letters of administration in respect of a small estate or part thereof, and the grant when made shall have effect in all respects as if the estate had not been a small estate.
When applying for a Letter of Administration in Malaysia, the options available depend on the value of the deceased's estate. Here are the options based on whether the estate value is below or above RM2 million:
Estate value below RM2 million:
For estates valued below RM2 million, you can apply for a distribution order under the Small Estates (Distribution) Act 1955. In this case, you would submit the application to the Land Administrator or District Officer instead of the High Court. The Land Administrator or District Officer will help you obtain the distribution order and administer the estate.
The process is generally slower compared to applying for a Letter of Administration at the High Court. However, it is only applicable to estates that do not involve any complex legal issues or disputes among the beneficiaries or creditors.
Estate value above RM2 million:
For estates valued above RM2 million, you must apply for a Letter of Administration at the High Court of Malaya. The application typically includes a petition, an affidavit verifying the facts of the case, and supporting documents such as the death certificate and an inventory of the deceased's assets and liabilities.
The High Court will review the application, and if approved, will appoint an administrator to manage the estate. The court will then issue the Letter of Administration, which grants the administrator legal authority to manage the estate, pay debts and taxes, and distribute the remaining assets to the beneficiaries according to intestate succession laws or Islamic inheritance laws (Faraid) for Muslim estates.
In both cases, it is often recommended to consult a lawyer with experience in estate administration to help navigate the process.
· What document you need to get a Letter of Administration?
To obtain a Letter of Administration, you will need to hire a lawyer and the lawyer will file a petition with the court. The petition should include the following information:
1. The deceased person's name, date of death, and place of residence at the time of death.
2. A list of the deceased person's assets and liabilities.
3. The names and addresses of the deceased person's heirs and beneficiaries.
4. The name of the person you are requesting to be appointed as the administrator of the estate.
5. A statement that the deceased person did not leave a will or that the will is invalid.
6. A statement that the person requesting the Letter of Administration is qualified to serve as the administrator.
In addition to the petition, you may also need to provide other documents, such as a death certificate, proof of the deceased person's assets and liabilities, and proof of your qualifications to serve as the administrator. The specific requirements may vary depending on the jurisdiction and the complexity of the estate.
· Who is eligible to apply for a Letter of Administration in Malaysia?
In Malaysia, the distribution of a deceased person's estate is governed by the Distribution Act 1958. According to the Act, the following persons are eligible to apply for a Letter of Administration:
1. The surviving spouse of the deceased person
2. The children of the deceased person
3. The parents of the deceased person
4. The siblings of the deceased person
5. Any other person who has a beneficial interest in the estate of the deceased person
If there is more than one eligible person, they can apply jointly for the Letter of Administration. If there is no eligible person, the court may appoint a public trustee to administer the estate.
It is important to note that the court will consider various factors when deciding who should be appointed as the administrator of the estate, including the relationship of the applicant to the deceased person, their ability to manage the estate, and any conflicts of interest that may arise. The court may also require the applicant to provide security for the proper administration of the estate.
· What are the documents required to apply for a Letter of Administration, and what are the fees involved?
To apply for a Letter of Administration in Malaysia, you will need to prepare and submit several documents. The required documents may vary depending on the specific circumstances of each case, but generally, the following documents are necessary:
Death certificate of the deceased (original or certified true copy).
Identification documents of the applicant (e.g., National Registration Identity Card, passport).
A list of the deceased's assets and liabilities, such as property titles, bank statements, and details of any debts.
Information about the deceased's family members, such as their names, identification numbers, and relationships to the deceased.
Any other relevant documents, such as marriage certificates, birth certificates, or adoption papers, that establish the relationship between the deceased and the beneficiaries.
In addition to these documents, you will need to submit a petition and an affidavit to the High Court, which provide details about the deceased's estate, the names of the beneficiaries, and the reasons for applying for a Letter of Administration.
Regarding fees, the costs involved in applying for a Letter of Administration can vary depending on the complexity of the case and whether you engage a lawyer to assist you. Some of the fees you may incur include:
Court filing fees: These are fees payable to the court for filing the application and other necessary documents. The exact amount will depend on the specific court and the value of the estate.
Stamp duty: This is a tax payable on the court documents, which varies based on the value of the estate.
Legal fees: If you engage a lawyer to help with the application process, you will need to pay their fees, which can be based on an hourly rate, a fixed fee, or a percentage of the estate value. The fees will depend on the lawyer's experience, the complexity of the case, and the amount of work involved.
Miscellaneous expenses: These may include fees for obtaining certified true copies of documents, translation fees for documents in a foreign language, or any other incidental costs related to the application.
It's important to consult with a lawyer to get a better understanding of the fees and costs involved in your specific case, as well as guidance on the required documents and the application process.
· Can a creditor apply for Letters of Administration Malaysia?
Yes, a creditor can apply for Letters of Administration in Malaysia. Section 29 of the Probate and Administration Act 1959 (Act 98) states that the Land Administrator may grant letters of administration to such person as he shall think fit, subject to such security as he may require and may in his discretion dispense with security. The letters of administration shall be subject to such limitations as the Land Administrator may think fit to specify in the grant.
