Having an abundance of estate and worrying your children cannot handle them all?

Have you ever envisioned your own funeral ceremony? If you do not, I do! I envisioned that my children and/or parents handled it well with all legal steps and/or documents well laid down. Envisioning all these upfront is not a curse but it is so eminently important to get it prepared in advance to save them a lot of hassle during the day of your passing! When a person dies without leaving a Will, this is called intestacy.

In Malaysia, we have Muslims and Non-Muslims laws when it comes to laws of inheritance. For nonMuslims, the estate will be distributed according to Section 6 of the Distribution Act 1958. Instances of Distribution:

If the deceased leaves behind spouse, children and parents, his or her estate is generally divided as follows:
Spouse: 1/4 Children: 1/2 Parents: 1/4

Another instance of which if the deceased only behind spouse and children,  his or her estate is generally divided as follows:
Spouse: 1/3 Children: 2/3  

If you are not to allow the above distribution, the only effective and/or cost saving ways to skip this would be preparing a Will and it is highly recommended to do so! NO doubt, you would hesitate on the importance of having a Will. Can having a piece of paper (Will) solve all my estate distribution issues?

You should deeply understand the functions of a properly drafted Will as it could help you with the followings:-

1) Control Asset Distribution according to your wishes and intention

As an estate owner, you get to decide who receives your assets instead of relying solely on statutory distribution laid down by the laws of Malaysia as mentioned above. You can give all you have to anyone you prefer without even flipping the act/statue designed for you in Malaysia. Giving out or passing down your estate should be vested in your hand so you can ensure your loved ones inheriting your estates effectively after your "LAST FAREWELL DAY".

2) Appoint an Executor

You were to ask, who will assist me to run my estate inheritance errands as I am already in my expensive coffin? Of course, your legal representative will get your consent to appoint a trusted person to manage your estate and carry out your wishes as per the Will when they are preparing your Will. The Executor must be a sound person above majority age. If you wish to pass your estate to someone ("Beneficiary"), can you also appoint him or her as your Executor? The answer is affirmative!

3) Protect the interest of Minor Children or Beneficiaries who are legally incapacitated.  

In the event that as of the date of you drafting your will via your legal representative, it is a must for you to appoint guardians for children if they are below 18 years old particularly if your children are also beneficiaries to your estate. In addition to that, should any of your beneficiaries who have reached the age of majority may still require a guardian if they are deemed as a person who is legally incapacitated. legally incapacitated shall mean any person who is unable to make informed decisions regarding their personal care and/or daily decisions including but not limited to their finances, or property or daily care due to their serious physical disabilities or mental illness. From here, you should be able to differentiate the importance of having and not having a Will. Without Will, any minor beneficiary or incapacitated beneficiary may not be able to enjoy any share of your estate and their interest would be easily neglected.  

4) Avoid Family Disputes

Clear instructions of yours, if well stated in your Will, can ensure your Executor is not involved in any conflicts among family members after your death.  No family disputes would have occurred after your passing as your will has already outlined the list of beneficiaries, appointed a trusted executor, and manner of estate being distributed according to your wishes. The Will will be relied on as a strong and conclusive evidence as it is always witnessed by independants lawyers as witnesses who could be called as expert witnesses in the event any party disputing the Will before the court of Malaysia.  

5) Expedite the Legal Process

Why can having a Will in hand avoid lengthy legal processes? The answer is purely simple and straightforward. The deceased has allocated and planned upfront before his or her passing the distribution of his or her estate and in most of the circumstances Court would not be required to dive into checking the intention of the deceased before giving any orders as to the distribution of his or her estate in accordance with the deceased's Will. In such an event, your legal representative would be adopting simpler and easier legal steps in applying for Grant of Probate instead of going through the complicated process for Letters of Administration without a Will in which the later proceeding would cost you more!

Let us share in simple segments how to differentiate the differences between Probate vs Letters of Administration.

Grant of Probate would be issued by the Court when there is a valid Will and an Executor is named therein. Letters of Administration (LA) however on the other hand are required when there is no Will left by the deceased and hence, family members must apply to Court to appoint an administrator to administer the estate. LA is a process that is often longer, more expensive, and can cause disputes among beneficiaries.

You may be curious what kind of common disputes that usually arise amongst the family members who are having blood ties. It is not our purposely invoked issues that concern you or intended statement to make you feel uneasy or scared. It is becoming a numb situation for us to see beneficiaries having arguments over the residue of estate if it is not well stated or explained in the testator's Will.  

Some common legal issues include:
• Disputes over list of family property
• Challenges as to the validity of the Will
• Hidden debts and liabilities of the deceased which is not clearly defined
• Claims by dependents who are left out of the Will
• Unclear ownership of jointly owned assets
• Disagreements among siblings regarding estate distribution
• Unclear ownership of owned property registered by the deceased under capacity as Trustee and/or Nominee
• Where should the beneficiaries locate all the estate documents?

Hence, you would ask us from the above list of legal issues, having a valid Will can resolve those issues once and for all? Proper legal advice can prevent these issues? We would say if you were to have a validly drafted Will, well attested and witnessed by legal representatives, most of the issues abovenamed could be avoided or even it is to be challenged before the Court, the legally drafted Will would be the referrable evidence to the Court to resolve the issues efficiently.  

Let say Executors have managed to obtain a Grant of Probate and/or Letter of Administration, what would be the next steps the Beneficiary has to go through? Having Grant of Probate and/or Letter of Administration would mean Court has legally ordered someone being officially appointed to sign any legal documents on behalf of the deceased to facilitate the transmission and/or property transfer thereof.

It is a common question we receive from our client asking, is it a must for them to perfect the transfer of the deceased's property in accordance with Grant of Probate if they plan to resell the property in a very short time frame? If you have such planning, it would be our firm's practice to advise you to hold the transmission and/or transfer of that particular property until you have found your buyer to purchase the said property as this step can really save you from paying more legal fee and/or costs thereof.  

What kind of documents and/or info you should have or know before transfer the deceased's property:-
a) title verification to be conducted by your lawyer at the land office
b) certify true copies of the probate or LA for presentation of transfer thereafter at land office
c) stamp duty considerations that is payable by beneficiary, if any
d) type of legal documentation that is relevant to facilitate the circumstances of transfer
e) different property will have different legal compliance with land office of each state
f) original title completely enclosed with plan of the property must be in good shape and condition

It is important for us to emphasize that if your property transfer is not professionally prepared, your transaction can be delayed for years due to the following reasons:-
Incomplete or Incorrect or Unclear Legal Documentation:
Missing documents or incomplete or unclear documents during the presentation at land office, incorrect ownership details stated on your transfer documents,

Pending Encumbrances that hinder the transfer:
If your property has an existing charge (bank loan) or a caveat (lodged by any interested party) against it, the transfer will be put on halt by the land office until these are formally removed or cleared  and this process would requires specialized legal intervention.

Henceforth, back to your question: do you really need to engage a lawyer to handle your property inheritance, transmission at land office and/or court proceeding to obtain your Grant of Probate and/or Letter of Administration? The answer is, definitely advisable to do so, even if you start as easy as having a simple but validly drafted clear Will to ensure your heritance is well planned.  

Always consult a qualified lawyer for:
• Will drafting to ensure its validity and independency on the requisite witnesses
• Probate or LA applications
• Estate distribution after the LA applications
• Property inheritance matters Probate or LA applications
• Faraid and Syariah inheritance advice

Conclusion, PLEASE ENSURE you plan your estate arrangement earlier and should not do it in a hurry as it involves a hundred thousand worth of estate or even more! Protect your legacy by spending a little but guarantee more to your family’s future.