What is a Will?

A Will is a declaration in a prescribed form of the intention of the person making it of the matters which he/she wishes to take effect after his/her death.

Who is a testator?

A person who makes a Will.

What happen if someone dies without a Will?

The estate of the deceased will be frozen. The immediate family needs to apply for Letter of Administration (LA) to unlock the deceased’s estate before able to transfer it to his/her family members i.e. the legal beneficiaries.

In what situation do we apply for a GP or LA?

When there is a Will left behind by the deceased, the immediate family will apply for a GP. However, when he/she dies without a Will, the family member have to apply for a LA.

What is a Letter of Administration (LA)?

An authority given under the seal of the Court for the administration of the estate of a person who has died without leaving a Will.

What is a Grant of Probate (GP)?

A Court order that formally authorizes the executor to administer the deceased’s estate according to the Will.

Who can be an executor or trustee?

A natural person above the age of 21 or a Trust company.

What is the maximum number of executors I can appoint in my Will?

Maximum of four. One Executor is required for the application of Probate.

What are the duties of an executor in a Will?

  1. Locate the Will
  2. Make funeral arrangement
  3. Apply for a Grant of Probate(GP)
  4. Call in assets
  5. Pay debts
  6. Prepare Statement of Accounts
  7. Distribute assets according to the Will
  8. Carry out some wishes mentioned in the Will

Under what circumstances does a testator need to appoint a Guardian and Trustees?

When there is a minor beneficiary named in the Will. Normally, the Trustees will hold on trust for the minor till he/she has attained the age of 21 years old or a \’Trust Properties\’ or ’Trust Fund’ is created in the Will. A guardian is needed to take care of the welfare of the minor children if both parents are pre-deceased

What are the duties of Trustees?

  1. Continue to administer the estate where the properties cannot be distributed, eg. for a minor or before the trust period ends.
  2. Manage the estate according to the instructions and powers given by the Will and according to the Trustees Act.
  3. The appointed trustees cannot benefit by virtue of their office. All profits must be accounted for.

I was advised that I should not appoint the same person in my Will as my Trustee and Guardian. What is the reason for this?

The role of your Trustee is to hold on trust your money and other assets for your minor children while your Guardian is to take care of the welfare of your minor children. Thus, it is always wise to appoint different people to ensure there is counter-check, especially on the money left behind by you for your minor children.

What are the advantages of having a Will written?

  1. You provide for your beneficiaries in the way you choose rather than letting the Law decides for you.
  2. Expedite the legal process.
  3. No guarantors(sureties) required by the High Court.
  4. You may appoint a guardian of your choice for your infant children.
  5. You exercise the right to appoint people of your choice to administer your estate and to carry out your wishes so as to safeguard the interests of those you love and care for.
  6. It costs less in terms of legal fees to apply for a GP than a LA.

Who is an administrator? Who is qualified to be an administrator?

An administrator is a person appointed by all the legal beneficiaries to the estate of a deceased who has passed on without a Will to administer the estate of the deceased. All legal beneficiaries of the deceased are qualified to be an administrator.

I understand that the High Court requires two guarantors when the deceased’s family member applying for a LA if he/she passes on without a Will?

Yes, two guarantors (sureties) are required by the High Court by way of bond equivalent to the gross value of the deceased’s assets.

Is it true the consents from all the legal beneficiaries to the estate of a deceased who passed on without a Will is required before the administrator can be appointed?

Yes, the consents from all members of the family is required. Any beneficiary who is not applying to become the administrator will have to renounce his/her right to the appointed administrator.

Under what situations the Court will not require an administration bond guarantors(sureties) when applying for a LA?

  1. The estate does not exceed RM50,000.00.
  2. A trust corporation is being appointed as the administrator.
  3. The administrator is the sole beneficiary.
  4. A Court waiver – full or partial. This is at the discretion of the Court.

How long does it take to apply for a Grant of Probate(GP) or a Letter of Administration(LA)?

A GP application normally takes a shorter time than a LA application. Normally a GP can be extracted within a minimum of three months to a year, depending on the size of the estate; while a LA normally takes 2 to 5 years.

