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.

The post My loved one died without leaving a will (Grant of Letters of Administration) appeared first on Property & Divorce Lawyer Johor Bahru 新山律师 | Bong & Partners.

Resealing

A problem can arise where the deceased owns assets that are not located in their own country of domicile.This means that any assets not located in origin country cannot be dealt with under the their Probate granted by origin country.

A Resealing of Probate is the expression used when you need to apply to another jurisdiction, so that a Will that has already obtained a Grant of Probate in one country, can be recognised in another country (particularly, commonwealth country).Once a Reseal of Probate has been granted, the Executor shall only able to deal with the assets under the Will that are not located in the country .

The procedure for resealing

Generally, an applicant applying to the court for a reseal of probate must be accompanied by an affidavit, which includes:-

1. The place, time and time of death of the deceased, with a death certificate (if the original death certificate has been confiscated, a copy of the extraction of Death Certificate may be requested from the local government and certified by the officer of the Death Registry;
2. The details of the probate or letter of administration issued by a probate court of his country of domicile, the name of the court and the case number, and the court order;
3. whether the deceased lived or ran a business in Malaysia within twelve months prior to his death;
4. list of debts and creditors;
5. list of assets and liabilities;
6. Administration Oath.
    

Hearing

The appointed lawyer will prepare the cause papers to be filed in the High Court. Hearing date will be fixed on which the applicant must be present himself for hearing by the court’s registrar.
Upon completion, the Court will grant a court order to reseal the probate
The Malaysian court will then issue Memorandum of Resealing and Notice of of Resealing to the origin Probate Court.

Transfer and Transmission

When the Probate has been resealed, the Executor may deal with all land of the estate of the deceased by way of Transfer and Transmission. The legal fees for the transfer will be based on the current market value, but the payable stamp duty shall be only nominal instead of ad valorem.

It is important to note that if the land is subject to certain restriction of interest, (i.e the particular land will have to be subject to the by the state government’s consent before one can acquire the land), the applicant must seek the legal advise to ensure all the requirement are met before proceed the same.

The post Resealing Foreign Grant of Probate: A Step-by-Step Primer. appeared first on Property & Divorce Lawyer Johor Bahru 新山律师 | Bong & Partners.

STEP 1: appoint a lawyer

Appoint a experienced lawyer to assist you in gathering all the deceased ‘s assets, debts and taxes, and what’s left to successor.

Documents needed:-

• a) Original death certificate;
• b) Original last will and testament;
• c) Identity card of the executor and beneficiaries;
• d) List of Assets and Liabilities (with documentary evidence).

Hearing:-

The probate court will schedule a hearing after cause papers has been filed in court containing affidavit, such as the date of death, names of surviving family members and of beneficiaries named in the will, and so on. In most cases, the hearing is a formality and you need to show up. If your request is approved and all papers are in order, the Probate will be granted to you to act on behalf of the deceased.

Bearing in mind that your request can be rejected if someone else has filed application for administering the deceased’s estate in other institution, i.e. Land Office or Amanah Raya. You may need to revert the matter to this institution which had already filed initially. In worst case, somebody would have filed citation/caveat against this probate if they would want to challenge the validity of the will (expunged the will). If that is the case, the probate hearing will become a contested one whereby parties will have to litigate.

Step 2:Distributing Property and Closing the Estate (Transfer and Transmission)

The deceased’s debts shall be first be settled before you’re ready to distribute remaining property to the beneficiaries and close the estate. Thereafter, you are ready to close the estate releases you from your duties as executor.

When it comes to movable property, you need to present a certified true copy of the probate to the relevant institution such as bank, JPJ, SSM to effect the transfer and the disbursement of monies.

If the deceased’s estate consists of immovable properties, you 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 payable is based on the market value transacted but the stamp duty will be exempted (only nominal amount RM10.00 need to be paid).

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Step 1: Naming your beneficiaries and identify the asset you want to bequeath

Your beneficiaries are the people you leave your assets, such as your home and money. Beneficiaries can include close family members, extended family members, friends and colleagues. You can leave, or bequeath, house, cars, monies in bank stocks, company’s shares or even special items, like a favourite diamond ring, to a specific person.

Step 2: Naming an executor

You need to name an executor in your will. An executor will make sure your will is followed and your beneficiaries inherit as you have specified. Your executor can be a financial adviser, bank or a trusted friend, and they should not be a beneficiary of your will. If they are a beneficiary and stand to inherit, you need to name another executor to work with them who is not a beneficiary.

Step 3: Appoint a Lawyer

If you’re preparing to draft a will, chances are you’ve come across dozens of templates and how-to videos through a quick online search. While there are tons of online resources about creating wills, trusts, and powers of attorney, it’s not ideal to take a DIY approach to estate planning.

Look for a experience lawyer to address all the components of the will and ensure they are all legally binding. Having a lawyer to perform a thorough review can help ensure the document will hold up in court.

Every country has strict laws governing probate and they are different pre-requisite for acquisition of certain types of land in different states i.e, low cost house, foreign interest restriction, and they change all the time. That means you must use a template that is both up-to-date and ensure that every property you bequeathed meets your state’s requirements. If you use an outdated template, there’s a good chance your will may not be legally binding.

Documents needed:-

1. Your identity card;
2. executor’s identity card; (need not present upon signing)
3. beneficiary’s identity card; (need not present upon signing)
4. All documentary proof of title deeds, sale and purchase agreement, quit rent, assessment receipt, bank account passbook, share certificates, stock certificates, vehicle registration card

Requirement of the validity of the will

The will must be in writing, signed by the maker in the presence of at least 2 witnesses. A will maker need to have sufficient testamentary capacity upon signing whereby he understands, recollect the extent of his property and the nature and extent of the claims upon by him by those who are benefiting and those who are not benefitting from his will. Any suspicious circumstances surrounding the making of the will, such as intimidation, threats, fraud, or forgery may expunged the will. The beneficiaries may relies the aforesaid to challenge the validity of the will in court.

Step 4: Proving will in court- Probate

Once a will maker died, the will must first have been proved in a probate court to enable executor to wind up the estate and carry out the provisions in the will. The executor shall also need to responsible for legal fees in transfer and transmission when transfer a real property although no stamp duty shall be payable (only nominal stamp duty need to be paid).

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