This is a continuation of the article ‘Why You Should Start Planning Your Will Today (Part 1)‘.
Below is the flow chart for the grant of probate in non-contentious probate proceedings:
What happens when you don’t have a will?
It is sometimes inevitable where one passes on without a will. When one passes away without a will, the person would be deemed to have passed away “intestate”.
In cases of intestacy or when there is no proving executor, an application for letters of administration must be made before the estate can be dealt with.
The application for letters of administration involves five main stages as shown below:
The deceased’s estate will be frozen up until the case is settled. Section 30 of the Probate and Administration Act 1959 (“PAA 1959“) states:
In granting administration the Court shall have regard to the rights of all persons interested in the estate of the deceased person or in the proceeds of sale thereof, and, in particular, administration with the will annexed may be granted to a devisee or legatee; and in regard to land settled previously to the death of the deceased, and not by his will, administration may be granted to the trustees of the settlement; and any such administration may be limited in any way the Court thinks fit.
…
Provided that, where the deceased died wholly intestate as to his estate, administration shall, if application is made for the purpose, be granted to some one or more of the persons interested in the residuary estate of the deceased, unless by reason of the insolvency of the estate or other special circumstances the Court thinks it expedient to grant administration to some other person. Result of grant of administration.
This also means there must be an appointment of Administrator which will be decided by the family members of the deceased and also signing of the Renunciation of Administration letter and to be witnesses by the Commissioner for Oaths.
There could be more than one person having such interest, in which case the procedural rules require all such persons to give their consent to the applicant before proceeding with the application of Letter of Administration (“LA”).
The application for letters of administration shall be made by ex parte originating summons in Form 6 of the Rules of Court 2012 to be supported with an affidavit setting out the information in Form 159 and any other information as the Registrar may require.
The death certificate of the deceased or any other evidence of death as the Registrar may approve must also be exhibited to the application. A notice of appointment of solicitors, a list of beneficiaries, assets and liabilities of the deceased and administration oath must also be filed together with the application.
The law provides that any person having an interest in the estate of the intestate may apply for an LA at the High Court or even at the Land Office through the District Land Administrator (“DLA“). Application to the DLA requires that the deceased’s estate/assets to be in total less than RM2 million and this will be by the Small Estate (Distribution) Act 1955 (“SEDA“).
When the estate/assets of the deceased is more than RM2 million, the Court will distribute according to the Distribution Act 1958 (“DA 1958”). The priority will be firstly to pay off debts or liabilities such as funeral expenses, creditors and unsecured creditors or outstanding debts. Lastly, it will be distributed according to the Distribution Act 1958 for West Malaysia and Sarawak and Succession Ordinance 1968 for Sabah.
Under Section 6 of DA 1958, if it is without a will, it will be distributed as below:
- Surviving Spouse (without children or parents) – get 100%
- Surviving Spouse and parent or parents – Spouse 50% and parent or parents 50%
- Surviving Spouse and children – Spouse 1/3 and Children 2/3
- Surviving Spouse, children and parent or parents – Spouse ¼, Children ½ and Parent or parents ¼
- Surviving children – to be divided equally amongst children
A date for a hearing before Registrar shall be fixed for the purpose of determining the representation. The applicant must be present in person during the hearing for the purpose of identification. Upon being satisfied that all the papers are in order, the Registrar will then grant the letters of administration to the administrator.
Administration Bond
Another requirement under the PAA 1959 is that in cases of administrations, the person to whom the grant is made or on whose behalf it is sealed, is required to give security for the due administration of the estate, unless the gross value of the estate does not exceed RM50,000, then no security is needed.
The security shall be given by bond with two sureties in the amount at which the estate within the jurisdiction is sworn, before any deduction of any debts due by the deceased.
Nevertheless, the Registrar has the discretion to allow the dispensation of such sureties in situation where the administrators experience difficulties and the creditors and the beneficiaries of the estate consent to such dispensation. Dispensation of such sureties normally is granted upon such consent being filed and it is to protect the interests of the beneficiaries and the creditors that the bond is executed.
When the beneficiary is at the age of minor
The appointment of a guardian must be made when the beneficiaries of the deceased’s estate are minors. Minor is someone who has not reached the age of majority, i.e 18 years old. The guardian will still need the consent from the minors in application such as to divest their interest.
Extraction of Grant
When all the requirements mentioned above have been complied with, the grant may be extracted. The extract is the key to administer the deceased’s estate and to distribute it amongst all the beneficiaries.
In a nutshell, the process of appointing an administrator is much more lengthy and time-consuming rather than having a will written and having an appointed executor. Furthermore, the deceased’s estate must be distributed according to Section 6 of the Distribution Act 1958 rather than assigning them to the specific beneficiaries he or she planned to.