Appointing an executor for your Will? Here are 16 important things to know about an executor’s role, responsibilities and appointment in Malaysia.
Table of Contents
1. Is an Executor the Same as a Beneficiary?
No.
The two roles are different.
An executor administers the estate.
A beneficiary receives a benefit under the Will.
However, the same person may potentially occupy both roles.
For example, a husband may appoint his wife as executor and also leave the estate to her.
Likewise, a parent may appoint an adult child as executor while also giving that child a share of the estate.
The fact that someone is entrusted with administering the estate does not, by itself, mean that the person owns the estate assets personally.
The person’s beneficial entitlement depends on what the Will actually gives to him or her.
2. Does the Executor Get Paid?
Not necessarily.
Being appointed executor does not automatically mean that the executor is entitled to take a percentage of the estate as payment.
However, an executor may generally incur legitimate expenses in administering the estate.
Depending on the circumstances and the terms of the Will, professional executors or trust corporations may operate under different fee arrangements.
If a testator intends for a particular executor to receive remuneration for undertaking the role, this should be considered when the Will is prepared rather than assumed later.
3. Can I Appoint More Than One Executor?
Yes, a Will may appoint more than one executor.
Some people prefer to appoint two persons so that responsibility for the administration does not fall entirely on one individual.
For example:
“I appoint my wife and my eldest son as the Executors and Trustees of my Will.”
Having multiple executors can provide useful checks and continuity.
However, it can also create practical difficulties if the executors:
- live in different countries;
- have a poor relationship;
- disagree about how the estate should be administered;
- are difficult to contact; or
- have very different approaches to decision-making.
More executors do not automatically mean better estate administration.
The individuals should be capable of working together.
4. Should I Appoint a Substitute Executor?
In most cases, this is sensible.
Suppose you appoint your spouse as your sole executor.
Twenty years later, your spouse may:
- have passed away before you;
- be seriously ill;
- lack capacity;
- be living overseas;
- be unwilling to act; or
- otherwise be unable to administer your estate.
A Will can therefore appoint a substitute executor.
For example:
First choice: spouse.
If spouse cannot act: adult child.
This provides an alternative without requiring the estate to deal with the absence of an available executor named in the Will.
5. What If the Executor Does Not Want to Act?
A person who has been named as executor is not necessarily forced to undertake the role.
There are legal procedures by which an executor may renounce probate in appropriate circumstances.
The consequences will depend on matters such as:
- whether another executor has been appointed;
- whether a substitute executor is named;
- whether the executor has already taken steps in the administration; and
- the terms of the Will.
This is another reason why a testator should consider appointing at least one suitable substitute executor.
6. What Happens If the Executor Dies Before Me?
If your sole executor dies before you and your Will contains no substitute appointment, this does not necessarily mean that your Will itself becomes invalid.
However, it may make the eventual estate administration more complicated.
Rather than leaving this issue to be resolved after death, it is generally preferable to review your Will whenever an executor dies or becomes unsuitable.
A Will should therefore be reviewed periodically rather than treated as a document that can be signed once and forgotten forever.
7. What Happens If the Executor Dies During the Administration?
The position can become more complicated if an executor dies after the testator but before completing the administration of the estate.
The next steps will depend on matters such as:
- whether there were joint executors;
- whether probate had already been granted;
- whether another executor remains capable of acting;
- the terms of the Will; and
- the stage reached in the estate administration.
Legal advice should generally be obtained where this occurs because further court procedures may be necessary before the remaining estate can be administered.
8. What If Two Executors Disagree?
This is one potential disadvantage of appointing multiple executors.
For example, two siblings appointed as executors may disagree about:
- whether a property should be sold;
- the appropriate sale price;
- whether repairs should be carried out;
- the payment of expenses;
- the interpretation of the Will;
- the handling of personal belongings; or
- the timing of distributions.
Minor disagreements can sometimes be resolved with professional advice.
Serious disagreements may delay the administration and, in some cases, result in court proceedings.
When selecting executors, a testator should therefore consider not only whether each person is trustworthy individually, but whether the executors can realistically work together.
9. Can an Executor Change What the Will Says?
Generally, the executor’s role is to carry out the Will, not rewrite it.
An executor should not decide:
“I think the deceased’s distribution is unfair, so I will divide the estate differently.”
If the Will gives 70% to one beneficiary and 30% to another, the executor cannot ordinarily change that to 50% each merely because the executor considers that result fairer.
Questions can arise where beneficiaries themselves agree to alternative arrangements or where court intervention is required, but these are separate legal issues and should not be treated as an executor having a general power to disregard the Will.
10. Can an Executor Use Estate Money for Himself?
An executor should not treat estate property as his or her personal property.
For example, an executor should not simply withdraw estate money and use it for personal expenses unrelated to the administration.
The executor holds an important fiduciary and administrative position and is expected to deal with the estate for proper estate purposes.
Proper administration expenses are different.
For example, money may legitimately need to be spent on matters such as:
- legal fees;
- valuation fees;
- property maintenance;
- insurance;
- taxes;
- land-related expenses; and
- other reasonable costs incurred in administering the estate.
Proper records should be maintained so that transactions involving estate funds can be accounted for.
11. Can an Executor Be Held Responsible for Mishandling an Estate?
Potentially, yes.