Is it true that it cost less in term of legal fees to apply for a Grant of Probate(GP) than a Letter of Administration(LA)?

Yes, it is.

What are the essential clauses in a Will?

  1. Opening clause
  2. Revocation clause
  3. Appointment of executors
  4. Residuary clause
  5. Attestation clause

What is a residuary clause?

It is one of the vital clauses in a Will. Any asset which the testator has forgotten to will away will automatically fall under the residuary clause. Thus, with a residuary clause, there is no partial intestacy of a Will.

What happens if my Will does not have a clause on the residuary estate?

Your Will will become partial intestacy.

What is an accrual clause in a Will?

In a Will, an accrual clause is one that mentions the subsequent beneficiary of a particular asset should the earlier mentioned beneficiary pre-deceases.

When will my Will be in force?

It will be in force upon execution with two independent witnesses and is written according to the Will Act 1959.

What are the assets in special cases that can be be dealt within a Will?

  1. Failure of Nomination, Insurance policies.
  2. Failure of Nomination, Money in Kumpulan Wang Simpanan Pekerja (KWSP) account.
  3. A Joint Bank Account, In Malaysia unlike Singapore there is no survivorship after the death of one of the joint account holders.

What is an issue?

A person’s issue refers to his/her children, grandchildren and all lineal descendents.

Under The Distribution Act 1958 (As amended in 1997), what is the distribution among the spouse, parents and issue of the deceased?

If there are surviving spouse, parents and issue, the distribution is:-
  • Spouse 1/4,
  • Parents 1/4 and
  • Issue in equal shares of the 1/2.

If there are surviving spouse and parents only and no issue, the distribution is:-
  • Spouse 1/2 and
  • Parents 1/2.

If there are surviving spouse and issue only and no parent, the distribution is:-
  • Spouse 1/3 and
  • Issue in equal shares of the 2/3.

If there are surviving parents and issue only and no spouse, the distribution is:-
  • Parents 1/3 and
  • Issue in equal shares of the 2/3.

Please note:- Issue: Includes children and the descendent of children.

What happen if a person passes on leaving no spouse, children or parent?

The following person(s) are entitled in accordance to priority when an intestate dies without leaving behind a surviving spouse, children or parent:-
  1. brothers and sisters
  2. grandparents
  3. Uncles and aunts
  4. Great grandparents
  5. Great uncles and aunts and

Can the witnesses and the testator sign on the Will at different times?

No, both the witnesses and the testator must sign the Will at the same time. The function of the witnesses is to confirm and verify that the testator is of sound mind.

Can I will away my foreign assets?

Yes, the movable assets and immovable assets in Common Law Jurisdiction subject to sealing of Commonwealth and Colonial Grants.

I have a house under joint name with my husband. Can I will my half share in my house away to whoever I wish?

Yes, you can. The house will be held jointly between your beneficiary and your husband should you pass on one day.

Is it true that a testator’s marriage will automatically revoke a Will written prior to the marriage?

Yes, it is.

I am going to inherit some assets from my father when he passes on in the future. Can I specify them in my Will even though I do not own the assets at the point when I write my Will?

Yes, you can.

Can I produce my Will on videotape or VCD instead of writing everything down?

No. Under Section 5 of the Will Act 1958, all wills must be written in a prescribed form.

Can I sell my assets mentioned in my Will after I signed it?

Yes, you can. Once you have sold off any of the assets mentioned in the Will, the respective beneficiary will receive nothing as on the date of your death, there is no such asset.

Under what circumstance can Amanah Raya Berhad (ARB) administer the estate of a person who dies intestate?

For Movable Assets less than RM600,000.00.

At what age will my children inherit my property?

A person is legally capable of holding property upon attaining the age of 18.

Can I write my Will in Chinese?

A will can be written in any language. However, where the Will is not in English a translation certified by a court interpreter or a translation verified by the affidavit of a person qualified to translate must be annexed to the application for Grant of Probate.

I am an orphan, my mother never come back after leaving me with my nanny who take care of me since I was three years old. When I am gone, will my nanny benefit from my estate for the work done by her?

