Grant of Probate in Malaysia
When a person passes away leaving a valid Will and appointing an executor, the executor will generally need to obtain a Grant of Probate before administering the deceased's estate. TEH & YU assists executors with probate applications in the High Court of Malaya and the subsequent administration of estate assets.
What Is a Grant of Probate?
A Grant of Probate is a legal document issued by the High Court confirming the authority of the executor named in a deceased person's Will to administer the estate.
The Will sets out the deceased person's wishes. The Grant of Probate gives the executor the recognised legal authority to carry those wishes into effect and deal with the assets forming part of the estate.
Once probate has been obtained, the executor may proceed with the appropriate administration of assets such as property, bank accounts, investments and other estate assets.
In Simple Terms
Will = sets out what the deceased wanted.
Executor = person appointed to carry out those wishes.
Grant of Probate = Court recognition of the executor's authority to administer the estate.
When Is a Grant of Probate Required?
A probate application generally arises where the deceased left a valid Will and appointed one or more executors to administer the estate.
Valid Will
The deceased left a Will setting out how the estate should be administered and distributed.
Executor Appointed
The Will appoints an executor or executors who are willing and able to administer the estate.
Estate Assets
The deceased left property, bank accounts, investments, shares or other assets requiring administration.
Authority Is Needed
Banks, land offices, companies or other institutions may require the executor to produce the Grant before assets can be dealt with.
Who Applies for the Grant of Probate?
The application is ordinarily made by the executor or executors appointed under the deceased's Will.
An executor is responsible for administering the estate, identifying and collecting estate assets, settling appropriate liabilities and ultimately distributing the estate according to the Will.
Where more than one executor has been appointed, the circumstances of the particular Will and the executors should be considered when preparing the application.
What If the Executor Does Not Want to Act?
Being named as executor does not necessarily mean that the person must proceed with the administration personally in every circumstance.
Malaysian probate law provides mechanisms dealing with an executor who renounces, dies before obtaining probate, fails to appear to a citation or is otherwise unable to act.
Depending on the circumstances, another form of grant, including Letters of Administration with the Will annexed, may need to be considered.
Documents Commonly Required
The documents required depend on the particular estate. Common documents and information may include:
- Original Will of the deceased
- Death certificate
- Identity documents of the executor
- Identity details of beneficiaries
- Details of the deceased's assets
- Property titles or property documents
- Bank and investment information
- Information concerning liabilities of the estate
- Relevant marriage or birth certificates where required
Have the Original Will?
Keep the original Will safely and avoid writing on, altering, removing pages from or otherwise interfering with the document.
If you cannot locate the original Will but believe that a Will existed, obtain legal advice before assuming that the estate must automatically be treated as an intestate estate.
Grant of Probate Process in Malaysia
The precise requirements depend on the estate, but an uncontested probate application will generally involve the following stages.
Review the Will and Estate
We review the original Will, executor appointment, deceased's details, beneficiaries and known estate assets.
Gather Estate Information
Information concerning the deceased's property, financial assets and other relevant estate matters is gathered for the application.
Prepare the Probate Papers
The relevant originating process, affidavit and supporting documents are prepared for filing with the High Court of Malaya.
File the High Court Application
The probate application is filed and the Court's procedural requirements are attended to.
Probate Hearing
Where a hearing is fixed, the executor attends to the necessary Court process and any questions or further requirements raised by the Court are addressed.
Extraction of the Grant
Once the application is allowed and the relevant requirements have been satisfied, the Grant of Probate is extracted from the Court.
Administer the Estate
The executor can then proceed with the appropriate administration, collection, transfer and distribution of estate assets.
What Happens After Probate Is Obtained?
Obtaining the Grant is an important step, but it does not necessarily complete the administration of the estate.
Bank Accounts
The executor may use the Grant to deal with financial institutions and collect relevant estate funds.
Property
Property registered in the deceased's name may require further transmission or transfer documentation.
Liabilities
Relevant estate debts, expenses and liabilities must be appropriately dealt with before final distribution.
Distribution
The remaining estate is ultimately administered and distributed in accordance with the Will, subject to law.
What Happens to the Deceased's Property?
