When it comes to asset preservation and distribution, the legal steps to be taken depends on whether one is alive or has passed away.
- During lifetime
In Malaysia, anyone; as long as he/she is at least 18 years old, he/she can make a will. A will is an instrument carrying the intention of the maker which will be given effect after he passes away. The law governing wills is enacted under Wills Act 1959 which applies to all residents in Malaysia, except ones professing religion of Muslim,
- After lifetime
After one passed away, he will leave assets behind for his loved ones. There are two steps involved to distribute the assets; firstly application to court for order to distribute and secondly, on how the distribution is done. The primary laws applicable here are Probate Act 1959 and Small Estate Distribution Act 1955 (amended in 2008).
Common scenarios faced by You
Clients are confused as to whether they need to engage a lawyer to write a will. With the advent of electronic exposure, there are some online banking facilities offering services for writing a will. It is unadvisable as when it comes to expressing intentions to distribute assets, the recommended option will be to engage a lawyer.
Clients face few problems when it comes to distribution of assets. Firstly, they are confused as to whether the deceased left a will. Secondly, when there is a will, they are uncertain as to whether it is a valid will. Thirdly, there are some situations where two or more wills are made by the deceased at different time and express different intention.
Solutions for You
Under our law, there is no requirement to engage a lawyer or any institution to make a will. As long as the will fulfils requirement set under Wills Act 1959, it stands valid and is enforceable. The basic requirements to constitute a will are as follow:
- it must be in writing;
- it must be signed by testator(one who makes the will) in presence of 2 witnesses;
- testator must be at least 18 years old
As mentioned above, the first step is application to court for distribution. The primary factor to consider is whether the deceased left a valid will. Assuming there is, the application is for grant of probate by the administrator. Otherwise, the administrator has to apply for grant of letter of administration.
As to on how to distribute the assets of the deceased, the primary factor depends on whether there is a valid will. When there is a will, distribution of assets are done in accordance to terms expressed in will. When there is no will, the distribution is done in accordance with law; i.e. Small Estate Distribution Act 1955.
The contrasting effect is when distribution done in accordance to law, beneficiaries (person receiving the assets) and entitled shares had been specified under the law regardless of intention of deceased; subject to him leaving a valid will.