Introduction
When a person passes away in Malaysia, their assets and properties are usually transferred to their beneficiaries through a legal process known as probate or letters of administration. These two terms are often used interchangeably, but they actually refer to two different procedures. In this article, we will explain the differences between probate and letters of administration, and provide a step-by-step guide on how to obtain them in Malaysia.
What is Probate?
Probate is a legal process that is used to transfer the assets and properties of a deceased person to their beneficiaries according to their will. If the deceased person has a valid will, the executor of the will can apply for probate from the High Court of Malaya or the High Court of Sabah and Sarawak, depending on where the deceased person resided.
What are Letters of Administration?
Letters of Administration, on the other hand, are a legal process that is used to transfer the assets and properties of a deceased person to their beneficiaries when there is no will. In this case, the court will appoint an administrator to manage and distribute the assets and properties of the deceased person according to the Distribution Act 1958.
Step-by-Step Guide to Obtain Probate
First, is to locate and verify the Will: The executor of the will need to locate and then to verify that the will is valid and meets all the requirements under the Wills Act 1959. If the will is invalid or incomplete, the executor may need to seek legal advice to rectify the issues. The location of the Will should be at the house, the bank or is it kept with the law firm who drafted the will for the testator.
Second, to proceed to sign the cause paper/court's documentation: The executor should prepare to sign those court's document in the form of affidavit for probate, which includes the original will, the death certificate of the deceased person, and an affidavit in support of the application. There is also a need to get one of the witnesses to sign the witnesses affidavit.
Third, to file the application at the High Court: The executor should file the application (usually via law firm) for probate to the High Court of Malaya or the High Court of Sabah and Sarawak, depending on where the deceased person resided. The application should be accompanied by the relevant fees. If there are co-ordinate assets in both Sabah & Semenanjung, the probate order obtained in one of the jurisdiction has to be re-seal in the other jurisdiction High Court.
Fourth, the executor has to attend the Hearing in person: The High Court will schedule a hearing to consider the application and the executor has to be present to show his/her identification card. The Court will ask the executor to read out his/her identification card number. If the executor fails to appear before the High Court, the application may have to be postpone, and the granting of the Probate Order may be delayed.
Fifth: Obtain the Grant of Probate: If the court is satisfied that the will is valid and meets all the requirements, it will issue a grant of probate to the executor. The executor can then proceed to manage and distribute the assets and properties of the deceased person according to the will of the deceased. there is a usually a list of assets and beneficiaries filed with the High Court. The extract sealed order has to be send to the Court to be certified true copy by the High Court before it can be used to send to the respective bank, insurance company, EPF and etc.
Step-by-Step Guide to Obtain Letters of Administration
Determine the Next of Kin: The next of kin of the deceased person should be determined according to the Distribution Act 1958. The next of kin may include the spouse, children, parents, siblings, or other close relatives. [see section 6 of the distribution Act 1958]
Prepare the Application: The next of kin should prepare the application for letters of administration, which includes the death certificate of the deceased person, an affidavit in support of the application, and a list of the assets and properties of the deceased person.
Submit the Application: The next of kin should submit the application for letters of administration to the High Court of Malaya or the High Court of Sabah and Sarawak, depending on where the deceased person resided. The application should be accompanied by the relevant fees.
Attend the Hearing: The High Court will schedule a hearing to consider the application. The next of kin should attend the hearing and provide any additional information or documentation that is requested by the court.
Obtain the Grant of Letters of Administration: If the court is satisfied that the next of kin is entitled to the assets and properties of the deceased person, it will issue a grant of letters of administration. The next of kin can then proceed to manage and distribute the assets and properties of the deceased person according to the Distribution Act 1958.
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