When a person passes away, his or her assets do not automatically pass to the beneficiaries or family members.
Someone will generally need legal authority to administer the deceased’s estate, collect the assets, settle liabilities and eventually distribute the remaining assets to the persons entitled to them.
Two terms commonly encountered in estate matters in Malaysia are:
- Grant of Probate, commonly referred to as Probate; and
- Letters of Administration, commonly referred to as LA.
Although both are forms of authority to administer a deceased person’s estate, they apply in different circumstances.
A simple way to remember the distinction is:
Valid Will + executor able to act → Grant of Probate
No Will → Letters of Administration
However, there are exceptions to this general rule, which we explain below.
Note: This article focuses primarily on non-Muslim estates in Peninsular Malaysia. Different laws and procedures may apply to Muslim estates and estates involving other jurisdictions.
Table of Contents
What Is a Grant of Probate?
A Grant of Probate is a grant issued by the High Court authorising the executor named in a deceased person’s Will to administer the deceased’s estate.
Under the Probate and Administration Act 1959, probate may be granted to an executor appointed by a Will.
For example, suppose a person makes a Will stating:
“I appoint my wife as the executor of my Will.”
After the person’s death, the wife may apply to the High Court for a Grant of Probate.
Once Probate has been granted, the executor may generally proceed to deal with the estate, including collecting assets, dealing with financial institutions, settling liabilities and transferring or distributing the estate in accordance with the Will.
Obtaining Probate does not mean that all assets are automatically transferred to the beneficiaries. Further procedures may still be required depending on the particular asset.
For example, separate steps may be required for:
- bank accounts;
- landed properties;
- shares;
- motor vehicles;
- investments; and
- other assets registered in the deceased’s name.
What Are Letters of Administration?
Letters of Administration are generally required when a person dies without leaving a valid Will.
A person who dies without a Will is commonly described as having died intestate.
Since there is no executor appointed under a Will, an appropriate person must apply for authority to become the administrator of the deceased’s estate.
The administrator will then be responsible for administering the estate, including identifying and collecting the assets, settling the deceased’s liabilities and distributing the remaining estate to the persons legally entitled to it.
For a non-Muslim intestate estate falling within the applicable scope of the Distribution Act 1958, the beneficiaries and their respective shares are generally determined by the statutory rules of intestate succession rather than by the personal wishes of the deceased. Section 6 of the Distribution Act 1958 sets out the applicable distribution among surviving spouses, parents, children or other relatives depending on who survives the deceased.
Grant of Probate vs Letters of Administration: Quick Comparison
| Grant of Probate | Letters of Administration | |
|---|---|---|
| Usually applies when | Deceased left a valid Will | Deceased died without a Will |
| Person administering estate | Executor | Administrator |
| Who selects that person? | Generally appointed by the deceased in the Will | Appointed through the relevant estate administration process |
| Distribution of estate | Generally according to the Will | Generally according to intestacy law |
| Administration bond / sureties | Generally not required in an ordinary probate application | May be required, subject to the Court’s powers and applicable exceptions |
| Main High Court document obtained | Grant of Probate | Letters of Administration |
What Is the Difference Between an Executor and an Administrator?
The terms are sometimes used interchangeably in everyday conversation, but legally they are different.
Executor
An executor is a person appointed by the deceased in his or her Will to carry out the instructions contained in the Will.
The deceased therefore determines who should administer the estate.
Administrator
An administrator is a person who receives legal authority to administer an estate through a grant of Letters of Administration.
This most commonly arises where the deceased did not leave a Will and therefore did not appoint an executor.
Both executors and administrators are commonly referred to as personal representatives of the deceased’s estate.
What Happens to the Estate If There Is a Will?
Where there is a valid Will and Probate is obtained, the executor generally administers and distributes the estate in accordance with the terms of the Will.
The executor does not simply distribute all the assets immediately after obtaining Probate.
