First of all, we must know that in Malaysia, if a person passes away his estate will be frozen immediately. Many people have the misconception that their family members can handle these estates directly on behalf of the deceased.
To “unfreeze” the deceased’s estate, we must first ask the deceased’s family a question: Did the deceased make a will during his lifetime? Of course, whether a will is legal must also comply with some legal requirements. In Malaysia, we have a specific act, the Wills Act 1959 to control and stipulate whether a will is legal. We will explain in detail in another article what should be paid attention to when making a will. Of course, if a person has made a will, he must let those around him know (or at least let the executor know about the existence of the will). It must be noted that the will does not need to pay any stamp duty to the government. Therefore, if the deceased does not disclose any information to his family during his lifetime, the family will have no way of knowing whether the deceased has made a will.
If the deceased has made a will before his death, then the executor of the deceased can apply to the court for a grant of probate by himself or through a lawyer. The letter of administration is similar to the probate, which is a declaration to the world that the executor is the legal estate administrator of the deceased; and the estate of the deceased will be distributed and managed according to the contents of the will. Generally, the procedure and process of applying to the court for a grant of probate is not difficult, which it may take about six months in terms of time. The court generally keeps the original will and death certificate of the deceased to avoid any fraud or impersonation.
At the same time, the two witnesses of the will must testify that the will was made with the deceased sober. Under normal circumstances, a witness only needs to give evidence through a court affidavit to affirm the legality of the will. If the relatives of the deceased have any disputes over the will, then the two witnesses are likely to have to testify in court.
On the other hand, if the deceased did not make a will during his lifetime, then the descendants or relatives of the deceased can apply to the court for a Letter of Administrator to manage and distribute the deceased’s estate. Of course, because the deceased did not specify who will become the administrator of his estate through the will, sometimes the descendants or relatives of the deceased will argue over the administration of estate; in serious cases, the deceased’s estate may not be unfrozen and lead to “seeing but untouchable”. Generally, if all the beneficiaries of the deceased’s estate agree to one of them (or up to four) as the administrator of the estate, the court will allow the estate to be administered after confirming the affidavits of all the beneficiaries and the original death certificate of the deceased.
However, according to section 35 of the Probate and Administration Act 1959, the estate administrator must provide two sureties to guarantee the amount of money determined by the court before the court will allow the administrator to obtain the letter of administration; unless exempted by the court (generally most of the time this exemption is allowed in court).
Regarding how the deceased’s estate should be distributed, Malaysia has a Distribution Act 1958 detailing how a non-Muslim dies without making a will and how his estate should be distributed. According to the law, the inheritance will be allocated to spouse, parents and children (the allocated share varies in different situations, please refer to section 6 of the law for details). If the spouse, parents and children do not survive the deceased, then other relatives may get the distribution of the estate. Of course, this law is only a distribution guide for the descendants of the deceased. If all the beneficiaries agree to other distribution methods, then the estate administrator can distribute the deceased’s estate according to everyone wishes. If there is real property in the estate, the estate administrator must apply to the court for a distribution order to specify how the real property should be distributed. The Land Office will also follow the court order when conducting the distribution procedure.
In scenario when the deceased has not made a will, if the deceased’s total estate is less than two million and has at least one piece of land, the estate administrator can also choose to apply for a letter of administration at the Land Office instead of court. The advantage is that the cost and time would be lesser; the disadvantage may be that you have to do it yourself.
Forgot to mention that in addition to managing and distributing the deceased’s estate, the executor or estate administrator must also pay off the debts owed by the deceased during his lifetime. Otherwise, the creditor can sue the executor or estate administrator through the court. Of course, the executor or the estate administrator only responds to any claims by the creditor of the deceased in the capacity of representative of the deceased.
BY WINSON TAN
Note: This article is for reference only and does not constitute legal advice. Therefore, if readers have any legal questions or needs, they should seek professional legal advice. If the reader suffers any loss by relying on this article, the author will not be held responsible.