In Malaysia, the handling of a deceased person's estate depends on whether they left a valid will. The estate is processed either through the Grant of Probate or the Letters of Administration. Regardless of the chosen path, the estate assets remain frozen until the respective legal document is obtained.
If the will exists, the appointed executors shall responsible for the distribution of the estate. The executors shall apply for a Grant of Probateto High Courts in Malaysia, which would release the estate and authorize the executors to pay off debts, sell or transfer property and distribute the assets to the beneficiaries according to the will.
If there is no will, a family member or any person interested in the deceased estate, can apply for Grant of the Letters of Administration. The procedure for the extraction of the Letters of Administration in Malaysia depends on the type and the value of the estate. The assets of your loved ones would be divided according to the Distribution Act 1958.
Probate vs Letters of Administration in Malaysia
The procedures under the Grant of Probate and Letters of Administration have several key differences, which can be summarized as below:
GRANT OF PROBATE
LETTERS OF ADMINISTRATION
The deceased has left a will
The deceased has left no will or there is a will, but the executors are unwilling or unable to fulfil it
The estate is administered by executors, defined by the will
The estate is managed by administrators, appointed by the High Courts or other authority in Malaysia upon the application
The application for the Grant of Probate is filed to the High Courts in Malaysia by the appointed executors
Any person, who might be interested in the estate, such as next of kin or a creditor, can apply as an administrator
The period for extraction of the Grant of Probate in Malaysia can take up to 3-6 months and is generally much shorter and less complicated than that of Letters of Administration
It can take from several months up to several years to extract the Letters of Administration
No requirement for sureties or guarantors
Sureties and guarantors who guarantee the estate is properly administered are required
No order for distribution of the estate is required
Distribution Order is required for the distribution of the estate
The Grant of Probate will be issued by the High Court when there is a valid Will and a proving Executor, who is able, willing, and has the capacity to administer the estate left behind. Probate will be granted to the named Executor(s) in the Will (with a minimum of 1 person up to a maximum of 4 persons acting jointly). Generally, this is the most time and cost-effective grant of representation amongst all. Unlike Letter of Administration, there is no surety required for a Grant of Probate. Further, the estate will be distributed in accordance with the terms in the Will upon extraction of the Grant of Probate, so no application for the distribution order is required.
Q&A: What is probate?
Probate is the process of proving and registering in the High Court the last Will of a deceased person. When a person dies, the executor of the Will shall administer the estate and handle the disposal of the assets and debts.
How long does it take for me to apply for grant of probate?
A Grant of Probate application normally takes a shorter time than a Letters of Administration application. Normally a Grant of Probate can be extracted within a minimum of 3 to 4 months, depending on the size of the estate.
Procedure for the application of Grant of Probate:
Appointment Of Solicitor
1 week
Execution Of Cause Paper
1 week
Filing Of The Probate Application To The High Court
1-2 months
Attendance To The Court Hearing
1-2 months
Issues You Might Face When Applying for a Grant of Probate:
Complications may arise if the original will is misplaced or if it is discovered that the will is invalid. It is crucial to familiarize yourself with the criteria for a legally valid will to pre-empt such challenges. Additionally, situations may arise where the validity of a will is contested, hindering the court from proceeding with the allocation of assets.
These circumstances have the potential to escalate into legal disputes, straining family relations. To proactively address these issues, it is advisable to engage the services of a probate lawyer in Malaysia. A proficient probate lawyer can provide guidance throughout the will-writing process, ensuring that the document adheres to legal standards. By taking this pre-emptive step, your loved ones can avoid potential complications when seeking a grant of probate in the future, fostering family harmony and mitigating the risk of legal disputes.
What is 'Grant of Letters of Administration'?
If an individual passes away without a Will (i.e., dies intestate), the responsibility of estate distribution falls on the administrator(s). Anyone with an interest in the estate, such as the next of kin, can apply for the Grant of Letters of Administration in the High Court.
Who should be appointed as an administrator?
a. Typically, the deceased's next of kin or spouse can serve as the administrator.
b. In cases where multiple candidates are suitable, all beneficiaries must unanimously agree on the appointed administrator.
Note: Individuals entitled to be administrators but not selected should renounce their rights to administer the estate.
What are the differences between Probate and Letters of Administration?
Probate is required when a will exists, while Letters of Administrtion are necessary when the deceased has no will. The process for Letters of Administration is lengthier and often more expensive than obtaining Probate.
What documentation is required for the application of the Grant of Letters of Administration?
1. Death Certificate of the Deceased
2. Administrator's IC
3. IC of all beneficiaries
4. Relevant information on the movable/immovable properties of the deceased
How will the distribution of the estate take place if there is no Will?
For non-Muslims, estate distribution follows the provisions of the Distribution Act 1958. The entitlements are as follows:
Can the beneficiaries agree to transfer the estate differently from the Distribution Act?
Yes, they may do so if they are in agreement.
Why do I need a 'distribution order'?
A distribution order is necessary for Letters of Administration cases involving immovable property before the administrator can manage such property.
What happens if the executor or administrator dies, absconds, or becomes incapacitated before fully distributing the estate?
In such cases, engaging a lawyer to apply for 'Letters of Administration De Bonis Non' in the High Court of Malaya is necessary. This allows the estate to be fully administered despite the executor's or administrator's situation.
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