What is an estate?
“Estate” refers to all of the assets and liabilites owned by a person at the time of their death. This may include assets like cash, bank accounts, shares, real property etc.
This can only take place after a grant of Probate or Letters of Administration (Surat Kuasa Mentadbir) have been obtained and the funeral expenses, debts and liabilities of the estate are paid.
Where there is a will, the estate is referred to as a testate estate. Where there is no will, it is referred to as an intestate estate.
How can an estate be inherited?
Before an estate can be inherited a grant of representation must first be issued by the relevant authority appointing a personal representative (administrator or executor) for the estate of the Deceased.
There are two types of grants of representation i.e. Grant of Letters of Administration and Grant of Probate.
What is a personal representative?
Section 2 of the Probate and Administration Act 1959 (“PAA 1959”) defines ‘personal representative’ as the executor or administrator of a deceased person.
In other words, it is the person who is given the power, by virtue of a grant of representation, to step into the deceased’s shoes and conduct affairs on his behalf.
Probate or Letters of Administration - which do I need?
This depends on whether the deceased person has left a Will.
If there is a Will then the estate is considered testate and a Grant of Probate is needed.
If there is no Will then the estate is considered intestate and a Grant of Letters of Administration is needed.
Grant of Probate
What is a grant of probate?
The PAA 1959 defines it as a grant under the seal of the Court authorizing the executor or executors therein named to administer the testator’s (person who wrote the Will) estate.
In other words, it is a document issued by court which confirms the authenticity of the will of the deceased and empowers the executor(s) named therein to administer the estate of the deceased according to the Will.
What is an executor?
An executor is a personal representative appointed by the testator in his Will.
It is also the person to whom the grant of probate is given.
What it the role of an executor?
The executor is responsible for carrying out the testator’s wishes expressed in the will and administering the estate accordingly.
This includes the transmission, conversion, payment of debts and liabilities and distribution of the estate in accordance with the Will.
Does an executor need to apply for grant of probate?
Where there is a valid Will, the executor derives his title and authority to act on behalf of the testator from the Will.
In practice, the executor named in the Will must obtain grant of probate to validate his authority to act as executor.
Obtaining grant of probate indicates that the court has validated the will and confirmed the appointment of the executor.
What is the process of applying for grant of probate?
The executor will have to appoint a lawyer of his choice to file the petition for grant of probate.
Regardless of the value of the estate, an application for grant of probate shall be made to the High Court in the state where the deceased resided or owns property.
The application should be filed within 3 years from the date of the deceased’s death. In the event of delay, the reason for delay must be explained to court.
The executor will need to gather the supporting documents including the original Will, death certificate, NRIC of beneficiaries etc.
Where the assets and liabilities are not stated in the Will, the executor will have to find out what assets and liabilities were owned by the deceased at the time of death.
Once the petition is filed, the Court will set a hearing date and the Executor will be required to attend the hearing.
When the Court has ascertained the validity of the will, an order for grant of probate will be issued.
Finally grant of probate will be extracted from Court after payment is made and the necessary supporting documents have been filed in court.
Court does not issue original grant of probate therefore certified true copies of the grant are obtained from court.
How long does it take to get a grant of probate?
An application for grant of probate is usually completed within 2 – 4 months.
Who pays for the cost of applying for grant of probate?
The legal costs are normally paid out of the estate of the testator.
Therefore, the executor would be able to recoup the relevant expenses incurred from the estate.
Letters Of Administration
What are letters of administration?
A grant of letters of administration is given by the High Court to a successful applicant appointing him as administrator and giving him the power to administer the estate of the Deceased where there is no will.
What is an administrator?
An administrator is the person appointed by court and to whom the letters of administration is granted.
Who can be appointed as administrator?
The court has the discretion on whom to appoint as administrator.
Section 30 of the Probate and Administration Act 1959 states that the court will consider, among other things, the rights of all persons interested in the estate of the deceased person.
In determining who has the right to representation, the court is guided by priorities of their entitlement under the Distribution Act 1958.
Therefore, the most suitable persons to be appointed as administrators are the next of kin of the deceased, in order of their priority under the Distribution Act (i.e. spouse, children, parents, siblings, grandparents and so on).
Those who are entitled to the grant of letters of administration but do not wish to act as administrator must renounce their right to do so.
What is the role of an administrator?
An administrator is responsible for handling the deceased’s affairs including settling the deceased’s debts and liabilities (out of the estate), gathering and distributing the assets to the lawful beneficiaries.
What is the process of applying for letters of administration?
This article only covers applications for grant of letters of administration made at the High Court.
The beneficiaries will first have to decide who will act as administrator. Where there is a minor interest, two administrators must be appointed.
The person(s) who intends to be appointed as administrator will apply to court for letters of administration.
The applicant will need to provide a list of the deceased’s assets and liabilities, as well as a list of beneficiaries (according to the Distribution Act).
The applicant will also need to provide all documents required by court including an administration oath.
After the application is filed in court, the applicant will attend the hearing and obtain a court order.
Dispensation of sureties
Section 35(1) of the Probate and Administration Act 1959 states that where the value of the estate exceeds RM50,000.00, the administrator shall provide security for the due administration of the estate, unless the court orders otherwise.
The security shall ordinarily be by bond in the prescribed form by the grantee and two sureties.
In most cases this requirement for two sureties can be dispensed by court upon the application of the administrator and at the court’s discretion.
How long does it take to get letters of administration?
As this varies from case to case, we are only able to provide a rough estimate. Factors such as the nature of the assets, whether any dispute arises, number of other cases that are to be heard, etc. affect the duration involved.
Should there be no delay or dispute, the letters of administration may be obtained within 4 – 6 months from the date of filing.
Who pays the cost of applying for letters of administration?
The legal costs are normally paid out of the estate of the deceased. Therefore, the applicant would be able to recoup the relevant expenses incurred from the estate.
Conclusion
Understanding the processes of probate and letters of administration is essential for anyone dealing with the estate of a deceased loved one.
Whether there is a will or not, navigating the legal requirements can be complex and time-consuming.
At Chan & Chia, we are here to guide you through every step, ensuring that your loved one’s estate is managed and distributed lawfully and with care.
If you need assistance or have questions about probate or letters of administration in Malaysia, don’t hesitate to contact our experienced legal team.
