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):-
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.
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).
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.
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)
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).
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.
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.
You provide for your beneficiaries in the way you choose rather than letting the laws decides.
|A PERSON DIES WITH A WILL||A PERSON DIES WITHOUT A WILL|
|You provide for your beneficiaries in the Will you choose rather than letting the law to decide for you.||Your estate will be distributed to the lawful beneficiaries according to the Distribution Act 1958 (As amended in 1997).|
|Partner, step children, illegitimate children, aged relative or others who depend upon you can be provided for in a Will.||Under the law, there is no provision for these group of people. They might fall into financial difficulties without your support.|
|You exercise the right to appoint people of your choice to administer your estate and to carry out your wishes, safe guarding the interest of those you love and care.||The Court decides for you. It might not be your choice.|
|No family contention could arise over the choice of administrator(s).||Family conflict may arise on the choice of administrator(s).|
|You may appoint guardian of your choice for your infant children, so that their welfare, support, health and education will be taken care by the right person.||The Court decides for you. It might not be your choice.|
|No guarantor is required for application of Grant of Probate (GP).||Two sureties are required to provide security for the due administration of the estate. The security shall be equivalent to the gross estate of the deceased. There will be delay in the estate administration.|
|Generally, it costs less in term of legal fees to apply for Grant of Probate (GP) than Letter of Administration (LA)||Legal fees could be costly.|
|With a Will, the whole legal estate administration process could take just a couple of months.||The legal process could take years. Assets could have shrunk in value when LA is obtained.|
|Your loved ones are financially protected.||Your family could be facing serious financial difficulties.|
That when someone passes on, all his assets including his/her banks account (joint/sole name), CDs share accounts, properties, private limited shares, business will be FROZEN?
In 29/5/2020 it was reported in China Press, our Deputy Prime Minister said there is a total of RM70 billion worth of unclaimed cash and assets left by the dead. To avoid the problem, he urged fellow countryman to write a Will to avoid facing problems of claiming FROZEN assets of the deceased (please refer to CHINA PRESS dated 29/5/2020 - https://www.chinapress.com.my/?p=2052492 ).
That if both parents were to go together, who will step into the parent's position to take care of the children's education and welfare? Who will be the guardian?
That without a Will, your loved ones might have to wait for years; running around searching for the required two guarantors. You lose your RIGHT to appoint the executor of your choice to administer your estate & your preferred trustees for your minor children.
That without a Will, your assets will be distributed in accordance to the Distribution Act 1958(As amended in 1997). Under the Act, your assets will be divided between your surviving spouse, children and parent(s) in a certain proportion (1/4, 1/2, 1/4). More problems arise if your parent(s) pass on soon after you. Your assets may be subdivided further between your brothers and sisters etc. Result? There will be many more additional claimants!
What will happen to your loved ones / dependants if they are unable to receive your assets in the shortest possible time after your demise?
That you do not have much to give away. The truth is writing a Will has little to do with your net worth but everything to do with leaving a legacy of love and care.
90% of your assets are without beneficiary(ies) & 90% of eligible Malaysians do not have a Will? Thus, there is an urgent need to write a Will. If not, the law will decide who your beneficiaries / trustee / guardian, NOT YOU! Assets may become FROZEN AND UNCLAIMED under the Law. Why leave it to the law when you can decide in a Will?
Have you considered why you will make sure you have named beneficiaries for your insurance & Employees Provident Fund (EPF) payouts but omit to name beneficiary for your assets like house, bank a/c, car, land, shares etc?
|THE PERSON||WHO IS HE/HER?||HIS/HER ROLE|
|Testator||A person who writes a Will|
|Executor(s)||Person(s) or Trust Corporation appointed by the testator to administer his/her estate.||
|Trustee(s)||Person(s) or Trust Corporation appointed in a Will.||To hold on trust for beneficiaries who inherit assets in a Will.|
|Guardian||A person appointed in a Will.||To take care of the welfare of minor children.|
|Beneficiary||A person or corporation named in a Will.||To receive gifts.|
|Two Witnessess||A person who witness the signing of Will||To confirm that the testator is of sound mind.|
It is always not advisable to write our own wills because we might not achieve what we want and avoid what we don't want. The following might happen:
Remember, a Will must be 'functional', as it may cause delay, problems, frustrations, anger, hardships to our family and loved ones when it is not properly drafted and 100% valid under the Law.
Get a Professional to write, even it is a simple one as it grants you with Peace Of Mind & Makes Your Wishes Come True