A Self-Help Guide for Dealing Estate (Without Will)

1. Overview

In order to deal with someone’s estate after they die without a Will, we need “letters of administration” (LA). The purpose of having an LA is to formalize the authority to administer the estate of the intestate.

2. Who can apply?

If the person did not leave a Will, it would 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.

3. Where to apply?

The application for LA could be made either at the High Court or even at the Land Office where your immovable property is located through the District Land Administrators (‘DLA’).

In terms of the application for LA through DLA, it requires that the estate involved must:-

a)         consist wholly or partly of immovable property; and

b)         not exceed RM2 million in total value.

If one chose to apply for LA through DLA, note that no lawyer shall be allowed as a legal representative unless permitted by the DLA.

4. If you’re an administrator

You will be responsible for distributing the estate of the person who’s died.

For starters, you’ll need the documents described as below in order to apply for a grant of probate or letters of administration:-

a)         the original death certificate;

b)         list of assets and liabilities of the person who has died (together with proof of ownership); and

c)         list of beneficiaries (“the Distributions Act 1958” (DA 1958) decides who would inherit the estate if there is no will).

5. Distribution under DA 1958

Once the LA is granted by the High Court or the Land Office, the intestate’s estate shall be distributed under Section 6 of DA 1958 in the following manner, primarily in favor of the spouse (i.e., the legal spouse), issue (i.e., the children and the descendants of deceased children), and parents:-

1. should the intestate be survived by a spouse, issue, and parent or parents, the surviving spouse shall be entitled to 1/4 of the estate, the issue shall be entitled to 1/2 of the estate, and the parent or parents the remaining 1/4;
2. should the intestate be survived by a spouse and a parent or parents, the surviving spouse shall be entitled to 1/2 of the estate, and the parent or parents shall be entitled to the remaining 1/2;
3. should the intestate be survived by a spouse and issue but no parent or parents, the surviving spouse shall be entitled to 1/3 of the estate, and the issue the remaining 2/3;
4. likewise, should the intestate be survived by issue and a parent or parents, the surviving issue shall be entitled to 2/3 of the estate, and the parent or parents the remaining 1/3; and
5. lastly, should the intestate be survived by EITHER a spouse, issue, or parent or parents, then either of the surviving spouse, issue, parent, or parents shall be entitled to the whole of the estate accordingly.

According to Section 7 of DA 1958, any part of the estate to which the issue (i.e., the child or children of the intestate) is entitled to shall be held in trust in favor of the issue, which means, if the child or children predecease the intestate, such estate shall then be held in favor of the grandchild or grandchildren of the intestate, if any.

6. What if someone passes away without any surviving spouse, issue, or parents?

In a situation where someone passes away without any surviving spouse, issue, or parents, do not worry that the whole estate would fall into the hands of the Government. In fact, the whole of the estate of the intestate shall be held in favor of the following persons in order of priority:-

1. Firstly, on trust for brothers and sisters of the intestate in equal shares; then,
2. Secondly, for the grandparents of the intestate in equal shares; then,
3. Thirdly, on trust for uncles and aunts of the intestate in equal shares; then,
4. Fourthly, for the great grandparents of the intestate in equal shares; then,
5. Fifthly, on trust for great grand uncles and great grand aunts of the intestate in equal shares.

It must again be emphasized here that for any part of the estate of the intestate to which the (i) brothers and sisters, (ii) uncles and aunts, or (iii) great grand uncles and great grand aunts are entitled, such estate of the intestate shall be held in trust for them.

7. What if someone passes away without any immediate surviving family or relatives?

If, and only if, the deceased died without any immediate surviving family or relative as above, the Government shall be entitled to the whole estate. Such instance is indeed very rare.

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.

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