Overview
In order to deal with someone’s estate after they died, we either need a “grant of probate” or “letters of administration”. The former is required if the deceased left a will whereas the latter if the deceased did not leave a will.
These documents are needed in order to prove your legal right to deal with the estate.
Who can apply?
If there’s a Will, an “executor” named in the Will, or in an update to the Will (called “codicil”), can apply for a grant of probate. Do seek help from a solicitor if you cannot understand a will or codicil.
If the person did not leave a Will, it will be the “administrator” who deals with the estate. Basically, either the spouse (husband or wife), child, or parents of the deceased can apply to become the administrator.
Stopping a probate or administration’s application
Do note that if there is a dispute as to who can apply for probate or administration, or whether a Will exists, any person interested may enter a caveat in order to prevent an application for probate or administration, before it’s granted. Such a caveat is valid for 6 months in Malaysia.
If you are named executor or an administrator
You will be responsible for distributing the estate of the person who has died.
For starters, you will need the documents described as below in order to apply for a grant of probate or letters of administration:-
a) the original Will if you are the executor (not required if you’re an administrator);
b) the original death certificate;
c) list of assets and liabilities of the person who has died (together with proof of ownership); and
d) list of beneficiaries (the law decides who inherits the estate if there is no Will).
What if you do not want to or cannot be an executor
You can either give up your right to apply for probate (called “renunciation”) under the Will or appoint an attorney to act on your behalf.
The Will may have named an executor to replace someone who becomes ‘unwilling or unable’ to deal with the estate, including passing away or does not have the “mental capacity” to do so.
Apply for probate and administration
Basically, if there is a Will made in Malaysia or if the deceased lived in Malaysia most of his/her lifetime and have property in Malaysia, a probate or letters of administration can be applied to deal with the estate.
There can be up to 4 executors or administrators named in the application. If there are more than that, all must agree on who gets to make the application. Practically speaking, the lesser the applicants the better in terms of administrative work and costs.
Technically, you can apply for probate yourself under the Rules of Court 2012.
However, if it is too complicated, you may appoint a solicitor to do it for you.
How long does it take to get probate or letters of administration
In Kuala Lumpur, you will usually get the grant of probate or letters of administration within 1 month after you have applied for it.
Because of Covid-19, it is now taking between 4 and 8 weeks to obtain the same based on our experience.
Dealing with the estate
Once you have obtained the grant of probate or letters of administration, you can start dealing with the estate:-
a) Transferring the assets
First and foremost, you may request for all financial assets or bank savings to be transferred to an ‘executorship account’, save for EPF and insurance payouts, since both should go straight into the nominee’s account if nominations exist.
Different financial institutions, banks, or companies might have different procedures for such dealings, so do check with them to find out the specific steps.
b) Paying debts and taxes
As an executor or administrator, you must first pay off any debts or taxes before distributing the estate. This could include outstanding loans, bills, and taxes of the deceased.
Similarly, if this is inconvenient for you, you can hire a solicitor to help with some or all of the tasks of dealing with an estate.
Distributing the estate
Once all debts and taxes have been paid, you can distribute the estate accordingly.
Thereafter, you may prepare an estate account accordingly and record all documents showing how properties and money were distributed. These documents should include:
a) receipts showing debts and taxes paid;
b) receipts for your expenses from dealing with the estate; and
c) written confirmation that ‘beneficiaries’ (anyone who inherited) received their share of the estate.
Keep copies of the estate accounts in case a need arises.
Other related articles:
An Overview of Estate Planning in Malaysia
Distribution of Estate under Distribution Act 1958
Probate and Estate Administration in Malaysia
The Impact of the Covid-19 Pandemic on Wills in Malaysia
About the Author:
This article is written by Chia Swee Yik, Partner of this Firm, who has provided advice on probate and administration law in Malaysia.
Feel free to contact us using the form below if you have any queries.