Property and divorce lawyer Johor Bahru

When someone has passed away , his or her property is administered under either the Grant of Probate or Letters of Administrations.

The administration of the estate follows two distinct paths depending on whether the deceased has left a will or not. In both of these cases, all his assets will be frozen until Grant of Probate or Letters of Administration is obtained. It is a time-consuming and tedious process as we may not know the whereabouts of his surviving legatee, assets or even his debts.


Distribution Act 1958


If a person has died intestate (without leaving a will) , his estate will be distributed under the Distribution Act 1958 .

Section 6 of the Distribution Act 1958 clearly sets out the manner the assets to be distributed. Hence, it is pointless for the relatives to fight and quarrel over how they want to distribute. Everybody will have their fair share according to law.

  • (A) Only spouse survived (no parents/ children): spouse 1/1.
  • (B) Spouses and parents survived (without children): spouse: 1/2 parents 1/2;
  • (C) Only children survived (no spouse and parents): children 1/1.
  • (D) Only parents survived (no spouses/ children): parents 1/1.
  • (E) Spouses and children survived (no parents): spouse: 1/3, children 2/3;
  • (F) Children and parents survived (no spouse): parents 1/3, children: 2/3;
  • (G) Spouses, children and parents survived : spouse: 1/4, parents 1/4, children 2/4;

If the deceased died without leaving any parents, spouse, or children , then the inheritance will be distributed in the following manner: 

  1. Siblings
  2. Grandparents
  3. Parents’ Siblings
  4. Great-grandparents
  5. Great-grandparents’ siblings
  6. government

The following persons will not be entitled to the inheritance:

  • Cohabiting Partners, Lovers,
  • Stepchildren Children (unless legally adopted via court order)
  • illegitimate children

Step 1: Insurance pay out

The insurance company shall first to be notified to enable the policy moneys can be disbursed much faster without the need to obtain the Grant of Probate or Letter of Administration or Distribution Order. Moreover, the policy moneys payable do not form part of the estate of the deceased policy owner and are not subjected to the deceased policy owner’s debts. It is also pertinent to check whether the policy money disbursed is sufficient to cover any existing debt especially when the housing loan is not fully paid off.


Step 2: Choosing your path of administration of estate

Different people seems to suggest different way of administrating the deceased’s estate. So who’s right and which is the best option?

Here are some things to consider and you should learn and understand that each path has its own advantages and disadvantages. Your relatives and friend’s experience may be completely different from yours. Listen to the real expert instead of blindly follow your peers. The procedure involved, cost and the time expended can be vary greatly depending on which path you are choosing. You do not wish to start over if something had gone wrong.


Option A: Small Estate Tribunal in Land Office

Small Estate Distribution Order 1955 authorises the District Land Office to dispose the deceased’s property with a total estate value of not more than two million , including other movable property, such as cars, monies in bank. You can apply to the nearest Land Office where the property is situated by completing the prescribed form by yourself . Other than that, just wait for your turn to be called for hearing.

Advantages:

  • cheap
  • the process can be done by your own.
  • Disadvantages:-
  • the applicants need to look for 2 witnesses which has somehow related to the deceased
  • the applicant need to look out every surviving legatee and obtain their written consent before any assets can be distributed
  • all surviving legatee need to be attend in the hearing
  • process is complicated and there is risk that the documents submitted by your own are not in order when comes to hearing date
  • ton of time wasted when travelling between different government institution;
  • the queuing time is very long, and applicants often take years before obtaining hearing date
  • the assets must consists of immovable property, otherwise the Land Office does not have the power to deal the same

Option B: Amanah Raya

Amanah Raya Berhad is Malaysia’s premier trustee company wholly owned by the Government of Malaysia who has been entrusted to administration of estate.

Disadvantages:-

  • The fees/commission is payable on percentage and is not on flat rate basis. It varies depend on the value of property intend to be distributed.
  • In the event the value of the property is very high, the fees/commission payable can be exorbitant.

Option C: High Court

Advantages:

  • process can be done with the assistance of experience lawyer with the utmost care and attention and as efficiently and economically as possible
  • preliminary advise on any citation/caveat has been filed by other party before applying grant of letters of administration
  • avoid making your own mistakes
  • things moved much quickly as possible which can be completed within 3 months to 1 year
  • fees paid on a flat rate basis
  • no extra witnesses needed
  • high court has unlimited jurisdiction to deal with any kind of property regardless of its value
  • preliminary advise on real gain property tax incurred and with proper tax returns form filed

The lawyer shall assist to file the following cause papers into High Court:-

  1. Originating Summons for the deceased ‘s estate to be granted to a interested representative/administrator (two administrators must be required if the beneficiary is of minority age);
  2. Renouncement of right of representative;
  3. List of Assets and Liabilities;
  4. Administrative Oath;
  5. Administrative Bond;
  6. if the value of the property exceeds RM50,000, two sureties must be appointed to ensure that the executor’s assets are properly distributed (unless dispensation has filed);
  7. Renouncement of right in receiving the estate (if any);
  8. Order of Sale (if any);
  9. Distribution Order to allow the property to be distributed in different manner (if any).


Step 3: Transfer and Transmission

Once a letter of administration has been issued, the deceased’s estate need to go through a transfer and transmission process to allow the title deed to be registered in favour of the intended beneficiaries. The legal fees is payable based on the market value transacted but the stamp duty will be exempted (only nominal amount RM10.00 need to be paid). Nevertheless, full stamp duty shall be payable in the event that the assets were distributed in the different manner instead of prescribed share stated in Distribution Act 1958 above.

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