No, she would not. You need to write a Will and name your nanny as a beneficiary.

I was working in USA for five years and had written a Will there. Now I am back in Kuala Lumpur. Is my Will recognized by the Court in Malaysia?

Yes, only for movable assets in Malaysia.

Does a Will need to be stamped and sealed?

No, under the Will Act, a Will need not be stamped.

Can one of my beneficiaries be the executor, trustee and guardian in my Will?

Yes, he can. However, for check and balance purposes, it is always advisable to appoint a guardian who does not perform the duty of a trustee.

I want to give everything I own to all my children in equal shares but I plan to have one or two more children in the near future. Does it mean I have to rewrite my Will every time I have a new child?

No. You can include the clause “en ventre sa mere” which means future children are included as well.

Can a Grant of Probate (GP) be granted on a copy of a Will?

No, normally the Court requires the original copy.

Can I write a Will for someone when I am one of the beneficiaries in the Will? Is there any conflict of interest?

There is no restriction on writing a Will. However, if the Will is contested in Court later and the Court finds suspicious circumstances exist, probate might not be granted unless the suspicious are removed.

Can I make alterations to my Will without writing a new one?

Yes, provided it is signed by the same witnesses. However, it is always advisable to write a new one to avoid future complications.

I have written a few Wills years ago which I have lost. Recently, I have written another one. If any of my old Wills are recovered after I die, which is the valid Will?

The latest one.

I will be getting married in a few months time. I understand that if I write my Will now, my marriage will revoke it? What shall I do in the meantime?

Put the name of your fiance in the Will.

What is Contemplation of Marriage?

When a person gets married, his/her Will will automatically be revoked unless he/she mentions that he/she is subsequently going to marry a particular person or he/she is in ’contemplation of marriage’. In this case, this Will will not get revoked even after marriage to this particular person.

What is a codicil?

An addition to the Will, signed and witnessed in the same way as the original Will. The witnesses may be different from those people who witnessed the original Will.

Can a beneficiary or his/her spouse be a witness in a Will?

No. A beneficiary or his/her spouse must not be a witness. If he/she does, then he/she will lose his/her share in the Will. However, this will not affect the validity of the Will.

If I have nominated my parents as the beneficiaries for the money in my KWSP account, can I subsequently will it away to my spouse? Can my Will revoke the nomination I made earlier?

No. your beneficiary in the Will will not be able to revoke your earlier nomination in the KWSP account. Under the KWSP Act, all beneficiaries for the money in the KWSP account must be mentioned in the prescribed forms provided by KWSP.

What is domicile? What is lex situs?

Domicile is the country in which a person is or presumed to be permanently resident. Lex situs means the law of the place where the property is situated. It is the general rule that for movable properties, the law of the testator’s domicile applies whereas for immovable properties, it is lex situs that applies.

Can I make a pre-arrangement to pay my appointed guardian periodically for the work done by her in my Will?

Yes, you can. It will be known as a ’Trust Fund’.

After signing the Will, if the testator divorces his wife who is a beneficiary in the Will, will she be able to receive the gift mentioned in the Will?

Yes, she will. A divorce does not render a Will null and void.

Can I donate a specific amount to charity?

Yes, you can mention the specific amount for donation. However, in your Will, you need to name the charity that you want to benefit.

In my Will, can I create a Trust Funds to pay for the maintenance expenses of my elderly parents and my retarded nephew that I loved very much?

Yes, you can. It is known as ’Maintenance Trust Fund’ for your elderly parents and your nephew. ’Trust Fund’ can also be created for payments of education expenses, medical expenses, monthly donations etc.

Can I state my funeral arrangements in my Will?

Yes, you can. In a Will, you can mention your wishes and the executor appointed by you will have to carry out your wishes. This is one of the purposes of writing a Will.

Can I write a general Will? I do not want to list down my assets.

Yes, you can. In this case, it is advisable to keep good records of your assets as you do not wish your family members to ’treasure hunt’ your assets once you are no longer with them.

I have written a Will five years ago. Since last month, I have become a Muslim. Is my Will still valid?

No. Once a person professes the Muslim faith, the distribution of his/her estate will be governed by the Syariah Law

Do I have control over the assets that I have willed away in my Will?