Furthermore, if the estate of the deceased owes money to the creditor, the creditor can prove their claim to the Land Administrator. Section 36 of the same Act states that if it appears that the estate is or is likely to be insolvent, the Land Administrator shall grant letters of administration to some fit persons on behalf of the general body of creditors or else order the estate to be administered in bankruptcy by the Director General of Insolvency.
Therefore, a creditor can apply for Letters of Administration in Malaysia if they can prove their claim to the satisfaction of the Land Administrator. The Land Administrator may require the creditor to provide evidence of the debt, such as invoices, receipts, or other relevant documents. Once the creditor has proven their claim, the Land Administrator may grant Letters of Administration to the creditor or to another person who is deemed fit to administer the estate.
· How do I start the process of obtaining a Letter of Administration in Malaysia, and how long does it take?
To start the process of obtaining a Letter of Administration in Malaysia, follow these steps:
Determine the value of the estate: Before applying, you need to determine the value of the deceased's estate, which includes all assets and liabilities. This information is crucial for assessing whether the estate qualifies for the Small Estates (Distribution) Act 1955 (for estates valued below RM2 million) or requires an application at the High Court of Malaya (for estates valued above RM2 million).
Consult a lawyer : Although it is not mandatory for estates valued below RM2 million, consulting a lawyer experienced in estate administration can help you navigate the process, gather the necessary documents, and provide guidance on the relevant laws and regulations. If the estate's value is above RM2 million, you do need a lawyer to represent you in the High Court of Malaya.
Gather required documents: Collect the necessary documents, such as the death certificate, identification documents, a list of assets and liabilities, and information about the deceased's family members. Your lawyer can help you identify and obtain any additional documents required for your specific case.
Prepare the application: Prepare the petition and affidavit for the Letter of Administration, which detail the deceased's estate, the names of the beneficiaries, and the reasons for applying. Your lawyer can help you draft these documents according to the court's requirements.
File the application: Submit the petition, affidavit, and supporting documents to the appropriate authority—either the Land Administrator or District Office (for estates valued below RM2 million) or the High Court of Malaya (for estates valued above RM2 million).
Attend court hearings or meetings with the Land Administrator (if applicable): Depending on the value of the estate and the authority handling your application, you may need to attend court hearings at the High Court or meetings with the Land Administrator. For estates valued below RM2 million, the first meeting with the Land Administrator should be within 6 months. For estates valued above RM2 million, the court hearing should be within 3 months. If the estate's value is below RM2 million, your lawyer generally cannot appear in front of the Land Administrator, unless allowed under specific circumstances.
Obtain the Letter of Administration: Once the court or Land Administrator approves the application and appoints the administrator, the Letter of Administration will be issued, granting the administrator legal authority to manage the deceased's estate.
The timeline for obtaining a Letter of Administration in Malaysia can vary depending on several factors, such as the complexity of the estate, the efficiency of the relevant authority, and whether there are any disputes or objections. Working with a lawyer can help streamline the process and address any issues or challenges that may arise along the way.
· What should I say to the lawyer if I want to start to commence letter of administration application?
When you first contact a lawyer to commence a Letter of Administration application, you can provide them with some basic information and express your needs. Here are some points to cover during your initial conversation:
Introduce yourself: Explain your relationship to the deceased and why you are seeking a Letter of Administration.
Provide basic information about the deceased: Share the deceased's full name, date of death, and last known address.
Discuss the estate: Give a brief overview of the deceased's estate, including an estimated value and any known assets and liabilities. Mention if the estate's value is above or below RM2 million, as this affects the application process.
Mention any known beneficiaries: If you are aware of any potential beneficiaries or heirs, share their names and relationships to the deceased.
Ask for assistance: Clearly state that you would like the lawyer's assistance in applying for a Letter of Administration, and inquire about their experience in handling such cases.
Discuss fees and timelines: Ask the lawyer about their fees and estimated timelines for the application process, as well as any additional costs that may arise.
Request a follow-up meeting: If the initial conversation goes well, request a follow-up meeting or phone call to discuss the next steps and gather any required documents for the application.
By providing this information and expressing your needs, you will help the lawyer understand your situation and determine the best approach for applying for a Letter of Administration. Remember to ask any questions you may have and be open to the lawyer's guidance and advice.
VI. Administrator Responsibilities and Legal Issues
· What are the responsibilities of the administrator named in the Letter of Administration, and what are the legal consequences of not fulfilling those responsibilities?
The administrator named in the Letter of Administration has several responsibilities in managing the deceased's estate. These responsibilities include:
Identifying and gathering the deceased's assets: The administrator must locate, safeguard, and compile an inventory of the deceased's assets, such as real estate, bank accounts, investments, and personal property.
Settling debts and liabilities: The administrator is responsible for identifying and settling the deceased's outstanding debts, taxes, and other liabilities using the estate's assets.
