1. In what situation do we apply for Grant of Probate or Grant of Letters of Administration?
When there is a Will left behind by the deceased, immediate family members will apply for Grant of Probate. However when he/she dies without a Will, the family members have to apply for Letters of Administration.
2. What is Letters of Administration (LA)?
Letters of Administration is an authority given under the seal of the Court for the administration of the estate of a person who has died without a Will.
3. What is Grant of Probate (GP)?
The Court order that formally authorize the Executor to administer the deceased’s estate according to the Will.
4. What happen if someone dies without a Will?
The estate of the deceased is frozen. The immediate family members need to apply for Letters of Administration to unlock the deceased estate before transferring to his/her family members.
5. Can Probate be granted on a copy of a Will?
Yes, provided it is proved that the original Will has been lost or accidentally destroyed.
6. Can the witnesses and the testator sign on the Will at different time?
No, both the witnesses and the testator must sign the Will at the same time. The function of the witnesses is to confirm and verify the state of mind of the testator as being sound mind.
7. What happen if both witnesses to the Will have died or cannot be located when the Will is submitted to the Court for Probate?
The Court will require an affidavit from the person who was present when the Will was executed. If there is no such person, it will require an affidavit from a person who can verify the authenticity of the testator’s signature.
8. Can I make alterations to my Will without writing a new Will?
It is advisable to write a new Will if the alterations are substantial. If it is a minor alteration – a typing error, for example, you can alter your Will and sign beside the alteration in the presence of the same witnesses. After that, the witnesses will also be required to sign beside the alteration in order for it to be effective.
9. Does a Will need to be stamped and sealed?
A Will does not need to be stamped to be valid. Sealing a Will only serves the purpose of confidentiality.
10. Who is testator?
Testator is a person who makes a Will.
11. How long it takes to apply a Grant of Probate?
Normally shorter than LA application, it varies from a minimum of six months to a year, depending on the size of the estate.
12. I have written a few Wills, which I have lost. Recently I had another Will written. If any of my old Wills are recovered after I die, which will be the valid Will?
The latest one.
13. Can I sell away my assets mentioned in my Will?
Yes, you can, once you have sold off any of the assets mentioned in the Will, the respective beneficiary will receive nothing as on the date of your death, there is no such asset.
14. I will be getting married in a few months’ time. I understand that if I write my Will now, my marriage will revoke it. What do I do in the meantime?
You can write a Will now, but put it a clause stating that your ‘contemplation of marriage’ will not revoke your Will. The name of the person whom you are marrying must also be stated in the Will.
15. I have written a Will five years ago. Since last month, I have become a Muslim, is my Will still valid?
No, once a person professes Islam, the distribution of his/her estate will be governed by Syariah Law.
16. What are the advantages of having a Will written?
You provide for your beneficiaries in the way you choose rather than letting the Law decides for you;
Expedite legal process;
No sureties required;
You may appoint guardian of your choice for your infant children;
You exercise the right to appoint people of your choice to administer your estate and to carry out your wishes so as to safe guard the interest of those you love and care;
It costs less in term of legal fees and time to apply for Grant of Probate than letter of Administration
17. What are the duties of the Trustee in a Will?
Continue to administer the estate where the properties cannot be distributed, e.g., for a minor. Manage the estate according to the instructions and powers given by Will and the Trustee Act a949.
18. After signing the Will, the testator divorces his wife whom is a beneficiary in the Will, will she be able to receive the gift mentioned in the Will?
Yes, she will. Divorce, unlike marriage, does not revoke a Will. Therefore, if you have divorced or separated, you should consider rewriting your Will.
19. Can I will away my foreign assets?
Yes, only the movable assets in foreign country. The immovable assets will follow the law of the country domicile.
20. What is domicile and what is lex situs?
Domicile is the country in which a person is or is presumed to be permanently resident and lex situs means the law of the place where the property is situated. It is the general rule that for movables the law of the testator’s domicile applies, whereas for immovable, it is the lex situs that applies.