The administration may involve:
- identifying the deceased’s assets;
- collecting or realising the assets;
- identifying outstanding liabilities;
- settling debts and administration expenses;
- dealing with property, bank accounts, shares and other assets; and
- distributing the remaining estate to the beneficiaries in accordance with the Will.
The exact process depends on the nature of the estate. Learn more here: What to Do When a Parent or Family Member Passes Away With a Will in Malaysia
What Happens If There Is No Will?
When a non-Muslim dies intestate, the deceased does not get to specify through a Will who should inherit the estate.
Instead, the estate will generally be distributed in accordance with the applicable intestacy law.
The exact entitlement should always be determined based on the deceased’s family circumstances.
Read more: What Happens If You Die Without a Will in Malaysia? | Intestacy Guide
Are Two Sureties Required for Letters of Administration?
This is another important difference between Probate and Letters of Administration.
The Probate and Administration Act 1959 provides for security for the due administration of an estate in cases of administration.
The security would ordinarily involve an administration bond by the administrator and two sureties. However, the Court has powers in appropriate circumstances to increase or decrease the number of sureties, dispense with sureties or reduce the amount of the bond. The Act also contains certain situations in which security may not be required.
Accordingly, it should not simply be assumed that every Letters of Administration application will necessarily require two sureties in practice.
Where suitable sureties are unavailable, legal advice should be obtained on whether an application may be made for the relevant requirement to be dispensed with.
This additional issue is one reason why an application for Letters of Administration can sometimes involve more steps than an ordinary Grant of Probate application.
Is Probate Always Faster Than Letters of Administration?
Not necessarily, although a straightforward Probate application can often be procedurally simpler.
Where a valid Will exists, important matters have already been determined by the deceased, including:
- who should act as executor; and
- who should receive the estate.
By comparison, an intestate estate may require consideration of:
- who is entitled to apply as administrator;
- the beneficiaries entitled under the applicable law;
- consent or renunciation from other persons where relevant;
- administration bond and surety requirements;
- applications relating to sureties where necessary; and
- the eventual distribution of the estate.
However, the time required for either application depends on the facts of the particular estate, the available documents, the number of beneficiaries, the nature of the assets and whether any disputes or complications arise.
What If There Is a Will but the Executor Cannot Act?
This is where the simple rule of “Will means Probate” has an important exception.
There may be a valid Will, but the executor named in the Will may:
- have passed away;
- renounce the right to act;
- be unable to act;
- be legally incapable of acting; or
- otherwise fail to obtain Probate.
In appropriate circumstances, another person may need to apply for Letters of Administration with the Will annexed.
The Probate and Administration Act 1959 expressly recognises administration both with and without a Will annexed.
The Will does not necessarily disappear merely because the executor cannot act. The appropriate procedure depends on why the appointed executor is unable or unwilling to obtain Probate.
Example 1: Deceased Left a Will and Named His Wife as Executor
Mr A made a valid Will appointing his wife as executor and leaving his estate to his wife and children.
After Mr A passes away, his wife is willing and able to act.
The appropriate application would ordinarily be an application for a Grant of Probate.
Once Probate is obtained, she can proceed with the administration and distribution of the estate in accordance with the Will.
Example 2: Deceased Did Not Leave a Will
Mr B passes away leaving a wife, children, a house, bank accounts and investments, but he never made a Will.
There is therefore no executor.
An appropriate person may need to apply for authority to administer Mr B’s estate.
If the matter proceeds through the High Court administration route, the relevant grant would ordinarily be Letters of Administration.
The beneficiaries’ entitlement would not be determined according to what the family believes Mr B would have wanted. Instead, the distribution of an intestate estate is governed by the applicable law. Read more: What Happens If You Die Without a Will in Malaysia?
Example 3: Deceased Left a Will but the Sole Executor Has Passed Away
Ms C made a Will appointing her brother as the sole executor.
Her brother subsequently passed away before Ms C.
When Ms C later passes away, there is still a Will, but the named executor is no longer available to obtain Probate.
Depending on the terms of the Will and the circumstances, an appropriate person may have to apply for Letters of Administration with the Will annexed instead.
