Main Category

• Library > Legal Subjects > Estate Planning > Wills

Related Topics

• Islamic and Customary Laws
• Estate Legalese (Terms)
• Probate

DOES ANYONE HAS THE RIGHT TO VARY MY WILL ?

Although you can name your beneficiaries of your choice, there are certain people who can apply under the Inheritance (Family Provision) Act 1971 for reasonable provision to be made for their maintenance if nothing or an insufficient amount, is left to them under the will.

These persons include :

• a wife or husband.
• a daughter who has not been married or who is, by reason of mental or physical disability incapable of maintaining herself.
• a son who is, by reason of mental or physical disability, incapable of maintaining himself.
• an infant son below the age of 21.

A legally adopted child is also considered your son or daughter under the Inheritance (Family Provision) Act 1971.

However, the court will make the decision based on the merits of each case.

WHAT HAPPENS IF I DO NOT MAKE A WILL ?

Everyone has a will, whether you realize it or not.

One who dies intestate that is without an individual will reflecting his own wishes, automatically has provided for him by state law of a kind of standard will reflecting the legislative's conception of the deceased's probable objectives.

If you pass away without making a will, your assets will be distributed according to the rules of intestacy as laid down in the Distribution Act 1958 for West Malaysia and Sarawak and the Intestate Succession Ordinance 1968 for Sabah.

The intestacy laws cause your property to pass to your survivors according to the rules of intestacy but these rules never operate as thriftily as a proper will.

An administrator or administratrix will administer and distribute your assets instead of executors. Nevertheless, they perform a similar task.

Your assets will go to the Malaysian government, if you do not have a will written and you are not married and do not have any next of kin.

If you have assets with gross value of less than or equal to RM600,000 your assets will be distributed

• for movables assets only - by Amanah Rakyat Berhad under section 17 of the Public Trust Corporation Act 1995 who can administer your estate without the need for sureties or guarantors.
• for wholly or party immovables assets - by District Land Administrator under Small Estate (Distribution) Act 1955. A Distribution Order will be issued and no sureties or guarantors are required.

If your assets have a gross value of over RM600,000, your beneficiaries will have to apply to the High Court for Letters of Administration.

• The beneficiary having priority over other beneficiaries has to file the petition for Letters of Administration.
• All other beneficiaries must sign a Renunciation of Administration letter to renounce his or her right to petition. Those who refuse to sign will be served a notice when the petition comes up for hearing. They may also object to the petition which will then be proceeded as a contentious one.
• At the hearing, those who fail to appear will deemed to have renounced their right to administration.
• An administration bond will be required before the grant of Letter of Administration can be extracted. The administration bon is in the form of security of the due administration of the deceased's estate. In other words, the administrators will have to provide two sureties or guarantors with unencumbered assets equivalent to the value of your estate to sign the bond.
• The sureties has a duty to ensure that the property will be properly distributed and the accounts properly rendered.
• It is at the court discretion whether a court order should be granted to decrease the amount of bond or reduce the number of sureties or dispense with them. If a trust corporation is appointed as the administrator or if the administrator is the sole beneficiary, sureties can be dispensed with this.
• Where the administrator abscond with your estate, the sureties will have to bear the responsibilities of refunding the loss.

The person who inherits your estate is usually appointed to serve as the administrator of your estate, to collect your assets and settle your estate.

If you are survived by your minor children, a court will appoint a guardian for their estates until they reach the age of 18 years. The guardian will have to obtain the court approval each time she intends to withdraw or use the money for the purposes of maintenance and education of the children.

An illegitimate child is not entitled to claim from the father's estate but can claim from the natural mother's estate provided she does not have any other legitimate children.

A common law wife is not entitled to any of the husband's estate by law. Only legal wife is entitled to claim from her husband's estate.

Your lawyer can advise you about these rules and how they apply to you.

If you have specific intentions about providing for your family members, friends or a charity after your death, you should consider making a will.

If your estate is large, disastrous litigation may follow one's death. If the estate is small it may be divided between various survivors in portions too small to help anyone.