21. Under what situation the Court will not require an administration bond (surety) when applying for letter administration?
The administration bond can be waived when
the gross value of the estate does not exceed RM 50,000.00;
the administrator is a trust corporation;
the administrator is the sole beneficiary;
the Court waiver – full or partial. This is at the discretion of the Court.
22. I am going to inherit some assets from my father when he passed on in future. Can I specify them in my Will even though I do not own the assets at the point when I write my Will?
Yes, you can. This because one of the characteristics of a Will is that it only takes effect upon death. As such, even though the assets do not belong to you at the time of writing your Will, they may belong to you at the time of your death, in which case you can pass them on to your beneficiaries.
23. I have a house under joint name with my husband. Can I will my share of the house away to whoever I wish?
Yes, you can will away your share of the house.
24. At what age will my children inherit my property?
A person is legally capable of holding property upon attaining the age of 18. If you want your children to inherit later then it should be expressly stated in your Will the age which they should inherit.
25. I was working in USA for five years, and had written a Will there. Now I am back in Kuala Lumpur. Is my Will recognized by the Court in Malaysia?
It will be recognized by the Courts here if the Will was made in accordance with the manner required by the Wills Act 1959 in Malaysia, or the laws of the USA pertaining to the Wills.
26. Can one of my beneficiaries be the executor, trustee and guardian in my Will?
Yes, you can. However, for check and balance, it is always advisable to appoint a guardian who does not perform the duty of a trustee.
27. I am an orphan. My mother never came back after leaving me with my nanny, who has raised me since then. My nanny is rather old now and dependent on me. When I am gone, will she benefit from my assets?
No, she would not. You need to write a Will, named your nanny as a beneficiary. If you are not married and do not have next of kin, your assets will go to the go the government.
28. I want everything I own to my children but I plan to have one or two more children in the near future, does it mean I have to rewrite my Will every time I have a new child?
No. You can include the clause en ventre sa mere which means future children as well.
29. I am an illegitimate child and my father, who died recently, was an orphan. He did not leave a Will. Am I able to claim from his estate as I am his only child? My mother is married to someone else and lives in another country.
According to the law, you will not be entitled to claim from your father’s estate as you are illegitimate, but you can claim from your natural mother’s estate provided she does not have any other legitimate children.
30. I don’t want my husband to inherit a single cent from my estate but I was told that I should give him at least RM 1.00 under my Will to prevent him challenging my Will. Is this true?
Any amount given to your husband will not prevent him challenging your Will. It is not necessary to give anything to your husband if you do not wish to. However, you can state a reason in your Will why you exclude him and state in your Will that you are aware of leaving nothing to your husband.
31. If I have nominated my parents as the beneficiaries for my EPF account, can I subsequently will it away to my spouse? Can my Will revoke the nomination I made earlier?
No, your beneficiary in your Will will not be able to revoke your earlier nomination made in EPF account. Under the EPF regulations, a Will cannot revoke an earlier nomination. To revoke the earlier nomination, you have to use the prescribed form provided by the EPF Board. However, if you have withdrawn the approval portion of your account to invest in unit trust, this portion can be willed away.
32. Can a beneficiary or his/her spouse be a witness in a Will?
No, a beneficiary or his/her spouse must not be a witness in a Will. If he/she does, then he/she will lose his/her share in the Will. However, this will not affect the validity of the Will.
33. Is it true that the consent from all the legal beneficiaries to the estate of the deceased in case of intestacy required before the administrator can be appointed?
Yes, the consent from all members of the family is required. Any beneficiaries who are not applying to become the administrator will have to renounce his/her right to the appointed administrator.
34. Who can write a Will?
Any Malaysian had attained the age of 18 for Peninsular Malaysia and Sarawak. For Sabahan, the minimum age is 21.
