Losing a parent or family member can be overwhelming. Apart from dealing with the immediate arrangements and emotions following the death, family members may also need to determine what should be done with the deceased’s property, bank accounts, investments and other assets.
If the deceased left a valid Will, having a Will does not mean that the beneficiaries can immediately take over or distribute the deceased’s assets.
In most cases, the executor named in the Will will first need to take the necessary steps to administer the estate, including applying for a Grant of Probate before dealing with the deceased’s assets.
This article provides a practical overview of what you should generally do after a parent or family member passes away leaving a Will in Malaysia.
Note: This article generally concerns non-Muslim estates in Peninsular Malaysia.
Table of Contents
1. Obtain the Death Certificate
One of the first important documents required for estate administration is the deceased’s death certificate.
The death certificate will generally be required when dealing with various institutions and authorities in connection with the deceased’s estate.
Keep the original document safely and prepare copies where necessary.
At this stage, family members should also start gathering the deceased’s important personal and financial documents.
These may include:
- MyKad or passport;
- marriage certificate;
- birth certificates of relevant family members;
- property documents;
- bank statements;
- investment statements;
- shareholding records;
- vehicle ownership information;
- insurance documents;
- loan statements; and
- other documents relating to the deceased’s assets and liabilities.
You do not necessarily need to have every document available before seeking legal advice. A preliminary collection of the available documents is usually sufficient to begin reviewing the estate.
2. Locate the Original Will
If you know that the deceased prepared a Will, try to locate the original Will, rather than relying only on a photocopy or scanned copy.
The original Will may have been kept:
- at the deceased’s home;
- in a safe deposit box;
- with the lawyer who prepared the Will;
- with the executor;
- with a trusted family member; or
- with a Will custody or trustee service.
The original Will is an important document for a Probate application.
Avoid writing on, stapling additional documents to, removing pages from or otherwise altering the original Will.
If you can only locate a copy of the Will but not the original, obtain legal advice before assuming that Probate can proceed in the usual manner.
3. Check Who Has Been Appointed as Executor
The Will should identify the person or persons appointed as executor.
An executor is responsible for administering the estate and carrying out the deceased’s instructions under the Will.
The executor’s responsibilities may include identifying the deceased’s assets and liabilities, applying for Probate, collecting estate assets, settling applicable liabilities and expenses, transferring assets and ultimately distributing the estate to the beneficiaries.
For a more detailed explanation, you may read our guide on what an executor of a Will does in Malaysia.
Where a deceased leaves a Will, the executor named in the Will would ordinarily apply for the Grant of Probate. Probate matters fall within the jurisdiction of the High Court.
4. Do Not Immediately Distribute the Deceased’s Assets
A common misunderstanding is that once a Will is found, the beneficiaries named in the Will automatically become entitled to collect the deceased’s assets immediately.
In practice, the estate normally has to go through the proper administration process first.
For example, a beneficiary generally cannot simply present the Will to the bank and ask the bank to transfer the deceased’s money to him or her.
Similarly, ownership of a property registered in the deceased’s name does not automatically change merely because the Will says that the property should go to a particular beneficiary.
The executor generally needs to obtain the necessary authority to administer the estate.
Where Probate is required, that authority is evidenced by the Grant of Probate issued by the Court, the process through which the executor appointed under a Will obtains authority to administer the deceased’s estate.
Accordingly, family members should avoid prematurely distributing, selling or transferring estate assets without first determining the proper legal process.
5. Prepare a Preliminary List of the Deceased’s Assets
The executor and family members should begin identifying what the deceased owned at the time of death.
The list does not have to be perfect at the beginning. Start with what is known and update it as further information becomes available.
Common estate assets include:
Properties
Identify any houses, apartments, shop lots, land or other real property owned by the deceased.
Useful documents may include:
- Sale and Purchase Agreements;
- titles;
- strata titles;
- assessment records;
- quit rent records; and
- loan or charge documents.
Bank Accounts and Fixed Deposits
Identify the banks where the deceased maintained accounts.
Where available, collect:
- bank statements;
- passbooks;
- fixed deposit receipts; and
- correspondence from the bank.
Shares and Investments
These may include:
- shares in listed companies;
- CDS accounts;
- unit trusts;
- investment accounts;
- private company shares; and
- other financial investments.
Motor Vehicles
Keep details of cars, motorcycles or other vehicles registered in the deceased’s name.
Business Interests
If the deceased owned shares in a company, operated a business or had an interest in a partnership, further consideration may be required to determine how that interest should be dealt with.
Other Assets
Depending on the estate, there may also be:
- valuable personal belongings;
- monies owing to the deceased;
- intellectual property;
- foreign assets; or
- other financial interests.
Preparing an asset list early can make the Probate and subsequent estate administration process considerably easier.
6. Identify the Deceased’s Liabilities
Estate administration is not only about identifying what the deceased owned.
The executor should also identify the deceased’s outstanding liabilities.
These may include:
- housing loans;
- personal loans;
- credit card balances;
- taxes;
- maintenance charges;
- outstanding bills; and
- other debts.
The deceased’s liabilities and the expenses of administering the estate generally need to be considered before the remaining estate can ultimately be distributed to the beneficiaries.
This is one reason why beneficiaries should not rush to divide the estate immediately after the death.
7. Apply for a Grant of Probate
Where the deceased left a valid Will appointing an executor, the executor will generally apply to the High Court for a Grant of Probate.
The High Court has jurisdiction over Probate matters, and the Rules of Court 2012 contain the relevant procedural framework for applications for grants of representation.
A Grant of Probate essentially confirms the executor’s legal authority to administer the estate in accordance with the Will.
