Introduction
When a person passes away (the “Deceased”), his assets and belongings will have to be administered by an Administrator or Executor appointed in his will. As previously discussed, all the designated Administrator or Executor have to do is to apply to Court for a Grant of Probate. But what if the Deceased dies without a valid will?
Step 1: Starting the Process
It is commonly believed that Letter of Administration (“LA”) are only required in the event of intestacy, which is when a person dies without a will. Actually, you will also need to apply for LA if the Deceased dies with a will but fails to name his Administrator/Executor in it, or if the designated Administrator/Executor is unable or unwilling to act.
In such a situation, anyone with a vested interest in their estate can take the first step by applying for a Grant of LA. This is defined as the spouse, child, parent, sibling or any other person who has a beneficial interest in the estate, of the Deceased. Up to four individuals can apply jointly as Administrators.
Step 2: Gathering Documents
As the person applying for the LA, you will need to prepare the following documents which will be included as exhibits in the affidavit accompanying your LA application papers:
- The original copy of the death certificate of the Deceased
- A detailed list of the Deceased’s assets and liabilities
- The list of beneficiaries
- If more than 3 years have passed since the death, there needs to be an explanation for the delay in the Affidavit
- If other parties have an interest in the estate but are not applying for the LA, they should renounce their rights formally, and this renunciation of rights should be included in the affidavit.
Step 3: Attend the High Court Hearing
Your lawyers should be able to fill out and conduct the LA application process without trouble after receiving the aforementioned documents from you. Next, you as thethe intended Administrator would be required appear in the High Court for a hearing in person. If all requirements are met, the High Court will issue the Grant of LA.
Step 4: The Administrative Bond
In certain situations, you may need to provide an administration bond to secure the distribution of the Deceased’s estate. This typically involves two persons with assets equal to the estate’s value acting as sureties. However, an administration bond is not needed when:
- The estate’s gross value is less than RM50,000.
- The grant goes to a trust corporation.
- The Administrator is the sole beneficiary.
Step 5: Collect and Distribute the Estate
With the Grant of LA in hand, you can begin dealing the deceased’s assets in Malaysia and settling any debts. Once all the debts are paid off, you must distribute the assets according to section 6 of the Distribution Act 1958, as follows:
| Scenario | Surviving Relatives | Distribution of Estate |
| (a) | Spouse | Spouse: 100% |
| (b) | Spouse, Parent(s) | Spouse: 50% Parent(s): 50% |
| (c) | Children | Children: 100% |
| (d) | Parent(s) | Parent(s): 100% |
| (e) | Spouse, Children | Spouse: 33.33% Children: 66.67% |
| (f) | Children, Parent(s) | Children: 66.67% Parent(s): 33.33% |
| (g) | Spouse, Children, Parent(s) | Spouse: 25% Children: 50% Parent(s): 25% |
If the family chooses to divide the estate in a manner inconsistent with the Distribution Act as set out above, you can do so but must apply for a court order first.
Step 6: Handling Estate with Land
If the estate involves land or immoveable property, you will need to apply to the Registrar to transfer it to you. You must provide the Grant of LA and the land’s title document. Once it is transferred, you can begin distributing it to the designated beneficiaries.
Step 7: Keep Detailed Records
Finally, throughout the process it is crucial to keep a clear record of how the assets were distributed among the beneficiaries.
This article was written by Caleb Goh and Teo Qiao Er, our intern from Marcus Tan & Co’s Litigation Department