When a person dies without leaving a valid will, the estate is described as intestate.
For non-Muslim estates to which the Distribution Act 1958 applies, the law determines how the intestate estate is distributed among surviving relatives.
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What Does “Intestate” Mean?
Intestacy may arise where no will was made, the purported will is invalid, or the will does not effectively dispose of the whole estate.
The last situation is known as partial intestacy.
Does the Distribution Act 1958 Apply to Everyone?
No. The Distribution Act 1958 expressly does not apply to the estate of a person professing the Muslim religion.
Its territorial and personal application should also be considered in the context of the particular estate.
Who Inherits?
The statutory shares depend on which close relatives survive the deceased.
Spouse, Parents and Issue
Generally:
- 1/4 to the spouse
- 1/4 to the parent or parents
- 1/2 to the issue
Spouse and Issue, No Parent
Generally:
- 1/3 to the spouse
- 2/3 to the issue
Parents and Issue, No Spouse
Generally:
- 1/3 to the parent or parents
- 2/3 to the issue
Spouse and Parents, No Issue
Generally:
- 1/2 to the spouse
- 1/2 to the parent or parents
Spouse Only
Where there is no surviving issue or parent, the spouse generally takes the whole estate.
Issue Only
Where there is no surviving spouse or parent, the issue generally takes the whole estate according to the statutory rules.
Parents Only
Where there is no surviving spouse or issue, the parent or parents generally take the whole estate.
The Act also provides for more remote relatives where none of these immediate classes survives.
The precise entitlement should be checked against the statutory provisions and the deceased’s family tree.
What Happens Without an Executor?
Where there is no will, there is no executor appointed by the deceased.
An eligible person must instead obtain the appropriate authority to administer the estate, commonly through a Grant of Letters of Administration, depending on the nature and value of the estate and the applicable administration route.
What Are Letters of Administration?
Letters of Administration authorise the administrator to deal with the estate.
The administrator may need to identify and collect assets, settle liabilities, deal with banks and land offices, sell or transfer property, account for the estate and distribute it to the lawful beneficiaries.
The administrator does not have freedom to distribute the estate according to personal preference.
Are Sureties Required?
In a High Court application for Letters of Administration, administration bonds and sureties can become relevant, subject to the applicable probate law and any order dispensing with or modifying the requirement.
The practical requirements depend on the estate and the relief sought.
Is Intestacy Always Slower?
An intestate estate may involve additional steps such as identifying the proper administrator, obtaining consents or renunciations, identifying statutory beneficiaries and dealing with security or surety requirements where applicable.
What If the Family Wants a Different Distribution?
A private family agreement does not automatically alter the legal entitlements under intestacy.
Any proposed variation, renunciation, transfer or family arrangement should be considered and documented properly.
What If the Deceased Had a Will but Forgot Some Assets?
This may create partial intestacy if omitted assets are not otherwise captured by the wording of the will.
A properly drafted residuary clause can help avoid this problem.
Read: How to Write a Will in Malaysia
Frequently Asked Questions
Does the spouse automatically receive everything?
Not if other relevant classes, such as issue or parents, survive. The statutory shares depend on the family situation.
Can the administrator choose who receives the assets?
No. The administrator must administer and distribute the estate according to law.
What if there are no spouse, parents or children?
The Act provides for other relatives in a statutory order.
What is partial intestacy?
It occurs where only part of the estate is effectively disposed of by will, leaving the remainder to pass under the applicable intestacy rules.
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This article is provided for general informational purposes only and does not constitute legal advice.