If you are responsible for administering an estate, you may wonder where to start and what steps to take. Whether you are an executor of a will or a next of kin, understanding the process of probate and estate administration is crucial to ensure that the estate is distributed according to the wishes of the deceased and the law.
A deceased person’s property in Malaysia is dealt with in one of two ways, depending on whether they left a valid will. The estate is dealt with under the Grant of Probate or the Letters of Administration. In both cases, the estate assets will be frozen until either the Grant of Probate or Letters of Administration are obtained.
If a valid will exists, executors will be appointed per the will’s terms, who must distribute the estate. The executors need to apply to the High Courts in Malaysia for a Grant of Probate, which allows the estate and its assets to be ‘released’ so that executors can do things like pay off debts, transfer or sell property, and ensure the beneficiaries get what they are entitled to. In these circumstances, no distribution order, sureties or guarantors are needed.
If no valid will exists, an application must be made for Grant of the Letters of Administration by either a family member or someone interested in the estate of the deceased at the High Court, Amanah Raya or Small Distribution Unit. The type of application depends on the nature (movable, immovable or both) and value of the estate.
A Grant of Probate (GP) is a document that the High Court issues to appoint an executor (up to 4 if acting jointly) to manage and distribute the estate. It’s the simplest and quickest way to access the deceased’s property. The grant of probate is necessary to carry out the wishes of the deceased as stated in their will and to distribute their assets to the beneficiaries named in the will.
If the executor has to withdraw or becomes incapacitated, a Court will grant the Letter of Administration with a will annexed.
When making an application for a GP to the High Court, the following documents are required:
Administrators will be instructed to distribute the estate where a person dies intestate (without a valid will). In Malaysia, anyone with a valid interest in the estate (like a creditor or next of kin) can file for a Grant of Letters of Administration.
Exactly what process the extraction of the Letters of Administration follows will depend upon the size of the estate and whether it includes real estate/immovable property in its assets. Here are some examples of types of estate and where the application should be sent to:
The following documents must support an application for LA:
The main difference between a Grant of Probate (GP) and a Letter of Administration (LA) is whether a will exists.
Other differences between the GP and LA can be summarised as follows:
|Grant of Probate||Letters of Administration|
|An executor is appointed by the deceased during their lifetime.||Any interested person (such as a creditor or the next of kin) can apply as an administrator|
|GP can be obtained in a matter of months, much less time than it takes to get Letters of Administration||Letters of Administration can take months or even years to extract|
|No requirement for sureties or guarantors||Sureties and guarantors who guarantee the estate is properly administered are required|
|There is no need for an order for the distribution of the estate as the estate is distributed according to the deceased’s wishes and desires||The administrator will have to apply for the distribution order. For non-Muslims, the amount of distribution each beneficiary is entitled to is determined by the Distribution Act. For Muslims, the portion will be determined according to faraid law.|
The Grant of Letters of Administration is regulated by the Small Estates (Distribution) Act 1955 for small estates. To qualify as a small estate, the estate must include immovable property to a value of less than RM 2 million.
The application for extraction of Letters of Administration should be lodged at the District Land Office for the area where the property is to be found. Where several properties are located in different states, an applicant may select one of the District Land Offices.
The submission should include Form A, accompanying documentation, and identification of the beneficiaries, the deceased and the estate. When they are satisfied they have received all of this, the District Land Office will hear the petition on which the Land Administrator would issue the Letters of Administration and distribution order for the estate.
For Muslims, inheritance is subject to Syariah law, which is based on the principles of Islamic teachings. The distribution of a deceased Muslim’s estate is determined by afraid, a set of inheritance rules outlined in the al-Quran. Based on their relationship to the deceased, Faraid establishes the shares of specific family members, including spouses, children, parents, and other relatives.
The Administrator must apply to the Syariah High Court for a faraid certificate if the deceased was a Muslim. Faraid law dictates further about the distribution of Muslim estates.
After receiving the Faraid certificate from the Syariah Court, the administrator can apply for Letters of Administration to manage and distribute the estate according to Faraid.