Obtaining any necessary valuations: The administrator may need to obtain professional valuations for certain assets, such as real estate or valuable personal property, to ensure accurate distribution among the beneficiaries.
Distributing the estate: After settling debts and liabilities, the administrator must distribute the remaining estate to the beneficiaries according to the applicable inheritance laws or any existing will, if recognized by the court.
Keeping records and accounts: The administrator should maintain detailed records of the estate administration, including asset inventories, receipts, and disbursements. They may be required to provide these records to the court or beneficiaries upon request.
Communication with beneficiaries: The administrator must keep the beneficiaries informed about the progress of the estate administration and address any concerns or questions they may have.
Legal consequences of not fulfilling these responsibilities can include:
Personal liability: The administrator may be held personally liable for any losses or damages incurred by the estate or beneficiaries due to their negligence, mismanagement, or failure to fulfill their duties.
Removal from the role: The court or beneficiaries may petition for the administrator's removal if they fail to fulfill their responsibilities or act in the best interests of the estate and its beneficiaries.
Legal disputes: The administrator's failure to fulfill their duties may lead to disputes or legal action by the beneficiaries, which can result in costly and time-consuming litigation.
Delays in estate distribution: Failure to properly administer the estate can cause significant delays in the distribution of assets to the beneficiaries, leading to additional expenses and potential loss of value in the estate.
It's crucial for the administrator to understand and fulfill their legal responsibilities to avoid these consequences and ensure the smooth administration and distribution of the deceased's estate.
· Can an administrator dispose of the estate of the deceased in Malaysia?
Based on the information from the knowledge base, an administrator appointed by the court or the Public Trustee in Malaysia has the power to manage and distribute the estate of the deceased. However, the administrator must follow the legal procedures and obtain the necessary approvals before disposing of any assets or property belonging to the estate.
Under the Probate and Administration Act 1959, the administrator must first obtain a grant of representation from the court before they can dispose of any assets or property belonging to the estate. The grant of representation is a legal document that authorizes the administrator to act on behalf of the deceased and manage their estate.
Once the grant of representation has been obtained, the administrator must follow the legal procedures for disposing of the assets or property. This may involve selling the assets or property through a public auction or private sale, or distributing them to the beneficiaries according to the terms of the will or the laws of intestacy.
It is important to note that the administrator has a fiduciary duty to act in the best interests of the estate and the beneficiaries. They must exercise due diligence and care in managing and disposing of the assets or property, and must not act in a manner that is contrary to the interests of the estate or the beneficiaries.
In summary, an administrator appointed by the court or the Public Trustee in Malaysia has the power to dispose of the estate of the deceased, but must follow the legal procedures and obtain the necessary approvals before doing so. The administrator also has a fiduciary duty to act in the best interests of the estate and the beneficiaries.
· What happens if one of the administrators of the estate dies?
If one of the administrators of the estate dies, the remaining administrator(s) can continue to manage and distribute the estate. However, if there is only one administrator appointed and they die, a new administrator will need to be appointed by the court or the Public Trustee to manage the estate.
Under the Probate and Administration Act 1959, the court has the power to appoint a new administrator if the original administrator dies, resigns, or is unable to continue to act for any reason. The court may appoint a new administrator from among the beneficiaries of the estate or from any other suitable person.
The new administrator will need to obtain a grant of representation from the court before they can manage and distribute the estate. The grant of representation is a legal document that authorizes the administrator to act on behalf of the deceased and manage their estate.
It is important to note that the new administrator will have the same duties and responsibilities as the original administrator. They must act in the best interests of the estate and the beneficiaries, and must follow the legal procedures for managing and distributing the assets and property of the estate.
In summary, if one of the administrators of the estate dies, the remaining administrator(s) can continue to manage and distribute the estate. If there is only one administrator appointed and they die, a new administrator will need to be appointed by the court or the Public Trustee to manage the estate. The new administrator will have the same duties and responsibilities as the original administrator.
· What is a letter of administration renounce?
In Malaysia, the specific form used for renouncing the role of an administrator may vary depending on the court and jurisdiction. Generally, the form is called "Renunciation of Probate" or "Renunciation of Administration," and it outlines the administrator's decision to give up their role and responsibilities in managing the deceased's estate.
The form usually requires the renouncing party to provide their name, address, and relationship to the deceased, as well as the reasons for renouncing their role. It must be signed by the renouncing party and, in some cases, witnessed by a notary public or another authorized person.
To obtain the appropriate form and ensure that the renunciation process is completed correctly, it's advisable to consult with a lawyer experienced in estate administration. They can provide guidance on the specific form, legal requirements, and steps involved in renouncing the role of an administrator in Malaysia.
· What is a letter of administration de Bonis non?
A Letter of Administration de bonis non, often abbreviated as "de bonis non," is a legal document issued by the court when the original administrator of an estate dies, becomes incapacitated, or is removed from their role before fully administering and distributing the deceased's estate. The term "de bonis non" is derived from Latin, meaning "of the goods not (yet) administered."
