A Will is a legal document you draw up to declare your wishes for your loved ones as to how you want your assets to be distributed after you passed on.
Without a Will, your assets could give more troubles than benefit to your family at a time when they are most vulnerable. Your loved ones could be involved in a long drawn legal process or fighting in a complex legal battle with other family members.
Without a Will, the law will decides who your beneficiaries, trustees and guardian would be. There is a legal process to go through before your loved ones can benefit from your assets. Leave nothing to chance. Make a Will and the law will protect your wishes.
When someone passed on, under the Malaysian law his/her estate will be FROZEN and to unlock the frozen estate, the following are the legal administration process (in general with exception):-
With a Will (Dies testate) - Apply Grant of Probate (GP)
The Executor appointed in the Will need to apply GP at the High Court. The GP can be obtained within 3 months to 1 year. Once the GP is extracted and all debts of the deceased settled, the Executor will distribute the estate according to the Will.
Without A Will (Dies intestate) - Apply Letter of Administration (LA)
The legal beneficiaries of the deceased's estate need to apply LA. One or two administrator(s) will need to be appointed for this purpose. Upon extraction of LA, the administrator(s) will distribute the net assets of the deceased (after settled all his debts) according to the Distribution Act 1958 (As amended in 1997).
The Legal administration process in Malaysia is applicable to all Malaysians and foreigners domiciled in Malaysia who own movable and immovable assets in Malaysia (Please refer to Distribution Act 1958)
To apply for LA, the deceased's family may need to fulfill certain requirements e.g. looking for 2 guarantors; the appointment of the administrator(s) need 100% consent from all legal beneficiaries; appointment of guardians for minors who will in-turn give consent to the appointment of administrator(s) etc, thus, this process could take 2 to 8 years and in between family contentions could occur.
You provide for your beneficiaries in the way you choose rather than letting the laws decides.
You exercise your RIGHT under the law to appoint people of your choice to administer your estate and carry out your wishes, ensure and safeguard the interest of those you loved and care. You select your preferred executor whom is expected to do a good job when you pass on.
You can also provide support in monetary form or in kind to other selected family members e.g. stay-in partner, aging uncles, dependants, friends, step-children, "god-children", church, temple or any charity organizations etc. All these persons have no provisions under the law.
You appoint Trustees and Guardian of your choice for your infant children in the event of your spouse predeceasing you or if both of you were to pass on. These are trustworthy persons who will ensure your children's welfare are in good hands.
No sureties are required for application of Grant of Probate (GP).
Generally, it costs less in term of legal fees and less time to apply for a Grant of Probate (GP) than Letter of Administration (LA).
Family members who depend on you can avoid facing financial hardship.
Without a valid Will
Firstly the deceased's assets are frozen. His/her family, spouse and children might face cash flow problems while waiting for the extraction of LA.
With the LA, all his assets will be distributed according to the Distribution Act 1958 (As amended as at 1997).
He has lost the right to appoint executor, trustee and guardian of his choice. His children's welfare may not be taken care of by the right person.
As Letters of administration (LA) is required, application to the High Court requires:
A. APPOINTMENT OF ONE OR TWO ADMINISTRATOR(S)
100% written consent is required from all lawful beneficiaries under the Distribution Act 1958 (Amended in 1997) for the appointment of the administrator(s). The administrator(s) who is chosen may not be the most suitable person to administer the estate. When there are minor beneficiaries, then, two administrators will be required before the court issues the LA. Guardians are appointed to decide for the minors as minors can not give written consent.
B. TWO SURETIES REQUIRED
Qualified guarantors are persons who have net worth value that is more or equivalent to the gross estate value of the deceased. The security may be by way of bond in the amount equivalent to the GROSS VALUE of the estate of the deceased.
More time require to fulfill the requirements for the application of LA.
More legal cost are involved.
If both the husband and wife decease together, the court will appoint guardian for the minor children.
Family contention may arise. Family members may be fighting in the court over the distribution or choice of assets.
Under the Distribution Act, if there are surviving parents to the deceased, these parents received 1/4 share of the estate. Problems will arise if these parents die later. Their entitlements will in turn go to their children. This complicates the distribution as there are more claimants. (Please refer to the chart above).
Family members might have difficulty to look for the qualified guarantors. The guarantors must have a net worth equivalent to the gross value of the deceased's estate.
This results in the delay in estate administration. Beneficiaries might take a longer time to receive their shares of the estate. The delay might result in estate shrinkage and beneficiaries might receive less due to the shrinkage in estate.
The Court requires 1 or 2 administrator(s). Family contention arises over the right to be appointed as the Administrator(s). There is risk of the Administrator(s) absconding the estate. Appointed Administrator(s) may lack competence to perform.
Family might not be able to obtain the 100% consent from all legal beneficiaries required. When there is a minor beneficiary, two Administrator(s) are needed.
To apply for LA, the family members might receive less due to the generally higher legal costs incurred.
Normally it takes 2 to 5 years OR MORE, thus dependants may face cash flow problems as the deceased's bank accounts are frozen.
Distributions under the Law might results in a change in ownership in businesses/companies of the deceased which might lead to fragmentation and loss in continuity and control.
As there is no Will, whom your beneficiaries are and the proportion for distribution are decided by the law. The distribution may not be that of your choice, and you lose your Right to distribute your hard earned assets the way you want it.
Under the Law, there is no provisions for partner, stepchildren, illegitimate children, relatives whom you support.
If both parents die in a common disaster, the Court decides who are the trustees & guardians for your minor children.
The appointed person(s) might not be competent to perform the job.
Welfare of minor might not be taken care of.
Misuse of funds by the appointed Trustee might happen.
You lose your Right to choose your preferred trustees/guardian.