A house, condominium, land or other property registered in the deceased's name does not automatically become registered in the beneficiary's name merely because the beneficiary is named in the Will.
After the necessary estate authority has been obtained, further land and conveyancing procedures may be required to deal with the deceased's interest in the property.
Depending on the Will and administration of the estate, the property may ultimately be transferred to a beneficiary or otherwise dealt with in accordance with the executor's duties and the terms of the Will.
Probate + Conveyancing
TEH & YU handles both probate and estate administration and conveyancing matters.
Where an estate includes Malaysian property, we can assist with the probate application and the subsequent property-related work where appropriate.
Learn more about Transfer of Deceased Property in Malaysia →
Grant of Probate vs Letters of Administration
These terms are sometimes used interchangeably by families, but they refer to different forms of estate representation.
Grant of Probate
Generally applicable where the deceased left a valid Will and an executor named in the Will is able and willing to act.
Letters of Administration
Generally relevant where a deceased died without a valid Will or where the circumstances require an administrator rather than an executor to obtain authority to administer the estate.
Common Probate Issues
Some estates require additional consideration before a standard probate application can proceed.
Original Will Cannot Be Found
Further evidence and a different probate procedure may be required where the original Will is lost or cannot be produced.
Executor Has Passed Away
The appropriate next step depends on whether probate was previously obtained and whether administration of the estate had been completed.
Executor Renounces
The probate legislation contains procedures addressing an appointed executor who does not wish to take the grant.
Executor Lives Overseas
Special considerations may arise where the appointed executor is outside Malaysia. The circumstances should be reviewed before deciding on the appropriate application.
How TEH & YU Can Assist
Our probate practice covers both obtaining the Grant and the practical estate administration work that may follow.
Probate Application
Preparation and filing of the relevant High Court probate application and supporting documents.
Court Attendance
Attending to the probate hearing and procedural requirements arising from the application.
Estate Administration
Assistance with subsequent steps involving estate assets following the extraction of the Grant.
Estate Property
Assistance with relevant property transmission, transfer and conveyancing matters where the estate includes property.
Related Probate & Estate Services
Frequently Asked Questions
What is a Grant of Probate in Malaysia?
A Grant of Probate is the Court document confirming the executor's authority to administer the estate of a deceased person in accordance with the deceased's valid Will.
Who can apply for a Grant of Probate?
The application is ordinarily made by the executor or executors appointed in the deceased's Will, subject to the circumstances of the estate and the executor's ability and willingness to act.
Do I need probate if there is already a Will?
A Will identifies the deceased's wishes and appoints the executor, but institutions dealing with significant estate assets may require the executor to obtain a Grant of Probate before recognising the executor's authority to deal with those assets.
What if there are two executors in the Will?
Where more than one executor has been appointed, the Will and the circumstances of each executor should be reviewed before the application is prepared.
What if an executor refuses to act?
An executor may in appropriate circumstances renounce the right to representation. Where no appointed executor ultimately obtains probate, another form of representation, potentially including administration with the Will annexed, may need to be considered.
What if the original Will is lost?
A lost original Will does not necessarily mean that the estate must automatically be treated as intestate. Malaysian probate legislation provides for limited probate of a copy, draft or even the contents of a Will in certain circumstances where the required evidence can be established. Legal advice should be obtained before proceeding.
Is there a time limit to apply for probate?
An application may still be possible even where probate was not applied for immediately following the death. However, a substantial delay may need to be explained and practical issues may arise depending on what has happened to the estate in the meantime.
How long does probate take in Malaysia?
The timeframe depends on the Court's schedule, completeness of the documents, the estate and whether any additional issues arise. We can provide a practical indication of the expected process after reviewing the relevant documents.
What happens to property after probate?
Obtaining the Grant does not automatically register the deceased's property in the beneficiary's name. Further estate and land registration procedures may be required to transmit or transfer the deceased's interest in the property.
Can TEH & YU also handle the property transfer after probate?
Yes. Our practice covers both probate and estate administration and conveyancing, allowing us to assist with the subsequent property-related work where appropriate.
Need to Apply for a Grant of Probate?
If you are the executor of a Will and need assistance administering an estate in Malaysia, send us brief details of the deceased, the Will and the known estate assets. We can advise on the appropriate probate process and next steps.