In this situation, the court appoints a new administrator to take over the responsibilities of managing and distributing the remaining assets of the estate that were not dealt with by the original administrator. The new administrator is responsible for completing the administration process, ensuring that the remaining assets are distributed according to the applicable laws and any valid will, if recognized by the court.
The process of obtaining a Letter of Administration de bonis non usually involves submitting an application to the court and providing the necessary documents and information to justify the appointment of a new administrator. As this process can be complex, it's advisable to consult with a lawyer experienced in estate administration to guide you through the process and ensure the proper steps are taken.
VII. Dealing with Deceased's Assets
· Can I write my own will in Malaysia?
You can write your own will in Malaysia. The Wills Act 1959 governs the making of wills in Malaysia, and it does not require a will to be drafted by a lawyer or any other professional. However, it is important to ensure that your will meets the legal requirements set out in the Act to ensure that it is valid and enforceable.
Under Section 5 of the Wills Act 1959, a will must be in writing and signed by the testator (the person making the will) or by someone else in the presence of the testator and at his or her direction. The testator must also sign or acknowledge his or her signature in the presence of two or more witnesses who are present at the same time. The witnesses must also sign the will in the presence of the testator.
It is also important to note that certain types of property, such as joint tenancy property and assets held in trust, may not be disposed of by will. Therefore, it is advisable to seek legal advice to ensure that your will covers all of your assets and is in compliance with the law.
In summary, while it is possible to write your own will in Malaysia, it is important to ensure that it meets the legal requirements and covers all of your assets. Seeking legal advice can help ensure that your will is valid and enforceable.
· Who is a testator?
In Malaysia, a testator is a person who makes a will. The term "testator" is derived from the Latin word "testamentum," which means "will." A testator is typically an adult of sound mind who wishes to dispose of his or her property or assets after death according to his or her wishes.
The testator's will is a legal document that outlines how his or her property and assets will be distributed after death. The will may also include other instructions, such as the appointment of an executor to manage the estate, the establishment of trusts for beneficiaries, and the nomination of guardians for minor children.
It is important for a testator to ensure that his or her will is valid and enforceable under Malaysian law. This includes complying with the requirements for executing a will, such as signing the will in the presence of witnesses, and ensuring that the will accurately reflects the testator's wishes.
If a testator dies without a valid will, his or her property will be distributed according to the rules of intestacy, which may not reflect the testator's wishes. Therefore, it is important for individuals to consider making a will to ensure that their property is distributed according to their wishes after death.
· Can you sign a will digitally?
In Malaysia, there are certain requirements that must be met in order for a will to be considered valid. These requirements are outlined in the Wills Act 1959. Here are the key steps to making a valid will:
1. The testator must be of sound mind: The testator must be of sound mind when making the will. This means that they must understand the nature and effect of the document they are signing, and be able to make rational decisions about the distribution of their assets.
2. The will must be in writing: The will must be in writing, either by hand or by printing, and must be signed by the testator or by someone else in their presence and at their direction.
3. The will must be signed by witnesses: The testator must sign the will in the presence of at least two witnesses who are both present at the same time. The witnesses must also sign the will in the presence of the testator.
4. The witnesses must be competent: The witnesses must be competent, meaning that they must be of sound mind and at least 18 years old. They must also not be beneficiaries under the will.
5. The will must be dated: The will must be dated to indicate when it was signed.
6. The testator must have the intention to make a will: The testator must have the intention to make a will and to dispose of their assets in a certain way.
7. The will must be free from undue influence: The will must be free from any undue influence or coercion from others.
It is important to note that if any of these requirements are not met, the will may be considered invalid.
Therefore, it is recommended that individuals seek the advice of a lawyer when making a will to ensure that it is valid and enforceable under Malaysian law.
Though there is the Electronic Commerce Act 2006, it does not however apply to all types of transactions.
Section 2 of the Act states that the Act applies to any commercial transaction that is carried out by electronic means. A commercial transaction is defined in the Act as a single communication or multiple communications of a commercial nature, whether contractual or not, which includes any matters relating to the supply or exchange of goods or services, agency, investments, financing, banking, and insurance.
However under the Schedule of the same act, Electronic Commerce Act 2006 does not apply when it comes to making a will. Hence the Wills Act 1959 is still applicable. Thus you cannot sign a will digitally.
· How to find deceased asset?
Locating the assets of a deceased person in Malaysia can be a complex process, but it is essential to ensure proper administration and distribution of the estate. Here are some steps that can be taken to find the deceased's assets:
Review personal documents: Go through the deceased's personal papers, files, and records to find information on their assets. Look for bank statements, investment account records, insurance policies, real estate deeds, and any other relevant documents.
Check with financial institutions: Contact banks, investment firms, and insurance companies where the deceased may have held accounts or policies. Provide the necessary documentation, such as the death certificate and a copy of the Letter of Administration, to obtain information on the deceased's assets.
Review tax returns: Analyze the deceased's tax returns for the past few years to identify sources of income, investments, and other assets.