The Probate process generally involves preparing the necessary Court documents, providing information concerning the deceased and the estate, filing the application and attending to the relevant Court requirements.
The precise documents and procedure will depend on the circumstances of the estate.
You may read more about our Probate and Estate Administration Services in Malaysia.
8. After Probate Is Granted, Deal With the Estate Assets
Obtaining Probate is an important milestone, but it does not necessarily mean that the estate administration is finished.
After the Grant of Probate has been obtained, the executor may still need to deal with the individual assets forming part of the estate.
For example:
Bank Accounts
The executor will need to present the Grant and the required documents to the relevant banks to collect or release monies belonging to the estate.
Properties
Where the deceased owned property, further documentation may be required to transmit or transfer the property.
Depending on the Will and circumstances, the property may eventually be:
- transferred to a beneficiary;
- sold; or
- otherwise dealt with in accordance with the Will.
A Grant of Probate is important because property registered in the deceased’s name cannot simply be transferred by a beneficiary without the appropriate estate administration process.
Shares and Investments
The executor will need to liaise with the relevant companies, brokers, financial institutions or registrars to transfer or realise the deceased’s investments.
Different institutions may have their own documentation requirements.
9. Settle the Estate’s Liabilities and Expenses
Before distributing the remaining estate, the executor should ensure that the relevant liabilities and estate expenses have been properly addressed.
These may include debts of the deceased, expenses incurred in administering the estate and other amounts properly payable from the estate.
An executor should therefore avoid distributing everything immediately simply because the beneficiaries have been identified under the Will.
Premature distribution can create difficulties if liabilities or other claims subsequently arise.
10. Distribute the Remaining Estate According to the Will
After the necessary administration work has been completed and the relevant liabilities have been dealt with, the executor can proceed with the distribution of the remaining estate in accordance with the terms of the Will.
The method of distribution will depend on how the Will has been drafted.
For example, the Will may provide for:
- a specific property to be given to a particular beneficiary;
- a fixed sum of money to be given to a beneficiary;
- particular shares or investments to be transferred;
- the remaining estate to be divided in specified proportions; or
- assets to be held on trust until a beneficiary reaches a specified age.
The executor should carefully follow the terms of the Will rather than distributing the estate based on informal family arrangements.
What If the Executor Does Not Want to Act?
Sometimes the person appointed as executor may be unwilling or unable to administer the estate.
For example, the executor may:
- have passed away;
- be seriously unwell;
- reside overseas;
- be unwilling to take on the responsibility; or
- have some other difficulty acting.
This does not necessarily mean that the estate cannot be administered.
However, the appropriate application may be different and should be considered based on the wording of the Will and the circumstances of the estate.
Where necessary, an application for administration with the Will annexed may need to be considered rather than an ordinary Probate application.
What If There Is More Than One Executor?
A Will may appoint two or more executors.
Where there are multiple executors, the Probate application and administration of the estate should be considered by reference to the appointments made in the Will and whether each executor intends and is able to act.
It is therefore useful to identify all executors named in the Will at an early stage.
What If the Original Will Cannot Be Found?
If the family knows that a Will was prepared but only a photocopy or scanned copy can be located, do not assume that the copy can simply be used in the same way as an original Will.
The absence of the original Will may raise additional legal and evidential issues.
Legal advice should be obtained before deciding how the estate application should proceed.
What If Someone Disputes the Will?
A Probate application may become more complicated where there is a dispute concerning matters such as:
- whether the Will was properly executed;
- the deceased’s testamentary capacity;
- alleged undue influence;
- alterations to the Will;
- competing Wills;
- the identity of the beneficiaries; or
- the interpretation of particular provisions.
A disputed estate is different from a straightforward uncontested Probate application and may require separate legal advice or Court proceedings.
Is Probate the Same as Letters of Administration?
No.
Broadly speaking:
Grant of Probate generally applies where the deceased left a valid Will and there is an executor able to act.
Letters of Administration generally applies where the deceased died without a valid Will, although there are other circumstances where a different form of grant may be required.
You can read our guide on Grant of Probate vs Letters of Administration in Malaysia for a more detailed comparison.
Practical Checklist After Finding a Will
If your parent or family member has passed away leaving a Will, the immediate steps can be summarised as follows:
- Obtain the death certificate.
- Locate and preserve the original Will.
- Identify the executor or executors named in the Will.
- Gather the deceased’s important documents.
- Prepare a preliminary list of assets.
- Identify outstanding liabilities.
- Avoid prematurely distributing or disposing of estate assets.
- Determine the appropriate Probate application.
- Obtain the Grant of Probate.
- Administer the individual estate assets.
- Settle the relevant liabilities and estate expenses.
- Distribute the remaining estate according to the Will.
Do You Need a Lawyer to Apply for Probate?
The administration of an estate can involve Court documents, property matters, financial institutions and various procedural requirements.
The complexity will depend on matters such as the number and type of assets, the terms of the Will, the number of executors and beneficiaries, whether there are overseas assets and whether any dispute has arisen.
Obtaining advice early may also help the executor identify the documents and information that should be gathered before the Probate application is commenced.
Explore our probate services now or learn more about the duty of an executor: Executor of a Will in Malaysia: 16 Things You Should Know
Need Assistance With a Will or Probate Matter?
If a parent or family member has passed away leaving a Will, our lawyers can assist in reviewing the Will, identifying the appropriate Probate procedure and attending to the application for a Grant of Probate and the subsequent administration of the estate.
For more information, visit our Probate & Estate Administration Services.
This article is provided for general informational purposes only and does not constitute legal advice. The appropriate procedure depends on the particular circumstances of each estate.
Dealing With a Similar Matter?
If you require legal assistance in relation to the issues discussed above, contact us to discuss your circumstances.