This illustrates why it is not entirely accurate to say that every estate involving a Will will necessarily result in a Grant of Probate.
Does Every Estate Without a Will Require High Court Letters of Administration?
No.
The appropriate estate administration procedure depends on matters such as:
- whether the deceased left a Will;
- the type of assets involved;
- the total value of the estate;
- whether the estate contains movable or immovable property; and
- the applicable statutory regime.
For example, a non-Muslim intestate estate may fall within the small estate regime where the relevant statutory conditions are met and the total value of the estate does not exceed the prescribed value at the date of application.
Accordingly, the first question should not necessarily be, “How do I apply for Letters of Administration?”
The better question is:
“Which estate administration procedure applies to this particular estate?”
Is a Grant of Probate or Letters of Administration the Same as Distributing the Estate?
No.
Obtaining the Grant is an important step, but it is not necessarily the end of the estate administration.
After the Grant is obtained, the personal representative may still need to deal separately with different institutions and assets.
For example:
Property
The personal representative may need to deal with the relevant land office or registry before the property can ultimately be transferred, transmitted, sold or otherwise dealt with.
Bank Accounts
Banks will ordinarily require the necessary estate documents before releasing monies held in the deceased’s name.
Shares and Investments
Different financial institutions, brokers and companies may have their own requirements for dealing with investments held by a deceased person.
Motor Vehicles
Separate procedures may also be required to transfer or otherwise deal with vehicles registered in the deceased’s name.
Estate administration therefore involves more than merely obtaining a Court Order.
Frequently Asked Questions
1. What is the main difference between Probate and Letters of Administration?
Probate is generally obtained where the deceased left a valid Will and an executor appointed under the Will is able to act.
Letters of Administration are generally obtained where the deceased died without a Will and an administrator must be appointed to administer the estate.
2. Which is better, Probate or Letters of Administration?
They are not alternatives that a family can freely choose between.
The correct procedure depends primarily on whether there is a valid Will, whether an executor has been appointed and is able to act, and the circumstances of the deceased’s estate.
3. Can a beneficiary also be an executor?
Yes. It is common for an executor named in a Will to also be one of the beneficiaries of the estate.
4. Can a beneficiary become the administrator?
Potentially, yes. A person with an interest in the estate may be entitled to seek Letters of Administration, although the appropriate applicant depends on the circumstances and applicable legal rules.
5. If the deceased’s spouse is the only beneficiary, is Letters of Administration still necessary?
Being entitled to inherit an estate does not by itself give a beneficiary legal authority to administer assets registered in the deceased’s name.
The appropriate estate administration procedure will still need to be determined.
6. Does having a Will mean Probate is automatic?
No.
A Grant of Probate still has to be applied for. The existence of a Will does not by itself give financial institutions or other third parties sufficient authority to transfer all the deceased’s assets to the beneficiaries.
7. What if the original Will cannot be found?
The situation should be examined carefully before any estate application is made. Issues concerning a missing original Will can affect whether the estate should proceed as a testate or intestate estate and may require further evidence or Court directions.
Conclusion
The distinction between a Grant of Probate and Letters of Administration is important because they represent different routes for administering a deceased person’s estate.
In general:
If the deceased left a valid Will and the executor can act, the executor may apply for a Grant of Probate.
If the deceased died without a Will, an appropriate person may need authority to act as administrator, which may involve Letters of Administration or another applicable estate administration procedure.
There are also situations where a deceased leaves a valid Will but Probate cannot be obtained by the appointed executor. In such cases, Letters of Administration with the Will annexed may be relevant.
Before commencing an estate application, it is advisable to identify the Will, beneficiaries, assets and liabilities of the deceased and determine the appropriate procedure based on the particular circumstances of the estate.
Disclamier: Each estate is different, and the correct procedure may depend on the value and nature of the assets, the deceased’s family circumstances and whether any dispute or complication has arisen.
Executor of a Will in Malaysia: What Does an Executor Actually Do?
What Happens If You Die Without a Will in Malaysia? | Intestacy Guide