Search the Central Credit Reference Information System (CCRIS): CCRIS is a centralized database managed by Bank Negara Malaysia, which contains credit information on borrowers. Access to CCRIS is restricted, but an administrator or executor can contact an attorney to help obtain credit information that may reveal the deceased's assets.
Inspect physical assets: Conduct a thorough inspection of the deceased's property and belongings for any valuable items or assets that may be part of the estate.
Consult with family members and close associates: Speak with the deceased's family, friends, and business associates, who may have information about the deceased's assets or financial dealings.
Hire a professional: If necessary, consider hiring a lawyer or a professional estate investigator who specializes in locating assets. They can help you navigate the legal process and may have access to resources and techniques that can make the search more efficient.
Bear in mind that locating the deceased's assets can take time and may involve dealing with various institutions and organizations. It is crucial to be patient and persistent in your efforts to ensure the proper administration of the estate.
· What if the beneficiary is a minor?
A minor can be a beneficiary of a will or trust in Malaysia. However, since minors are not legally allowed to manage their own affairs, their inheritance must be managed by a guardian until they reach the age of majority.
If a minor is named as a beneficiary in a will or trust, the testator or settlor should also name a guardian to manage the minor's inheritance until they reach the age of majority. The guardian will be responsible for managing the assets and using them for the benefit of the minor, which may include providing for the minor's education, healthcare, and other needs.
If a guardian is not named in the will or trust, the Court may appoint a guardian to manage the minor's inheritance.It is important for the guardian to act in the best interests of the minor and to manage the assets responsibly. If the guardian fails to fulfill their duties, they may be held liable for any damages or losses suffered by the minor.
In conclusion, a minor can be a beneficiary of a will or trust, but a guardian must be appointed to manage their inheritance until they reach the age of majority.
· What is the duty of the guardian of a minor where the minor is a beneficiary
The duty of a guardian of a minor where the minor is a beneficiary will depend on the specific terms of the will and the applicable laws in Malaysia.
If the minor is a beneficiary of a will and has been appointed a guardian by the Court or by the surviving parent, the guardian will have a duty to act in the best interests of the minor and to manage the minor's inheritance until the minor reaches the age of majority. The guardian will be responsible for managing the assets and using them for the benefit of the minor, which may include providing for the minor's education, healthcare, and other needs.
Under Section 21 of the Wills Act 1959, the Public Trust Corporation may be appointed by the Court to act as next friend or guardian for the minor in any legal proceedings related to the will. If the guardian appointed by the Court is different from the guardian appointed by the surviving parent, they will be required to act jointly in managing the minor's inheritance.
If both parents of the minor have died without appointing a testamentary guardian, any Magistrate, penghulu, police officer or Protector may cause the infant to be taken before the Court, and the Court shall appoint a guardian of the infant’s person and property or either of them.
It is important for the guardian to act in the best interests of the minor and to manage the assets responsibly. If the guardian fails to fulfill their duties, they may be held liable for any damages or losses suffered by the minor.
· What is the liability of a guardian if guardian fails to fulfill their duties or that damages and losses suffered by the minor due to guardian?
Under the Guardianship of Infants Act 1961 (Act 351) of Malaysia, a guardian has a fiduciary duty to act in the best interests of the minor and manage their assets responsibly. If the guardian fails to fulfill their duties or causes damages or losses to the minor's assets, they may be held liable for their actions.
Section 4 of the Act provides that a guardian shall be liable for any loss or damage occasioned to any property of the infant by his wrongful act or neglect. This means that if a guardian fails to manage the minor's assets properly or acts negligently, they may be liable for any damages or losses suffered by the minor.
In addition, Section 11 of the Act states that the Court or a Judge, in exercising the powers conferred by this Act, shall have regard primarily to the welfare of the infant and shall consider the wishes of the parent or parents, where applicable. This means that the guardian must act in the best interests of the minor and consider the wishes of the parent or parents, where applicable.
If the guardian breaches their fiduciary duty or acts negligently, they may be removed from their guardianship position by the Court or a Judge under Section 10 of the Act. The Court or a Judge may also appoint another person to be the guardian in their place.
Therefore, it is important for the guardian to act in the best interests of the minor and manage their assets responsibly to avoid any potential liability. If the guardian is unsure of their duties or responsibilities, they should seek legal advice to ensure that they are fulfilling their obligations properly.
· Do you need a death certificate? How do you get it?
a death certificate is required for the distribution of estate in Malaysia, regardless of the value of the estate. The death certificate is a legal document that provides proof of a person's death, and it is required to initiate the distribution of the deceased's estate.
If the estate value is below RM2 million, the specific section of the law that requires a death certificate for the distribution of estate is Section 8 of the Small Estates (Distribution) Act 1955. According to this section, any person claiming to be interested in the estate as a beneficiary, creditor, purchaser, or in other circumstances mentioned in subsection 18(1) may lodge with the Land Administrator at any district wherever the immovable property comprised in the estate is situated a petition, in the prescribed form, for the distribution of the estate. The petitioner shall deliver to the Land Administrator all issue documents of title or other documents evidencing title to immovable property relating to the estate in his possession or power.
