You probably have seen and heard many stories of deceased super-wealthy estate tycoons leaving behind millions of inheritance to their only son or daughter, or whoever they have entrusted their will upon. Even if a will does not exist, there is something called the rules of intestacy that can sometimes turn the situation altogether. These are not concepts you only encountered in Hollywood movies or Mexican telenovela dramas, a Grant Of Probate (GP) does exist and is the document you need if you want to claim that fortune that’s rightfully yours. In case that doesn’t work, a Letter Of Administration would be required.
Two of these legal instruments as mentioned above consist of a series of steps to legalise and activate the process of estate guardianship, aka making a will. Every instrument is equally as important as the other one, however, it’s also a bumpy and hard road that is intermingled with many legal jargons and difficult procedures.
This article aims to help you breeze through the complexities of estate guardianship and why the grant of probate and letter of administration has such a mighty effect.
What is Estate Administration?
For starters, estate administration is the procedure of seeing the lawful possessions and ownership of who will get the property of the deceased person. This procedure is made according to the jurisdiction of the owner and their decision-making. However, it can be a hassle if there is no burden of proof that the deceased has said that.
Creating a will is planning ahead of time — providing a guideline to ensure your wishes are known so that others will know who will most likely inherit your estate after your death.
Management of the balance of debts and assets after death is ‘estate management’ — managing the due and legal process for dividing your physical property between your beneficiaries.
Of course, there are also obligations to consider. Now, estate administration permits you to:
Set up assets.
Recognize debts and responsibilities.
Distribution of estate among beneficiaries in ruling with the Probate and Administration Act 1959.
As a general rule of thumb, estate guardianship is essential to ensure that only the rightful beneficiaries such as the loved ones and friends of the deceased can inherit the shares, money, luxurious cars, value/deed of the property, etc. By doing so, the property can not fall into the wrong hands of fraudulent and unscrupulous people after the will-maker is gone.
What can you know about this legal jargon and all its works?
Without further ado, let us kick start the journey on how legal jargon works. Before you want to dive deeper into this subject, first of all, you have to understand that the process of applying for a Grant Of Probate(GP) or Letters Of Administration(LA) revolves around many important legal terminologies. It goes without saying, this legal aspect is mentioned numerous times in the Probate and Administration Act Malaysia.
Here are a few key figures in the will-making process that you need to know:
Testator – the will-maker aka person or the deceased owner whose estate is to be brought over for administration
Executor – the individual who will inherit the will of the deceased testator, ensuring that the wishes of the deceased are rightfully fulfilled. There can be more than one testator in certain cases.
Administrator – the person in charge of administering the estate if no executor of the will is found.
Grant of probate (GP) – a grant of permission given out by the High Court to the chosen executor(s) of a will, authorising the executor to administer the testator’s estate.
Letters of administration (LA) – in cases where a will cannot be verified, a grant of probate is replaceable with a letter of administration in Malaysia.
Summary administration – a legal instrument in which the executor asks to be taken out from the obligations of the executor, for estates that are worth a minimum of RM600,000.
The grant of probate and letter of administration would only be utilized on non-Muslim Malaysians. Muslim citizens need to apply for a Faraid Certificate from the Syariah High court.
In this situation, the estate distribution is brought out following the Faraid Law, or agreement.
Who is the Decision-Maker when it Comes to the Deceased’s Inheritance?
In Malaysia, if someone passes away with a will, a chosen executor will be in charge of estate administration. No matter what asset it is, from shares, money, cars to even a beloved pet will be divided following the deceased’s wishes.
However, if the case is the direct opposite, their assets are distributed as per the rules of intestacy laid out in the Distribution Act 1958 in Peninsular Malaysia and Sarawak, or the Intestate Succession Ordinance 1960 in Sabah.
It is necessary to ensure that the estate is not worth more than RM2 million, they are administered by the Land Office and Public Trustee, whereas estates worth more than RM2 million are supervised by the High Court.
Muslim citizens can convey their wishes through a wasiyyah, provided that they do not violate Islamic inheritance laws.
What are the steps to Undertake for Grant of Probate (GP)?
When an individual passes away, their estate remains stagnant. That means whatever bank accounts or assets that they owned when they were still alive could not be transferred, marketed, taken out, etc until an executor has been named. For non-muslim citizens, a will is the main determinant of who the estate rightfully belongs to.
Simply speaking, a Grant Of Probate or Letters Of Administration goes hand-in-hand together. This is because both of them are needed for a seamless transfer of the said estate. However, there is more to it than meets the eye regarding this situation. Since formal procedures come into play such as the application for probate and administration applications.
For a grant of probate, a probate lawyer is needed. If there is a will, a grant is delivered to the High Court for a grant of probate in Malaysia, through the executor who is named in the will.