35. Can I appoint guardians for my children and make a prearrangement to pay my guardian in the Will?
Yes, you can appoint guardians for your young children in a Will. As for payment to the guardian, special instruction can be drafted in your Will to pay them periodic payments only if they act.
36. I understand that guarantors are required for the application of a Letters of Administrator (LA) if one passed on without a Will?
Yes, the administrator must get two guarantors to sign the administration bond before LA can be extracted and the guarantors must have assets within the jurisdiction equivalent to the gross value of the deceased’s estate.
37. I was advised that I should not appoint the same person in my Will as my Trustee and Guardian, what is the reason for this?
The role of your Trustee is to hold on trust your moneys and other assets for your minor children while your Guardian is to take care of the welfare of your minor children. Thus, it is always wise to have different persons to ensure there is counter-checking.
38. Under what circumstance a testator need to appoint a Guardian and Trustees?
When there is a minor beneficiary named in the Will, the Trustees will hold on trust till beneficiary has attained the age of 21 and a Guardian is to take care of the minor children if both parents predeceased.
39. Do I have control of my assets when I write my Will?
Certainly, a Will will only take effect upon your death.
40. Can I donate a specific amount to charity?
Yes, you can mention the specific amount for donation. However, you need to name the charity that you want to benefit in your Will.
41. Can I state my funeral arrangement in my Will?
Yes, you can. In a Will, you can mention your wishes and the appointed the Executor will have to carry out your wishes.
42. In my Will, can I create a ‘Trust Fund’ to pay the maintenance expenses of my elderly parents and my retarded nephew that I loved very much?
Yes, you can. It can be known as ‘Maintenance Trust” for your elderly parent and your nephew. ‘Trust Fund’ can also be created for payments of education expenses, medical expenses, monthly donation etc.
43. If I write my Will today and pass on tomorrow, is my Will valid?
Yes, it is valid as long as the Will is written in accordance with the Will Act 1959, signed and witnessed by two independent witnesses.
44. What is a residuary clause?
It is one of the vital clauses in a Will. Any asset which the testator forgot to will away will automatically fall under the residuary clause. Thus, with a residuary clause, there is no partial intestacy of a Will.
45. I have written a Will recently. I am going to purchase some new assets next month, do I need to rewrite again? Will there be anyone receive these assets when I passed on without writing a new Will to include these new assets?
No, the new assets will fall under the residuary clause and distribute accordingly. However, if you do not want the beneficiaries named in the residuary estate to benefit from these new assets, then you need to write a new Will and name your preferred beneficiary for the new assets acquired after the date of the Will.
46. If I have already set up a Trust Account, should I write my Will and vice versa?
A Will is a necessary document to facilitate smooth and efficient distribution of your estates to intended beneficiaries. A Trust on the hand is an estate planning arrangement to prevent the necessary assets from being frozen or falling into the distribution process under the Will or the Distribution Act 1958. They are complementary instruments and you may need both, depending on your specific circumstances.
47. Can I keep my Will written by Rockwills franchisee in my safe deposit box in my bank?
It is not advisable because the safe deposit box will be frozen when you passed on. Thus, your family members may not be able to retrieve it for application of Grant of Probate.
48. It is stated in my Will that “I give my wife X RM10, 000”. After a divorce, she is no longer my wife and the description of my relationship with her is no longer valid. If I do not rewrite my Will, will she still able to inherit RM10, 000 from me?
The former wife will still be able to inherit the RM10, 000.
49. I bought a house recently and it is charged to the bank. If I give the house to my son, would my son have to settle the housing loan with the bank before he inherits the house?
Yes, he has to. Thus, it is advisable to purchase a Mortgage Reducing Term Assurance (MRTA) to pay for any outstanding loan should you passed on suddenly. Alternatively, it can be mentioned in the Will that the loan is to be paid from the testator’s estate.
50. I have withdrawn RM50, 000.00 from my EPF account to invest in some unit trust fund. If I passed on, will my nominee for my moneys in the EPF account able to receive my unit trust investment as well?