Certainly, a Will only takes effect upon your death.

Should I will away a joint bank account?

Yes, no survivorship of Joint bank accounts in Malaysia. The surviving holder will be not entitled to share of the deceased person in the money standing to their credit in the bank account. Banks in Malaysia follow Tenancy-in-Common, the share of the deceased joint account holder shall pass under a Will. Banks in some other countries follow Joint Tenancy. The surviving co-owner automatically succeeds to the share of co-owner when he dies.

Can I keep my Will written by a Rockwills Will-Writer in my safe deposit box in my bank?

Not advisable, as the safe deposit box will be frozen when you pass on. Thus, your family members may not be able to retrieve it for the application of Probate.

What are the common testamentary trusts created in a Will?

Some of the common testamentary trusts in a Will are as follows:-
  1. Education Trust Fund for children
  2. Maintenance Trust Fund for elderly parents
  3. Trust Fund for handicapped children/family members
  4. Maintenance Trust Fund for spouse
  5. Charitable Trust Fund on the education expenses for the poor

I have written a Will recently. I am going to purchase some new assets next month. Do I need to rewrite again? Will there be anyone receiving these assets when I pass on without writing a new Will to include these new assets?

No, the new assets will fall under the residuary clause and be distributed accordingly. However, if you do not want the beneficiary named in the residuary estate to benefit from these new assets, then you need to write a new Will and name your preferred beneficiary for the new assets acquired after the date of the Will.

Why I need two witnesses when signing my Will?

Under the Law, two witnesses are required to be present when the testator signs his/her Will. The purpose of their presence is to confirm that the testator is of sound mind and aware that he is signing a Will.

Do my witnesses need to read or know the contents of my Will before they sign as my witnesses in my Will?

No, they need not read your Will or know the contents of your Will. They merely confirm that you are of sound mind and you sign the Will in their presence.

Do my witnesses need to appear in Court when my appointed Executor applies for the Grant of Probate when I pass on later?

No, They need not appear in Court. However, if there is a contest on the validity of the Will, the Court might need the witnesses to appear in Court to prove that the testator was of sound mind when he/she signed the Will.

What happens if both the witnesses cannot be located or have already passed away when the executor wants to apply for the Grant of Probate?

The Executor needs to file an affidavit saying that the witnesses can not be located or have already passed away and the Court might need an affidavit from a person who can verify the signature of the testator.

Is it true that the testator must state the reasons as to why he/she is not providing any gift to a particular family member of his/her family?

Yes, it is advisable to state the reasons why provisions have not been made for a particular family member, particularly for those family members falling under the Inheritance (Family Provision) Act 1971. This is to avoid any claims from these members under this Act.

I am single and both my parents have passed away. I have some property which I do not wish to will to any of my brothers and sisters due to some personal reasons. Do I need to state the reasons for not providing anything to them? Can I will my estate to anyone I like?

Yes, you can. You do not need to state the reason in your Will.

Who has a right to challenge a Will?

Anyone who has an interest in the estate of the deceased. Under the Inheritance (Family Provision) Act 1971, certain categories of people have a right to apply for reasonable provisions to be made for their maintenance if nothing or insufficient amount has been left to them under the Will. These people are:- 
  • The spouse of the deceased. 
  • A daughter who has not been married or is incapable of maintaining herself due to some mental or physical disability. 
  • A son who is incapable of maintaining himself due to some mental or physical disability.
  • An infant son.

I have withdrawn RM88,888.88 from my KWSP account to invest in some unit trust funds. If I pass on, will my nominee for my money in the KWSP account be able to receive my unit trust investment as well?

No, your nominee will not. These unit trust investments form part of your estate, not part of your KWSP account. You can will these investments in a Will.

If I will my house which is still under a mortgage loan to my son, will he have to settle the outstanding loan before inheriting the house?

Yes, he has to. Thus, it always advisable to purchase a Mortgage Reducing Term Assurance (MRTA) to pay for any outstanding loan should you pass on suddenly.

I am a foreigner, a domicile in Malaysia, can I write a Will and will away my assets I own in Malaysia to my family members who are non Malaysian?

