1. What is Probate?
Probate involves the applications for letters of representation (only applicable to deceased people with a will) which upon grant to the personal representative, the representative shall then be responsible for the administration of the deceased’s estate that includes the collection of the assets, the payment of debts and liabilities and the distribution of the residual assets (after complete payment of debts and liabilities).
2. What can be obtained by way of a Grant of Probate?
Moveable Assets – Vehicles, Shares, Bank Monies, Insurance etc.
Immoveable Assets – Land, House etc.
Subject to deduction of liabilities – Funeral Expenses, Loans, Solicitors fees, Credit Card debt etc.
3. What are the main focus and/or requirements to apply for a Grant of Probate?
Including but not limited to:
a) Existence of the deceased’s will
· must be in compliance with the Wills Act 1949
· important to locate the original will unless the original will is destroyed or lost
b) Proof of death of the deceased
· must have a physical copy of the deceased’s death certificate/ any other evidence of the death of the deceased with details of where and when the deceased died
c) Validity of Appointment of Executor(s) [whom are the Applicant(s) who apply for Grant of Probate]
· subject to appointment as stated in the deceased’s will
· executor(s) is/are of sound mind and at least 18 years old
d) Existence of beneficiary(ies) stated in the will
e) Locating Witnesses of the Will for Affidavit of Witness purposes
f) Administration order obtained from letter of administration must be revoked before applying for Grant of Probate
4. What are some of the possible causes of delay and/or difficulty in applying for Grant of Probate?
a) Unable to locate and produce deceased’s will
b) Unable to locate witnesses
c) Unable to locate other joint executors to conduct joint executorship
d) Refusal of executor
i. bad character, financial position or ineptitude for business of an applicant;
ii. the fact that he had an interest incompatible with the proper administration of the estate;
iii. his minor interest in the estate;
iv. he is personally objectionable to other persons entitled to share in the estate.
5. What to do if the original will is destroyed or lost?
a) If the original will is temporarily lost or unable to be obtained yet, a copy or draft will identical to the original will may be produced until the original will can be located and produced for the application of Grant of Probate.
b) If the original will has been destroyed or permanently lost not because of the deceased’s action or consent to such destruction or permanent lost, a copy or draft of the original will or of the contents of the original will can be produced to obtain Grant of Probate if the said copy or draft will can be proven sufficiently to be identical as the original will.
6. What steps can be taken if a deceased is intestate (no will) or a deceased’s will is still in the midst of being located?
If a deceased is intestate (no will), several other methods applicable to apply for distribution of the estate of the said deceased are:-
a) small estate distribution application (only applicable for assets in total up to 2 million Ringgit Malaysia as at August 2023);
b) application for a letter of administration from the High Court; and
c) application by way of Amanah Raya Berhad (only for moveable assets and total assets not exceeding RM600,000.00).
If a deceased’s will is still in the midst of being located, the applicant can apply for a letter of administration from the High Court which shall be limited to until the will is found and produced. If limited administration rights of the administrator(s) has/have expired, and some of the deceased’s estate remains unadministered, letter(s) of administration may be granted to the person(s) with the original grant(s) of letter(s) of administration.
Please reach out to us should you need any legal help at penang@nglaw.com.my or +601154304970 / +6046024970.
REFERENCES
1. Probate And Administration Act 1959.
2. G. Raman (2005). Probate and Administration in Singapore and Malaysia: Law and Practice.
3. A.H. Halim (2012), “Administration of Estates in Malaysia Law And Procedure”.
4. MyGovernment, “Managing Family Institution”, https://www.malaysia.gov.my/portal/content/30336 (Obtained as at 09.08.2023).
5. Williams, Mortimer and Sunnucks, Executors, Administrators and Probate(1982) (16th ed)
