What is Grant of Probate and Letter of Administration in Malaysia
What is Grant of Probate and Letter of Administration in Malaysia?
If a person dies leaving assets in Malaysia, it is common that the next of kin (or family members) will have to apply for the relevant grant of representation from the High Court of Malaya in order to deal with the “Estate” of the deceased. Firstly, “Estate” can be categorized into three general types:
Where the deceased died leaving a valid Will.
Where the deceased died without leaving a valid Will.
c. Partial Intestacy
Where the deceased died leaving a valid Will but it does not dispose of his entire estate or there is no proving executor.
Next, the common types of grants of representation in Malaysia are listed below:
1. Grant of Probate
The Grant of Probate will be issued by the High Court when there is a valid Will and a proving Executor, who is able, willing and has the capacity to administer the estate left behind. Probate will be granted to the named Executor(s) in the Will (with minimum 1 person up to a maximum of 4 persons acting jointly). Generally, this is the most time and cost effective grant of representation amongst all. Unlike Letter of Administration, there is no surety required for a Grant of Probate. Further, the estate will be distributed in accordance with the terms in the Will upon extraction of the Grant of Probate, so no application for the distribution order is required.
2. Grant of Letters of Administration with Will Annexed
Where the deceased left behind a Will but without a proving Executor (i.e. no Executor appointed by the Will or the nominated Executor is not willing or legally incapable to act due to age, insanity, or predeceased the testator or died before obtaining probate or before having administered all the estate), the Letter of Administration with Will Annexed will be granted to such person as the Court deems fit subject to the ranking order set out in Section 16 of the Probate and Administration Act 1959 (hereinafter referred to as the “PAA 1959”):
i) a universal or residuary legatee;
ii) a personal representative of a deceased universal or residuary legatee;
iii) such person being beneficiary under the Will, as would have been entitled to a grant of Letter of Administration if the deceased had died intestate;
iv) a legatee having a beneficial interest; and
v) a creditor of the deceased.
3. Grant of Letters of Administration
Letter of Administration will be granted where the deceased died intestate, i.e. without a Will. Section 30 of the PAA 1959 provides that the Letter of Administration shall be granted by the Court to one or more (but not more than 4) persons interested in the residuary estate of the deceased.
4. Letters of Administration De Bonis Non
In the event Probate or Letter of Administration has been extracted but the Executor or Administrator died, absconded or is incapacitated prior to completion of the administration, the person next entitled to the grant of representation can apply to the Court for such Letter of Administration De Bonis Non in order to finalise the administration of the estate.
5. Resealed Grant
If Probate or Letter of Administration has been granted by a Court of Probate in any part of the Commonwealth (for example, the United Kingdom and Singapore), the Probate or Letter of Administration so granted can be resealed with the seal of the High Court of Malaya. Thereupon it will have the same effect and force, and have the same operation in Malaysia, as if it were a grant made by the High Court of Malaya.
Last but not least, please be reminded that if a person deals with the estate without lawful authority (i.e. without a grant), then such person or his agent will be liable and responsible for any loss to the estate.
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