Yes, you can.

If I inherit a house from my father when he pass on, do I need to pay government estate stamp duty before transferring the house to my name?

Yes, you do. Only a nominal amount as it is not according to the current market value of the house. The estate stamp duty was abolished on 1/11/1991.

Is it true that a Will cannot revoke an insurance policy with a nomination?

Yes, a Will cannot revoke any insurance policy with a nomination made under Section 166 Insurance Act 1996. Under Section 166 Insurance Act 1996 only the nomination of a spouse and /or children is allowed. However, the nomination of parent(s) as a beneficiary is allowed on condition that the policyholder is not married at the time of making such a nomination. Any nomination other than these nominations under Section 166 Insurance Act 1996 (i.e. spouse, children and parents) receives the money as an executor unless the benefit of the policy has been assigned to him/her.

Can a bankrupt be an executor or trustee?

No, as the Court may use its discretion to disallow the appointment.

Can I name a bankrupt as a beneficiary in my Will?

Not advisable, as the official assignee (OA) who has jurisdiction over all the bankrupt’s assets will have the access to such gift.

My friend is a major shareholder of a private limited company. Can he will away the house that is registered under his company which is utilized by him?

The company is a separate legal entity when it was incorporated. Thus, the house he is staying belong to the company not him. He cannot will the house away in his Will. However, he can will indirectly through willing away his holding of shares in the company to his beneficiary.

In what circumstances a Will will have to be re-written?

There are a few situations you should consider rewriting a Will:- 
  • Your Will is destroyed or lost. 
  • You want to change the proportion or percentage of your estate distribution. 
  • You want to change your beneficiary/beneficiaries, guardian(s), trustee(s) or executors. 
  • Over the years things and situations have changed and your Will does not reflect your wishes as to how your estate should be distributed.

I have only a house to will away to my son. Can I write a simple will myself just mentioning that I am giving my house to my son on my demise, signed by me and two witnesses? Is this simple will valid?

If you write a simple Will without mentioning the appointment of executor/trustee, a residuary clause and other essential clauses, your Will might become partial intestacy. Thus, it is always advisable to get a professional Will-writer to draft your Will to ensure it is a 100% valid Will.

I have a son, named John from my relationship with a man who has left me. Now, I am married to A. If I do not write a Will, will my son John be able to receive part of my estate under the Distribution Act 1958?

No, as he is not a legitimate child. You need to write a Will to include him.

I have two wives. One is legally married, the other not as Malaysian law does not allow polygamy. I have bought some insurance policies and named my second wife as the beneficiary. Do I need to mention this policy in my Will to prevent a contest?

Yes, despite the fact that she is a beneficiary she is merely an executor for the money paid out from the insurance policies. Your legal wife and children have a right over the money she receives. To protect her, state in the Will that this money is for her.

Can I will away my house to a friend of mine who is a foreigner? Can she later sell the property she receives under my Will and bring the sales proceeds back to her country?

Yes, she can.

What is pecuniary legacy?

It is defined under the Probate and Administration Act as including an annuity, a general legacy or a demonstrative legacy so far as it is not discharged out of the designated property, and any general direction by a testator for payment of money, including all duties free from which any advice, bequest or payment is made to take effect.

What is a Trust?

A Trust is an instrument where the creator of the Trust called the “Settlor” entrusts and transfers the ownership of his/her assets to another person called the “Trustee” under a Trust Deed. The Trustee then acts for the benefit of the named beneficiaries in the Trust Deed for a specific period of time.

Who is a Settlor?

Person who create a Trust – Living Trust

In what form can a Trust exist?

It can exists in three forms: – 
  1. Trust Deed (Inter vivos Trust or commonly known as Living Trust) 
  2. Testamentary Trust 
  3. Statutory Trust

What are the differences between a Trust Deed, a Testamentary Trust and a Statutory Trust?

