When preparing a Will, one of the most important decisions you will have to make is:
Who should I appoint as my executor?
Many people focus primarily on who should inherit their property, money and other assets. However, naming the right executor is equally important.
Your executor is the person responsible for carrying out the instructions in your Will and administering your estate after your death.
This may involve applying for a Grant of Probate, identifying your assets, settling your debts, dealing with banks and government authorities, transferring properties and ultimately distributing your estate to your beneficiaries.
The role can therefore involve considerably more than simply reading the Will and handing assets to family members.
This article explains what an executor does in Malaysia and what you should consider when choosing one.
Note: This article generally discusses the administration of a non-Muslim estate in Peninsular Malaysia. Different laws and procedures may apply depending on the deceased’s religion, domicile, location of assets and circumstances.
Table of Contents
What Is an Executor?
An executor is a person appointed under a Will to administer the deceased person’s estate.
The person making the Will is known as the testator.
For example, a Will may state that:
“I appoint my wife as the Executor and Trustee of this my Will.”
The executor’s role only arises upon the testator’s death.
Until then, the testator remains free to deal with his or her own property and may generally change or replace the Will.
After the testator dies, the executor will generally be responsible for taking the necessary steps to administer the estate in accordance with the Will and applicable law.
Where the deceased leaves a valid Will, the executor named in the Will may apply to the High Court for a Grant of Probate.
What Is a Grant of Probate?
A Grant of Probate is a court document recognising the executor’s authority to administer the deceased person’s estate pursuant to the Will.
In practical terms, producing the Will alone may not be sufficient to deal with many of the deceased’s assets.
Banks, land offices and other institutions may require the Grant of Probate before allowing the executor to deal with property belonging to the estate.
For example, if the deceased owned a property in his or her sole name, the executor may need the Grant of Probate before the necessary transmission or transfer of that property can be registered.
Likewise, a bank may require the relevant probate documentation before releasing money belonging to the deceased’s estate.
Read more: Grant of Probate vs Letters of Administration in Malaysia: What Is the Difference?
What Does an Executor Actually Have to Do?
Every estate is different.
A straightforward estate involving one property and several bank accounts may be comparatively simple.
An estate involving businesses, numerous properties, foreign assets, trusts or disputes amongst beneficiaries may require considerably more work.
Generally, however, an executor’s responsibilities can be understood in several stages.
1. Locate the Original Will
One of the first tasks after the testator’s death is to locate the original Will.
The executor should establish:
- where the original Will is kept;
- whether it appears to be the deceased’s latest Will;
- whether there are any later codicils or testamentary documents; and
- who has been appointed as executor.
The original document can be important when applying for probate.
This is one reason why a person making a Will should ensure that the executor or a trusted family member knows where the original Will is stored.
That does not necessarily mean the executor needs to know the contents of the Will during the testator’s lifetime. However, the Will should be capable of being located when it is needed.
2. Identify the Deceased’s Assets
The executor will need to determine what assets form part of the estate.
These may include:
- houses, condominiums and land;
- bank accounts and fixed deposits;
- shares and investments;
- motor vehicles;
- business interests;
- jewellery and valuable personal belongings;
- monies owing to the deceased; and
- other property owned by the deceased.
The executor may therefore need to review documents, contact financial institutions and make enquiries to establish what the deceased owned.
This process can be much easier where the deceased maintained an organised record of his or her assets.
3. Identify the Deceased’s Liabilities
Administering an estate is not simply a matter of identifying assets.
The executor should also identify liabilities which may need to be settled from the estate.
These may include:
- housing loans;
- personal loans;
- credit card balances;
- income tax liabilities;
- outstanding bills;
- sums owed to third parties; and
- expenses associated with administering the estate.
The beneficiaries generally receive the net estate after the estate’s proper liabilities and administration expenses have been dealt with.
Accordingly, an executor should not simply distribute all available cash to the beneficiaries immediately after the deceased’s death.
4. Apply for the Grant of Probate
Once the necessary information and documents have been assembled, an application may be made to the High Court for the Grant of Probate.
The documents required will depend on the particular estate and circumstances.
They may include documents relating to:
- the deceased;
- the death certificate;
- the original Will;
- the executor;
- the beneficiaries;
- the assets and liabilities of the estate; and
- other matters relevant to the application.