To obtain a death certificate, the person applying for the grant of representation must make an application to the National Registration Department (NRD) under the Births and Deaths Registration Act 1957. The application must be made in the district where the death occurred, and it must be supported by relevant documents, such as the deceased's identification card and medical certificate.
If the estate value is more than RM2 million, the specific section of the law that requires a death certificate for the distribution of estate is Section 31 of the Probate and Administration Act 1959. According to this section, a person who wishes to obtain a grant of representation for a deceased person's estate must provide the court with a death certificate. The person must also file a petition for the grant of representation, along with any other relevant documents, such as the deceased's will and any affidavits or declarations.
In summary, a death certificate is required for the distribution of estate in Malaysia, regardless of the value of the estate. If the estate value is below RM2 million, the specific section of the law that requires a death certificate for the distribution of estate is Section 8 of the Small Estates (Distribution) Act 1955. If the estate value is more than RM2 million, the specific section of the law that requires a death certificate for the distribution of estate is Section 31 of the Probate and Administration Act 1959. To obtain a death certificate, the person applying for the grant of representation must make an application to the National Registration Department (NRD) under the Births and Deaths Registration Act 1957.
· How can a family member get his interest registered on land title of deceased estate
To register a family member's interest on a land title of a deceased estate, the process involves applying to the Registrar of Titles under Section 346 of the National Land Code 1965. The following steps are required:
1. Application for registration of personal representative - The personal representative or representatives of the deceased person may apply to the Registrar under this section to be registered as such in respect of any land, or share or interest in land, forming part of that person's estate.
2. Required documents - The application must be accompanied by the grant of probate or letters of administration, if available, the issue document of title to the land or, where the application relates to a lease or a charge, the duplicate thereof, and such other documents or evidence as the Registrar may require, or as may be prescribed.
3. Payment of estate duty - The Registrar will only give effect to the application if satisfied that any estate duty due in respect of the estate has been paid, or a postponement of payment allowed in respect of the land, share or interest in question.
4. Endorsement on the register document of title - The Registrar will endorse on the register document of title to the land to which, or a share or interest in which, it relates a note of the date of death of the deceased person and a memorial to the effect that the said land, share or interest is vested in the applicant or applicants "as representative" or, as the case may be, "as representatives".
5. Signing and sealing of memorial - Every such memorial shall be signed and sealed by the Registrar, and a copy thereof shall be made on the issue document of title or, as the case may be, duplicate lease or charge, if sent with the application or subsequently obtained by him.
6. Execution of instrument of dealing - No personal representative or representatives shall be capable of executing any instrument of dealing in respect of any land, share or interest until it has become registered in his or her name.
In summary, a family member can get his or her interest registered on a land title of a deceased estate by applying to the Registrar of Titles under Section 346 of the National Land Code 1965. The application must be accompanied by the grant of probate or letters of administration, issue document of title to the land, payment of estate duty, and other documents or evidence as required by the Registrar. The Registrar will endorse the register document of title and sign and seal the memorial. The personal representative or representatives can only execute an instrument of dealing once the land title has been registered in their name.
· How to transfer estate (deceased land) property under my name if I have distribution order?
As per the National Land Code, transmission refers to the transfer of ownership of a land from one person to another. A memorial is a written record of any registered interest or transaction relating to a particular land. When a distribution order under the Small Estates (Distribution) Act 1955 has become final in accordance with section 16 of that Act, it shall be the duty of the Registrar to give effect thereto by endorsing a memorial of any transmission thereby effected on the register document of title to the land in question or, as the case may be, the land in which the share or interest in question subsists.
If you have a distribution order under the Small Estates (Distribution) Act 1955 and you want your name to be registered on the deceased land, you need to apply to the Registrar under section 348 of the National Land Code. The Registrar will give effect to your application by endorsing a memorial of the transmission on the register document of title to the land in question or, as the case may be, the land in which the share or interest in question subsists.
To apply for the registration of your name on the deceased land, you need to fill out Form 14A under the National Land Code. You need to attach a copy of the distribution order that has become final in accordance with section 16 of the Small Estates (Distribution) Act 1955.
Once you have submitted the application, the Registrar will verify the details and give effect to your application by endorsing a memorial of the transmission on the register document of title to the land in question or, as the case may be, the land in which the share or interest in question subsists. The memorial will contain details of the transmission, such as the name of the new owner and the date of transmission.
The relevant law for this process is the National Land Code (Act 56 of 1965). Section 348 of the National Land Code deals with the registration of transmission of land under the Small Estates (Distribution) Act 1955, while Form 14A is the form that needs to be filled out for this purpose.
It is best that you appoint a lawyer since this process is complicated.
· Can property be transacted if you die (you are the owner)?
According to the National Land Code 1965, transmission of property on death is possible. The personal representative or representatives of any deceased person may apply to the Registrar to be registered as such in respect of any land, or share or interest in land, forming part of that person’s estate.
The Registrar will give effect to the application if satisfied that any estate duty due in respect of the estate has been paid, or a postponement of payment allowed in respect of the land, share or interest in question.
