What is an estate?
“Estate” refers to all of the property owned by a person at the time of their death and which is to be distributed according to the law to the rightful beneficiaries. This can only take place after a grant of Probate or Letters of Administration (Surat Kuasa Mentadbir) have been obtained and the funeral expenses, debts and liabilities of the estate are paid.
Where there is a will, the estate is referred to as a testate estate. Where there is no will, it is referred to as an intestate estate.
Probate or Letters of Administration - which do I need?
Generally, the type of grant of representation (whether probate or letters of administration) required depends on whether the Deceased has left a will.
A will is declaration intended to have legal effect of the intentions of a testator with respect to his property or other matters, which he desires to be carried into effect after his death.
If there is a will the Executor named in the will shall apply to the High Court for grant of Probate and distribute the estate according to the will.
If there is no will, the person who wishes to be appointed as an administrator shall apply for letters of administration and distribute the estate according to the laws of intestacy.
Not sure what to do next? Let's chat.
Grant of Probate
What is a grant of probate?
Probate is a grant under the seal of the court authorising the executor(s) named to administer the estate of the Deceased.
In other words, it is a document issued by court which confirms the authenticity of the will of the Deceased and empowers the Executor(s) named to administer the estate of the Deceased according to the will.
Who can be an executor?
A testator appoints the executor(s) by naming the person(s) in his will.
What is the role of an executor?
Where there is a valid will, the executor receives authority to act on behalf of the testator’s estate upon the testator’s death. If the person named as executor is willing to act, he must obtain grant of probate to validate his authority to act as executor.
The executor is responsible for carrying out the testator’s wishes expressed in the will and administering the estate accordingly. This includes the transmission, conversion, payment of debts and liabilities and distribution of the estate.
How can an executor apply for grant of probate?
Regardless of the value of the estate, an application for grant of probate shall be made to the High Court in the state where the deceased resided or owns property. The application should be filed within 3 years, in the event of delay, the reason for delay should be explained to court.
Some of the supporting documents required include, the original copy of the will, death certificate and list of assets & liabilities.
The Court will set a hearing date and the Executor is required to attend. When the Court has ascertained the validity of the will, an order for grant of probate will be issued.
Finally grant of probate will be extracted from Court after payment is made and the necessary supporting documents have been filed in court.
Court does not issue original grant of probate therefore certified true copies of the grant are obtained from court.
How long does an application for grant of probate take?
An application for grant of probate is usually completed within 3 – 6 months.
Who pays the costs of applying for grant of probate?
The legal costs are normally paid out of the estate of the testator. Therefore, the applicant would be able to recoup the relevant expenses incurred from the estate.
Letters of Administration
What are letters of administration?
A grant of letters of administration is given by the High Court to a successful administrator giving him the power to administer the estate of the Deceased where there is no will.
what is the law and procedure for letters of administration?
The law and procedure applicable depends on whether the estate is classified as a small estate or non-small estate. This in turn depends on the value of the estate and whether it comprises of both movable and immovable property. A small estate is one that consists wholly or partly of immovable property not exceeding two million ringgit in total value.
who can be an administrator?
Section 30 of the Probate and Administration Act 1959 describes the beneficiary / next of kin of the Deceased to be the most suitable candidate to be appointed as the administrator of the intestate estate. Where there are multiple beneficiaries, the best suited to be appointed as administrator may be determined in accordance to their priority of entitlement to the estate.
Where there are multiple beneficiaries and it is mutually agreed that one of them shall be appointed as administrator, the other beneficiaries shall renounce their rights to act as administrator – this does not affect their entitlement to the estate as beneficiaries.
Which administrative body has the appropriate jurisdiction?
For estates consisting wholly of movable property not exceeding RM600,000 in total value, the Public Trust Corporation (Amanah Raya Berhad) has the jurisdiction to perform summary administration of the estate according to the Public Trust Corporation Act 1955.
For small estates not exceeding RM2 million in value – Estate Distribution Unit, Department of Director General of Land and Mines (JPKTG) will have jurisdiction according to the Small Estates (Distribution) Act 1955.
For non-small estates (total value exceeding RM2 million), administration is by the High Court and is governed by the Probate and Administration Act 1959 and the Rules of Court 2012 and the Distribution Act 1958.
How long does an application for letters of administration take?
As this varies from case to case, we are only able to provide a rough estimate. Factors such as the nature of the assets, whether any dispute arises, number of other cases that are to be heard, etc. affect the duration involved.
For grant of letters of administration by the High Court, this may take 4 – 6 months or longer.
For letters of administration by the Distribution Unit, this may take 6 – 9 months or longer
For summary administration by Amanah Raya Berhad, this may take upwards of 3 months
Who pays the costs of applying for letters of administration?
The legal costs are normally paid out of the estate of the deceased. Therefore, the applicant would be able to recoup the relevant expenses incurred from the estate.