Once the Grant of Probate has been issued, the executor can generally proceed with the administration of the estate using the authority conferred by the grant.
5. Collect and Preserve the Estate Assets
The executor has a responsibility to take control of the estate and preserve its assets pending administration and distribution.
Depending on the estate, this may involve:
- notifying banks of the death;
- collecting money belonging to the estate;
- maintaining insurance over property;
- ensuring that properties are secured;
- collecting rental income;
- dealing with tenants;
- safeguarding valuables;
- obtaining information concerning investments; and
- taking steps to prevent estate assets from being lost or improperly dealt with.
The executor does not become the beneficial owner of the estate simply because he or she has been appointed executor.
The executor is administering the estate for the purposes set out in the Will.
6. Pay the Estate’s Debts and Expenses
Before distributing the estate, the executor should ensure that proper debts, liabilities and administration expenses have been dealt with.
This may include:
- funeral expenses;
- legal expenses associated with obtaining probate;
- outstanding liabilities;
- taxes;
- property-related expenses; and
- other expenses properly incurred in administering the estate.
The precise order and manner in which estate liabilities should be dealt with may depend on the circumstances.
This is another reason why an executor should avoid prematurely distributing the entire estate to beneficiaries.
Once money or property has been transferred away, recovering it later to meet an estate liability may be difficult.
7. Deal With the Deceased’s Property
Where the deceased owned land, a house, condominium or other real property, the executor may need to take further steps after obtaining probate.
Depending on the Will, the property may need to be:
- transmitted into the executor’s capacity as personal representative;
- transferred to a beneficiary;
- sold and the proceeds distributed;
- retained temporarily under a trust; or
- otherwise dealt with in accordance with the Will.
A Grant of Probate is particularly important where dealings with registered land are required.
The exact procedure will depend on the nature of the property and what the Will directs.
8. Sell Assets Where Necessary
An executor does not always distribute every asset in its existing form.
Sometimes it will be necessary or appropriate to sell an estate asset.
For example, the Will may state that a property should be sold and the net proceeds divided amongst the deceased’s children.
Alternatively, a sale may be necessary to obtain sufficient cash to settle estate liabilities.
Depending on the wording of the Will, the nature of the asset and applicable law, the executor may have powers to deal with or sell estate property.
Where substantial property is involved, the executor should obtain proper advice before proceeding.
9. Distribute the Estate According to the Will
Once the administration requirements have been satisfied, the executor must distribute the estate according to the deceased’s Will.
For example, the Will may provide that:
- a property is transferred to the deceased’s spouse;
- RM50,000 is paid to a particular beneficiary;
- jewellery is given to a daughter;
- the remaining estate is divided equally amongst three children; or
- a child’s inheritance is held on trust until a specified age.
The executor cannot simply substitute his or her own preferred distribution.
The executor’s role is to implement the deceased’s testamentary wishes, subject to applicable law.
Example: What an Executor May Have to Do
Suppose Mr Tan passes away leaving:
- a house in Kuala Lumpur;
- a condominium which is rented out;
- three bank accounts;
- shares;
- a motor vehicle; and
- several personal liabilities.
His Will appoints his daughter as executor and provides that the estate is ultimately to be divided amongst his three children.
His executor may need to:
- locate the original Will and death certificate;
- identify all estate assets and liabilities;
- obtain information from banks and other institutions;
- apply to the High Court for the Grant of Probate;
- preserve and insure the properties;
- collect rent from the condominium;
- settle legitimate estate liabilities;
- deal with the transmission or sale of the properties;
- collect or transfer the financial assets;
- account for estate monies and expenses; and
- distribute the remaining estate amongst the three beneficiaries in accordance with the Will.
If the Will also provides that one child’s inheritance is to be held until age 25, the trustee’s responsibilities may continue beyond the initial estate administration.
This illustrates why the choice of executor should not be treated as a mere formality.
Choosing the Right Executor Is an Important Part of Making a Will
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.
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.
Read more:
How to Write a Will in Malaysia: Step-by-Step Guide
Importance of Will Writing in Malaysia | Why You Should Have a Will
What to Do When a Parent or Family Member Passes Away With a Will in Malaysia
What Happens If You Die Without a Will in Malaysia? | Intestacy Guide