So perhaps you have acquired enough wealth, and you are starting to worry about how to ensure your family is well provided for after your demise. Or maybe you are getting elderly, or preparing to leave on a dangerous trip. You would like to prepare a will. But where to start do you start?
1. Step One: Understand the basic requirements.
Familiarize yourself with the legal requirements for creating a will in Malaysia. The following basic requirements under Section 5 of the Wills Act 1959 (Act 346) should be met:
(a) the testator (that’s you, the person making the will) must be at least 18 years old;
(b) the testator must be of sound mind;
(c) the will must be in a written form;
(d) the will must be signed by testator in the physical presence of two witnesses; and
(e) the witnesses must then sign in the physical presence the testator (note that beneficiaries cannot be witnesses).
2. Step Two. Determine your assets and beneficiaries.
Make a comprehensive list of your assets, including properties, bank accounts, EPF savings, shares, investments, and personal belongings. Note that online assets (including NFTs, cryptocurrencies and even access to social media accounts) can also be included in your will. You should also consider including foreign assets that you hold overseas.
If you are having trouble determining the full extent and current status of your immovable properties (i.e land and houses), you can contact our Conveyancing Department for a proper search to be carried out.
If you are having trouble determining the full extent and current status of your non-tangible assets, such as shares, equity, intellectual property and so on, you can contact our Corporate Department for consultation.
Decide who you want to inherit these assets and how you want them to be distributed. They don’t have to be given entirely to a single beneficiary; a house or the contents of a bank account can be divided into shares for multiple beneficiaries.
Some beneficiaries can be listed as only being able to inherit after they certain event happens (i.e. upon a child turning 18).
You can also consider specifying alternative beneficiaries in case a beneficiary dies before you.
3. Step Three. Determine your executor.
Your executor has to be aged 18 years or above. This should be a person close to you that you trust, as the role he/she will play after your death is very important. Basically, an executor executes your will: they are the ones responsible for carrying out the instructions you leave behind. Your executor must know where to locate your will, and then apply for grant of probate (without which your properties cannot be distributed by the courts), holding onto your assets as trustee up and until they are all handed out to the beneficiaries. The executor must also deal with the debts and liabilities you have incurred right before your death. In the even that your first choice of executor is sick, unable, or unwilling to carry out these important duties, you should also name a second executor in your will as a back-up. And do not worry: an executor can also be a beneficiary.
4. Step Four. Determine your child’s guardian & trustee.
If you have children under the age of 18, you might need to consider naming a guardian for your child in the event that your demise occurs before the child turns 18.
The guardian can also be the child’s trustee, that is to say the assets bequeathed to a child can be held in a trust by the trustee until the child turns 18. The trustee will pay for the child’s expenses out of the trust you create, and when the child turns 18, the trust ends and the remaining balance of the trust is transferred outright to the child.
5. Step Five. Talk to us
Once you have made up your mind, and have gathered all the important information as described above, reach out to us in order to start creating your will. Besides providing drafting services and storage of your will, our firm can also act as the legal counsel for your executor to contact upon your demise, and can provide legal assistance in the probate process.
This article was written by Caleb Goh from Marcus Tan & Co’s Litigation Department
Marcus Tan & Co. All rights reserved. The views and opinions attributable to the authors or editor of this publication are not to be imputed to the firm, Marcus Tan & Co. The contents of this publication are intended for purposes of general information and academic discussion only. It should not be constructed as legal advice or legal opinion on any face of circumstance. You are advised to seek independent legal advice for any furtherance of the subject matter.