The application must be accompanied by the grant of probate or letters of administration, the issue document of title to the land, or the duplicate thereof, and such other documents or evidence as the Registrar may require or as may be prescribed.
The Registrar shall give effect to any such application by endorsing on the register document of title to the land to which, or a share or interest in which, it relates a note of the date of death of the deceased person and a memorial to the effect that the transmission has been made.
· What order do I need from the court to transfer property that values more than RM2 Million?
A vesting order is a legal order made by a court that transfers ownership of property from one party to another. In the context of estate administration, a vesting order may be necessary to transfer ownership of a deceased person's property to their beneficiaries or to an executor or administrator appointed to manage the estate.
In your case, as the value of the deceased's property is more than RM2 million, you may need to obtain a High Court vesting order under Section 420 of the National Land Code 1965. This section provides that where a person dies owning land or an interest in land, the court may make an order vesting the land or interest in the deceased's personal representative.
To obtain a vesting order, you will need to make an application to the High Court under Order 79 of the Rules of Court 2012. The application must be made in Form 110 and supported by an affidavit setting out the relevant facts and circumstances.
Under Section 420 of the National Land Code 1965, the vesting order must be lodged with the Registrar of Titles for registration. The Registrar will then issue a new title in the name of the personal representative.
· I have a vesting order by court. How can I get my name registered on the land title?
To get your name registered on the land title, you will need to follow the procedures outlined in Section 420 of the National Land Code.
First, you will need to obtain a copy of the vesting order from the court and serve it on the Registrar or Land Administrator. This can be done by submitting the order to the relevant office in person or by mail.
Once the Registrar or Land Administrator receives the copy of the vesting order, they will make a memorial of the vesting on the register document of title to the land, share, or interest in question. The Registrar or Land Administrator will sign and seal the memorial, and if possible, make a copy of the memorial on the issue document of title to the land or lease or charge, as applicable.
After the memorial has been made, the Registrar or Land Administrator will issue a new document of title in your name. This document will serve as proof of your ownership of the land, share, or interest in question.
It is important to note that the vesting order must be registered pursuant to Section 420 before it can take effect. Until the order has been registered, the land, share, or interest in question will not be affected by the vesting order.
In summary, to get your name registered on the land title, you will need to obtain a copy of the vesting order, serve it on the Registrar or Land Administrator, and follow the procedures outlined in Section 420 of the National Land Code. Once the order has been registered, you will receive a new document of title in your name, which will serve as proof of your ownership of the land, share, or interest in question.
VIII. Working with Lawyers and Amanah Raya Berhad
· When should I consult a lawyer for assistance with obtaining a Letter of Administration?
You should consider consulting a lawyer for assistance with obtaining a Letter of Administration in the following situations:
Early in the process: It's a good idea to consult a lawyer soon after the death of the deceased, especially if you are unsure about the estate administration process or the applicable laws. A lawyer can help you understand your legal rights, responsibilities, and the steps involved in obtaining a Letter of Administration.
Complex estate: If the estate is complicated, involves numerous assets, or has significant debts, it can be beneficial to work with a lawyer who can help navigate the complexities and ensure the proper administration and distribution of the estate.
Disputes or conflicts: If there are disputes or conflicts among family members, beneficiaries, or creditors regarding the estate, a lawyer can provide valuable guidance and help resolve the issues. This can be crucial in preventing further complications and delays in the estate administration process.
International assets: If the deceased had assets in multiple countries, you may need a lawyer to help navigate the different legal jurisdictions and coordinate the administration of the estate across borders.
Legal challenges or claims: If there are potential legal challenges or claims against the estate, such as disputes over the validity of a will, a lawyer can help defend the estate and provide guidance on how to proceed.
Inadequate knowledge or experience: If you lack experience or knowledge in estate administration or feel overwhelmed by the responsibilities, a lawyer can provide valuable assistance and guidance, ensuring that the estate is administered correctly and in accordance with the law.
· How can a lawyer assist me in the process of obtaining a Letter of Administration, and what are the benefits of working with a lawyer?
A lawyer can be very helpful in the process of obtaining a Letter of Administration, which is a legal document that gives the administrator the authority to manage and distribute the assets of a deceased person's estate. Here are some ways in which a lawyer can assist you in this process:
1. Advising on the legal requirements: A lawyer can explain the legal requirements for obtaining a Letter of Administration, including the documents that need to be filed and the procedures that need to be followed. This can be especially helpful if you are unfamiliar with the legal system or if you are unsure about the requirements.
2. Preparing the application: A lawyer can help you prepare the application for a Letter of Administration, including drafting the necessary documents and filling out the required forms. This can ensure that the application is complete and accurate, which can help to avoid delays or rejections.
3. Representing you in court: If there are any disputes or challenges to the application for a Letter of Administration, a lawyer can represent you in court and argue your case. This can be especially important if there are multiple potential administrators or if there are disagreements about the distribution of assets.