Once this application is undertaken, it will be regarded by the High Court at the courts. A GP is summoned, and the estate administration can be accepted.
This procedure can go on from 3-6 months, and an RM1,500 fee is needed for the GA application. The documents needed are as follows:
Once a GP has been issued, the executor can distribute the estate according to the will, and follow all legal procedures.
If a will is not available, the will cannot be used or it has failed to properly summon an executor, which brings us to the next legal document available below.
What are the ways to ask for a letter of administration(LA)?
There are three rules to ask for a letter of administration here in Malaysia. First, you can go through the High Courts where the request must be brought together with the relevant documents such as death certificate, information on the applicant, the total assets and liabilities of the dead person, the total possible listed beneficiaries, and note of any interest of the applicant.
But take caution as this procedure is a complicated step that will not give you immediate or soon as possible results. Typically, proceedings can last around six months to more than two years. Even worse, if in a situation where an estate is worth more than RM500,000, the applicant needs to give TWO further sureties. These sureties must be a resident of Malaysia or any lawful state around the country and have assets approximately of the same value as the estate.
You must have two friends and/or family members with an estate valued roughly as the equal value of the deceased’s estate.
As soon as the LA has been obtained, the administrator can move all assets from the estate to their legal name and then distribute them to the respective parties.
Based on the above, you can now see the importance of sureties. The administrator is needed to appeal to the High Court for verification on the distribution, according to the Distribution Act 1958.
The other way is accessible to estates worth under RM600,000, which are entitled to administration via the Government-owned Amanah Raya Bhd. Normally, this procedure can last four to six months for estates with transferable property, i.e money, and vehicles, or 12 months for assets that are non-transferable.
If you are a beneficiary or the beneficial interest of the deceased, you are entitled to apply for this application. The fee charged is according to the price of the estate, authorised by law in regards to the Public Trust Corporation Act 1995 and Probate and Administration Act 1959.
Here’s how much you can approximately expect to pay:
For the first RM25,000
RM25,000 – RM225,000
RM225,000 – RM250,000
RM250,000 – RM500,000
RM500,000 and above
The third route you can follow is only accessible to estates such as immovable assets, for example, property. This can be applied under the Small Estates(Distribution) Act, 1955.
However, the price of the estate could not go beyond RM2 million if you want to be entitled to this choice. But the advantage of the Small Estate option is that you do not need to hire lawyers, thus making this a more cost-effective alternative to others out there.
In addition, the Land Office does not impose any fee at all for filling this petition. All the applicants need to do to kickstart the procedure is to fill up Form A of the Small Estate application.
This form is important as it gives a complete list of assets and liabilities of the person, as well as possible inheritors. Thus, you need all the following documents such as:
Form A of The Small Estate application
Identity cards or birth certificates of inheritors
Marriage certificate of deceased (if any)
Proof of assets
An authentic copy of the title to the land or official title search from the Land Office
Quit rent and assessment receipts
You can submit your applications at the Estate Distribution Unit of the Department of the Director-General of Lands and Mines (JKPTG), or the Land Office where the deceased’s immovable property presides.
Upon application, a hearing is conducted to decide the estate administration. This procedure will normally last between 3 months. Applicants and beneficiaries must come and attend this hearing in person, although a form can be filled up to give a remark saying ‘failure to give attendance’ if unavoidable. All attendees are compulsory to carry their respective identification with them at the time of the hearings.
The hearing is typically a quick run-through version of estate administration, confirming the details stated on Form A, and verifying the beneficiaries. As soon as the court is content that all the information given is of truth and accuracy, they will summon the LA and order the distribution of an estate.
Costs are determined by the value of the estate, as follows:
RM1 – RM1,000
RM10 flat fee
RM1,001 – RM50,000
RM30 flat fee
RM50,000 and above
0.2% of estate value
It would be advantageous to ask for multiple copies where you can! Banks, agencies, companies, and officials will all need a copy of this letter so that they can take action on the applicable estate administration request. You can ask for copies from the Land Office for a flat RM5 fee.
In a nutshell, the process for releasing the deceased estate in Malaysia for further dispersal to inheritors of the property would determine if there is a will that exists as well as the worth of the estate. A Grant of Probate is only necessary if the deceased left a genuine will, so you may not need to apply for it. If either will or executors are unavailable, the estate giving out will follow the laws under the Letters of Administration. This legal procedure can be brought forward either to the High Courts, a District Land Office, or the Amanah Raya Berhad determined by the worth of the estate and its composition.
As this subject is not straightforward and can be complicated as well, your best bet is to consult a credible lawyer from a reputable lawyer firm of your choice who can provide the best legal advice and guidance to safeguard your interest from time to time. As legal advice comes in many forms, the chosen lawyer firm must also handle all kinds of family conflicts and help both parties to reach a win-win family consensus.