Trust Deed 
  • The trust exists during the lifetime of the Settlor (maker of the living trust) and takes effect immediately when the Trust Deed is signed by the Settlor and the property transferred/conveyed to the Trustees. 
Testamentary Trust 
  • The trust exists in the Will and take effect on the death of the testator. 
Statutory Trust 
  • Here the trust is created by operation of the law automatically, 
  • e.g. Section 166 Insurance Act 1966 etc.

Can you let me know which type of Trust is revocable and which irrevocable?

A Testamentary Trust is always revocable before death as it is in a Will. Trust Deed can be in the form of revocable and irrevocable. It is revocable at anytime during the lifetime of the Settlor by executing a deed of revocation, while a Trust Deed can be irrevocable when it is set up and is generally creditor-proof.

What are the purposes of establishing a Living Trust?

  • Distributing wealth to avoid the application of Grant of Probate. 
  • Protecting wealth against wasteful beneficiaries and against creditors. 
  • Preserving assets for our great grandchildren. 
  • To cater for various family situations, e.g. Education & special maintenance expenses.

How does a Living Trust work?

The Trustee receives the assets from the Settlor and is legally obligated to hold the assets for the enjoyment of the beneficiaries during the trust period set by the Settlor according to the Trust Deed signed between the Settlor and the Trustee.

What are the job scope of a Protector in a Living Trust?

  1. As a watchdog 
  2. Advise on needs of beneficiaries 
  3. Recommend payment to beneficiaries using Letter of Wishes 
  4. Has the power to remove and replace Trustee

What are the benefits of a Living Trust?

  1. Distribute the way you want it to – e.g. you set goal to be achieve. 
  2. You decide who is to receive it – Just like Will, it’s your choice. 
  3. No fuss and instantly available – No lengthy procedure to adhere, Fund readily available for beneficiaries because it is in Trustee’ name. 
  4. Have a peace of mind – Once trust created and Protector appointed. 
  5. Get assets protected from creditors – After 5 years. 
  6. Not easily contested – Assets are no longer under your name.

What is an Insurance Trust?

An Insurance Trust is a trust funded by insurance policy. It is created through signing of a trust deed by the client (policyholder) and a Trust Corporation (the trustee). Then the client will absolutely assign the policy to the trustee. The trust deed contains instructions to the trustee on the manner of management and distribution of the insurance proceeds upon the client’s death or disability.

What is the purpose of setting up an Insurance Trust?

This is to ensure that the insurance proceeds are used to: 
  • Ensure immediate available usage of funds for your beneficiaries. 
  • Finance education, living and medical expenses of your loved ones. 
  • Pay to your beneficiaries in accordance to your wishes. 
  • Ensure the insurance proceeds are not subjected to claims of the estate by creditors and other claimants. 
  • Pay multiple beneficiaries, whether joint or substitute.

What are the objectives of setting up an Insurance Trust?

To ensure Beneficiaries’ do not squander their inheritance-providing staggered distribution during trust period. 
  • Providing for the 2nd family confidentially. 
  • Providing for certain family members secretly. 
  • Ensuring children with special needs are provided for. 
  • Avoid assets being claimed by spouse whom you want to avoid giving and wasteful or non-filial children. 
  • Protecting assets from being claimed by your ex-wife before any divorce proceedings starts.

What are the implications of Tax in a Trust?

All taxable income of the Trust is at 24%, regardless of who the Trustee is, whether it’s an individual or Trust Corporation. However, there are certain investment that generates income that is tax-exempted (for e.g. fixed deposits) and rebate can be claimed, such as Unit Trust and share dividends.

What are the major differences between a Living Trust and a Will?

Creditor protection? Yes, if it is irrevocable and after 5 years. No.
Can condition be stated? Yes. Yes.
Can I give to any person I choose, even if unborn? Yes. Yes.
Can additional assets be included? Yes, by doing a supplemental deed. Yes, by rewriting the Will.
Can the Trustee/Executor be removed? Yes, by doing a supplemental deed. Yes, by rewriting a new Will.
Can there be more than 1 creator? Yes. No. one Will, one Testator.
When is the actual transfer of property? During lifetime of Settlor. After death of Testator & GP is obtained.
When does it become effective? Upon transfer of property to Trustee. Upon the death of Testator.
Will assets be frozen upon death? No. Yes.
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