Life is all about good times, bad times and those in-between times when you are not really sure which way it will go. Life is very unpredictable and we do not know what can happen to us or our loved ones the next minute. Therefore, having an estate plan is among the most important things you can do for your loved ones. In Malaysia, there are three methods to plan your estate, i.e. writing a will, setting up a private trust, and establishing a private family foundation. Whereas, the most basic step in estate planning is writing a Will.
The benefits of having a Will are as follows ：
1. Plan your estate in advance and distribute it to the people that you love the most.
Having a Will allows you to distribute your estate to any persons or organizations that are in your preferences. An estate without a Will shall be distributed to immediate family members according to the law under Distribution Act 1958. Should the deceased be survived by a spouse, children, and parents, 1/4 of the estate will go to the parents, 1/4 of the estate will go to the spouse, and 2/4 of the estate will be divided equally among the children.
2. Probate proceeding is faster and less expensive than the application for Letter of Administration
If there is a will, the executor is required to apply for Probate at the High Court; if there is no will, the family members will have to apply for Letter of Administration (LA) at the High Court. To apply for an LA, two sureties who have sufficient assets within the jurisdiction comparable to the amount of the deceased’s estate shall sign an administration bond as security for the administration of estate. However, the court may waive the bond requirement in the event that all the beneficiaries are agreeable for such waiver. If the beneficiaries of the estate do not wish to distribute the immovable property according to the law under Distribution Act, they are required to apply to the High Court for a vesting order to proceed with the transmission of the immovable property.
3. You can appoint an executor in your will to administer your estate and a guardian to uphold the welfare of your children.
In your Will, you can appoint your beneficiary to be the executor/trustee to distribute your estate according to the contents of the Will. You can also choose a trust company or government agency to be your trustee. If the deceased leaves behind children, you can appoint a guardian to take care of their welfare. If there is no Will, upon the application of beneficiaries of the estate, the Court or land office officer may appoint them, who are the immediate family members of the deceased to be the administrators of the estate. However, these immediate family members may not be the most desirable and appropriate executors of the estate.
Can the Court override your Will?
Under the Inheritance (Family Provisions) Act 1971, in the event that the court is of the view that your Will does not make reasonable provision for the maintenance of the following:-
（1）Your spouse;
（2）an unmarried daughter;
（3）an infant son or;
（4）a child who is unable to support himself or herself due to some mental or physical disabilities.
The court has the authority to make a reasonable distribution from your estate to the above dependants. In deciding such application, the Court will have to take into account to all the circumstances, including the size of the estate, the interests of the named beneficiaries of the estate, the assets and income of the dependant and the conduct of the dependant to the deceased.
Conclusion
Making a Will may not be the simplest of task but it is an essential one in estate planning. If you have any questions on estate planning, please contact us by clicking any of the floating buttons herein.
This article is written by Teo Kai Chuan, founder of Messrs Teo & Lee
This article is for general information only and does not constitute legal advice. Legal advice should be sought about your specific circumstances.