No, your nominee will not. These unit trust investment form part of your estate not part of your EPF account. You can will this investment in your Will.
51. I have nominated my sister in my life insurance policy but was told that my wife and children are the true beneficiaries. Is this true? If yes, how to I ensure she gets the money?
Yes, it is true as the Financial Services Act 2013, schedule 10, para 5 states that any person other than spouse, children and parent (if single) will only receive the policy money as an executor and must pass the money back to the deceased estate (or beneficiaries i.e. wife and children in this case). If your parents are alive they are entitled to a quarter of the money. Therefore, if you want her to receive this money, you can either assign the policy to her or write a Will in which you name her as the beneficiary to this particular policy.
52. In what circumstance a Will need to be rewrite?
They are a few situation you should consider rewriting your Will:
Your Will is lost or destroyed;
You intend to reallocate your assets to your beneficiaries;
You want to change your beneficiaries, Guardian(s), Trustee(s) or Executor(s);
There is substantial change in your financial situation;
A new arrival in the family;
You separate from or divorce your spouse;
You enter into a de facto relationship;
You intend of set up a Trust fund for your beneficiaries;
The death of both witnesses of the Will or difficult to locate both witnesses or if they migrate to another country;
There is a change in legislation such as death duties.
53. If I inherit a house from my father when he passed on, do I need to pay stamp duty before transferring the house to my name?
Yes, you do, only a nominal amount, it is not according to the current market value of the house.
54. Can I will away my immovable properties outside Malaysia in my Will?
No, the immovable properties will normally follow the law governing the immovable properties as it can vary from country to country. Thus, it is advisable to write a separate Will for these immovable properties.
55. I have only a house to will away to my son, can I write a simple Will myself and just mention that I give my house to my son on my demise, sign by me and two witnesses? Is this simple will valid?
If you write a simple Will without mentioning appointment of Executor/Trustee, a residuary clause and other essential clauses, your Will might become partial intestacy. Thus, it is always advisable to get a professional Will-writer to draft your Will to ensure it is a 100% valid Will.
56. I have a son, named John from my relationship with a man whom had left me. Recently, I am married to A, if I do not write a Will, will my son John able to receive part of my estate under the Distribution Act 1958?
No, as he is not a legitimate child. You need to write a Will to include him.
57. My client is a major shareholder of a Private Limited Company. Can he will away a piece of land which is registered under the name of the Company?
No, the Private Limited Company is a separate legal entity and is the true owner of the piece of land. He only owns it indirectly through the shareholdings in the Company and as such he cannot will it away. However, he can instead will away his shares in the Company.
58. I own a Private Limited Company. Can I will the shares to someone but, at the same time, put in a condition that the shares cannot be sold without the consent of a particular person?
No. Putting the condition in the Will cannot be legally effective because the Will does not bind the Company whose shares are being held as it is a separate entity. Any restriction on transfer of shares has to be mentioned in the Memorandum and Articles of Association of the company concerned.
59. Can I put everything under my company’s name instead of writing a Will?
The first issue that will arise is what will happen to your shares in the company when you pass away. Who are going to benefit and how are you going to effect the transfer of those shares? Secondly, if it is not purely a holding company you should consider the risk of losing everything should the business fail and this defects the purpose of limited liability. Thirdly, any immovable property registered under a company will attract real property gains tax upon disposal irrespective of how long it was acquired. Last but not least companies will need to submit their annual reports and audited accounts every year and these will be considered public documents. As such, there will be a lack of confidentiality.
60. Can a Power of Attorney be used to transfer my assets to my family upon death?
A Power of Attorney normally allows the person whom the power is granted (the ‘donee’) to deal with the property of the donor e.g. selling, leasing or charging it or to enter into other legal transaction on behalf of the donor. A Power of Attorney will be revoked upon the death of either the donor or donee and as such it cannot be used like a Will to effect transfer of your assets to your family upon your death.