4. Providing legal advice: A lawyer can provide legal advice throughout the process of obtaining a Letter of Administration, including advice on the distribution of assets, tax implications, and other legal issues that may arise.
The benefits of working with a lawyer include:
1. Expertise and experience: A lawyer has expertise and experience in the legal system and can provide valuable guidance and advice throughout the process.
2. Reduced stress: Working with a lawyer can reduce the stress and anxiety associated with the process of obtaining a Letter of Administration, as the lawyer can handle many of the details and provide reassurance and support.
3. Faster resolution: With the help of a lawyer, the process of obtaining a Letter of Administration can be completed more quickly and efficiently, which can help to resolve any legal issues and distribute the assets of the estate in a timely manner.
In summary, working with a lawyer can be very beneficial in the process of obtaining a Letter of Administration, as the lawyer can provide valuable guidance and support throughout the process, and can help to ensure that the application is complete and accurate.
· How much does it cost to hire a lawyer for assistance with obtaining a Letter of Administration, and how are the fees calculated?
You can refer to our fee rate here https://ms.ascolaw.co/post/kos-pembahagian-harta-pusaka-updated-2021
· How can a lawyer help to resolve disputes or conflicts that may arise during the process of obtaining a Letter of Administration or the distribution of the estate?
When seeking assistance with obtaining a Letter of Administration, it's essential to find a lawyer who can effectively represent your interests and guide you through the process. Here are some qualities to look for in a lawyer:
Relevant experience: Ensure the lawyer has experience in handling cases related to estate administration and probate matters. They should be familiar with the applicable laws and procedures involved in obtaining a Letter of Administration.
Communication skills: A good lawyer should be able to clearly explain the legal process, requirements, and potential outcomes to you. They should also be responsive to your inquiries and keep you informed about the progress of your case.
Professionalism: The lawyer should demonstrate a high level of professionalism, including punctuality, organization, and attention to detail.
Empathy and understanding: Dealing with estate matters can be emotionally challenging. A good lawyer should be empathetic and sensitive to your situation while providing sound legal advice and support.
Reputation: Look for a lawyer with a strong reputation in the legal community, as well as positive reviews or recommendations from past clients.
Transparency: The lawyer should be upfront about their fees and provide a clear breakdown of costs involved in obtaining a Letter of Administration.
Problem-solving skills: A good lawyer should be able to identify potential challenges and provide solutions to help you navigate through the process smoothly.
Availability: Ensure that the lawyer has enough time and resources to dedicate to your case, so they can work efficiently and promptly on your behalf.
Ethical standards: The lawyer should adhere to the professional code of conduct and maintain the highest ethical standards.
By considering these qualities, you can increase your chances of finding a lawyer who can effectively assist you in obtaining a Letter of Administration and managing the estate.
· What are the legal consequences of not obtaining a Letter of Administration, or not fulfilling the legal requirements for the distribution of the estate?
If a Letter of Administration is not obtained, or the legal requirements for the distribution of the estate are not fulfilled, there can be several legal consequences:
Inability to access and manage assets: Without a Letter of Administration, the deceased's assets may remain inaccessible and unmanageable. This can lead to complications, such as unpaid debts, taxes, and other financial obligations.
Loss of control over the estate: If the deceased's family or beneficiaries do not apply for a Letter of Administration, the court may appoint an administrator to manage the estate. This may result in a loss of control over the distribution process.
Legal disputes and litigation: Failing to properly administer the estate could lead to legal disputes among beneficiaries or between beneficiaries and the administrator. Such disputes can result in costly and time-consuming litigation.
Personal liability: If the administrator does not fulfill their legal responsibilities, they may be held personally liable for any losses or damages incurred by the estate or the beneficiaries. This could include claims for breach of fiduciary duty or mismanagement of assets.
Penalties and interest: Failure to pay taxes, debts, or other financial obligations on time may result in penalties and interest charges, increasing the estate's financial burden.
Delays in distribution: If the legal requirements for the distribution of the estate are not met, it can lead to delays in the distribution process, leaving beneficiaries waiting for their inheritance.
Loss of assets: In some cases, assets may be lost or diminished in value if they are not properly managed during the estate administration process.
To avoid these legal consequences, it is essential to obtain a Letter of Administration and ensure that the legal requirements for the distribution of the estate are met. Working with a knowledgeable lawyer can help guide you through the process and mitigate potential risks.
· How much does Amanah Raya charge for its services?
Amanah Raya Berhad charges estate administration fees according to a tiered structure based on the value of the estate. The fee structure is as follows:
- 5% for the first RM25,000
- 4% for the next remaining balance up to RM225,000
- 3% for the next remaining balance up to RM250,000
- 2% for the next remaining balance up to RM500,000
- 1% for any remaining balance
For example, if the estate is valued at RM1,000,000, the total fee for estate administration services would be RM27,750.
It is important to note that this is an estimate based on the information provided in the knowledge base and the actual fees may vary depending on the specific circumstances of the estate. It is recommended to consult with Amanah Raya Berhad or a qualified legal professional for more accurate information on estate administration fees.
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