Appointment as executor carries responsibilities.
Problems can arise where an executor, for example:
- misappropriates estate assets;
- distributes assets contrary to the Will;
- fails to account for estate money;
- unnecessarily causes loss to the estate;
- improperly favours one beneficiary;
- deals with estate property for personal benefit; or
- distributes the estate without properly dealing with liabilities.
Beneficiaries who believe that an executor has failed to administer the estate properly may potentially seek legal remedies.
The precise remedy will depend on the nature and seriousness of the conduct.
The role of executor should therefore not be accepted casually.
12. How Long Does an Executor Take to Administer an Estate?
There is no single period that applies to every estate.
The time required depends on factors such as:
- the number and type of assets;
- whether properties have to be sold;
- how quickly financial institutions respond;
- whether there are foreign assets;
- whether the deceased’s records are complete;
- whether tax or other liabilities have to be resolved;
- whether trusts are involved;
- whether beneficiaries can be located;
- whether anyone challenges the Will; and
- whether disputes arise amongst beneficiaries or executors.
A straightforward uncontested estate may naturally be easier to administer than an estate involving numerous assets, businesses, overseas property and litigation.
Beneficiaries should therefore be cautious about assuming that the estate can be distributed immediately after probate is obtained.
Obtaining probate and completing the entire administration are not necessarily the same thing.
13. Who Should I Appoint as My Executor?
There is no single correct answer.
Common choices include:
- a spouse;
- an adult child;
- a sibling;
- another trusted relative;
- a trusted friend;
- a professional person; or
- a trust corporation.
The right person depends on your circumstances.
When deciding whom to appoint, consider whether the person is:
Trustworthy
The executor may be handling significant amounts of money and valuable property.
Responsible
Estate administration requires paperwork, communication and follow-up.
Organised
An executor may need to keep records of assets, expenses, payments and distributions.
Able to deal with beneficiaries
Family dynamics can sometimes be challenging after a death.
Likely to be available
Appointing someone much older than you or someone whose whereabouts are uncertain may create practical difficulties later.
Capable of dealing with the complexity of the estate
A person with one property and a few bank accounts may have different requirements from someone who owns multiple companies and properties in several countries.
14. Should My Eldest Child Automatically Be My Executor?
No.
There is generally no requirement that your eldest child must be appointed as executor.
Age or family seniority does not necessarily determine who is best suited to administer an estate.
For example, your younger child may be more organised, financially experienced and available to manage the process.
Alternatively, you may decide that your spouse and one child should act together.
The appointment should be based on suitability rather than simply family hierarchy.
15. Should I Tell Someone That I Have Appointed Them?
It is generally sensible to discuss the appointment with the intended executor.
This gives the person an opportunity to understand that he or she may eventually be responsible for administering the estate.
You may also want your executor to know practical matters such as:
- where the original Will is stored;
- where important property documents are kept;
- who your lawyer is;
- where basic information concerning your assets can be found; and
- whether there are any unusual arrangements in your estate plan.
You do not necessarily need to disclose every detail of your financial affairs during your lifetime.
However, making the executor’s eventual task unnecessarily difficult can delay administration later.
Executor and Trustee: Are They the Same Thing?
A Will often uses the expression:
“Executor and Trustee.”
Although the roles are related, they are not always identical.
The executor generally deals with administering the deceased’s estate.
A trustee may have continuing responsibilities after the initial administration has been completed.
For example, suppose a Will provides:
“My daughter’s share shall be held on trust until she reaches the age of 25.”
The executor may first administer the estate.
The trustee may then continue holding and managing the daughter’s inheritance until she reaches the specified age.
In many Wills, the same people are appointed to act as both executors and trustees for practical reasons.
However, the trust responsibilities may continue for many years after the ordinary estate administration has ended.
16. Choosing the Right Executor
A Will does more than state who should inherit your assets.
Someone must eventually take responsibility for putting those instructions into effect.
That person is your executor.
Depending on the estate, the executor may have to:
- obtain the Grant of Probate;
- identify and collect assets;
- safeguard estate property;
- settle debts and expenses;
- deal with banks and government authorities;
- manage or sell property;
- maintain proper records;
- administer trusts; and
- ultimately distribute the estate according to your Will.
For that reason, the person you appoint should be trustworthy, responsible and capable of dealing with the practical responsibilities involved.
It is also worth considering a substitute executor in case your first choice is unable or unwilling to act when the time comes.
A properly drafted Will should therefore address not only who receives your estate, but also who will be responsible for making sure your wishes are actually carried out.
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Disclaimer
This article is intended for general information only and does not constitute legal advice. The appropriate procedure for administering an estate depends on the Will, the deceased’s assets, family circumstances, applicable law and other relevant facts. Specific legal advice should be obtained for individual circumstances. Contact us to learn more.
Read more:
Importance of Will Writing in Malaysia | Why You Should Have a Will
How to Write a Will in Malaysia: Step-by-Step Guide
What Happens If You Die Without a Will in Malaysia? | Intestacy Guide
Executor of a Will in Malaysia: What Does an Executor Actually Do?
Grant of Probate vs Letters of Administration in Malaysia: What Is the Difference?
What to Do When a Parent or Family Member Passes Away With a Will in Malaysia