When someone passes away in Malaysia, his or her property is administered under either the Grant of Probate or Letters of Administrations. The administration of the estate follows two distinct paths depending on whether the deceased has left a will or not. In both of these cases, the estate will be frozen until Grant of Probate or Letters of Administration is obtained.
If the will exists, it will appoint the executors, responsible for the distribution of the estate. The executors shall apply for a Grant of Probate to High Courts in Malaysia, which would release the estate and authorize the executors to pay off debts, sell or transfer property and distribute the assets to the beneficiaries. In this case, no distribution order, guarantors or sureties are required.
If there is no will, a family member or any person interested in the deceased estate, for example, a creditor, can apply for Grant of the Letters of Administration. The procedure for the extraction of the Letters of Administration in Malaysia depends on the type and the value of the estate. For estates exceeding RM600,000, guarantors or sureties are required to guarantee proper distribution of the estate by the administrator(s).
Since the application for Grant of Probate or Letters of Administration in Malaysia may be complicated due to formalities or when the estate becomes contested by heirs and beneficiaries, it is recommended to involve an attorney. A lawyer would help to channel the process in a most expedient way, assist with preparing the documents and filling in the forms as well as will stand by you in case of any disputes.
A Grant of Probate is a document, issued by the High Courts, which appoints an executor (or up to 4 of them if acting jointly) to manage and distribute the estate. This can be one of the most straightforward ways to get access to the diseased property with a minimum time required.
Should the executor withdraw or be unable or incapacitated to manage the estate, the Court would grant a Letter of Administration with a Will Annexed, appointing administrators to the estate under the provisions of the Probate and Administration Act 1959.
In case the deceased has died intestate, which means that he or she has left no will, the distribution of the estate is entrusted to administrators. In Malaysia, any person who may have an interest in the estate, such as next of kin or a creditor, may file for Grant of Letters of Administration.
The process of extracting the Letters of Administration depends on the value of the estate and the presence of immovable property/real estate in the composition of the assets. Thus for estates, which:
The procedures under the Grant of Probate and Letters of Administration have several key differences, which can be summarized as below:
|Grant of Probate||Letters of Administration|
|the deceased has left a will||the deceased has left no will or there is a will, but the executors are unwilling or unable to fulfill it|
|the estate is administered by executors, defined by the will||the estate is managed by administrators, appointed by the High Courts or other authority in Malaysia upon the application|
|the application for the Grant of Probate is filed to the High Courts in Malaysia||any person, who might be interested in the estate, such as next of kin or a creditor, can apply as an administrator|
|the period for extraction of the Grant of Probate in Malaysia can take up to several months and is generally much shorter than for Letters of Administration||the application for Grant of Letters of Administration is filed to the High Courts, or District Land Office or Amanah Raya Berhad depending on the estate and its value|
|no guarantors or sureties are required||it can take from several months up to several years to extract the Letters of Administration|
|no order for distribution of the estate is required||the administrator will need to have guarantors or sureties who would guarantee the proper administration of the estate|
For estates, where there is no will, which include immovable property, and valued less than RM2 million, the Grant of Letters of Administration is regulated by the Small Estates (Distribution) Act 1955.
In such a case, the petition for the extraction of Letters of Administration is lodged at the District Land Office, which covers the area where the property is located. If the estate includes several properties in various states of Malaysia, the applicants can choose one of the District Land Offices to apply.
Upon submission of the necessary documentation, which includes Form A, and accompanying documentation, identifying the beneficiaries, the diseased, and the estate, the District Land Office will hold a hearing of the petition upon which the Land Administrator would grant the Letters of Administration and issue a distribution order for the estate.
It should be noted that the above overview is a general description applicable to non-Muslims while the administration of Muslim estates follows separate regulations.
In the case of Muslim estates, the Administrator shall apply to the Syariah High Court to obtain a Faraid Certificate. Further distribution of the Muslim estates is fulfilled under Faraid Law or on consensus.
The procedure for the release of the deceased estate in Malaysia for further distribution to beneficiaries would depend on whether there is a will as well as on the value of the estate. Applying for the Grant of Probate presumes the most straightforward procedure, but it’s available only if the deceased has left a valid will.
In the absence of will or executors, the estate distribution is done under Letters of Administration. The application for the Letters of Administration in Malaysia can be filed either to the High Courts, a District Land Office, or the Amanah Raya Berhad depending on the value of the estate and its composition.
Since a will can often be contested and extraction of either the Grant of Probate or Letters of Administration may be complicated because of specific circumstances, it’s advisable to consult with a lawyer to account for each individual case and provide for the necessary submissions.