If you die intestate:-
• Your assets will be distributed according to the formulas set out in the Distribution Act 1958, and not according to your wishes or the needs of your family members;
• The court will appoint an Administrator administer your estate, and this may give rise to disputes between family members or beneficiaries on who should be appointed;
• The court will appoint a guardian for your children who are minors, and the person appointed may not be of your preference; or
• The distribution process will take longer and cost more, ordinarily requiring a bond and the appointment of 2 sureties to guarantee the proper administration of the estate, as well as further court orders to effect the transfer of real property.
Section 6 of the Distribution Act 1958 sets out various scenarios for intestacy and provides a fixed formula for the distribution of the person’s assets. The following are some examples:->
• Leaving a spouse, issue and parents: spouse ¼ issue ½ parents ¼;>
• Leaving a spouse and parents but no issue: spouse ½ parents ½;>
• Leaving a spouse and issue but no parents: spouse ⅓ issue ⅔;>
• Leaving issue and parents but no spouse: issue ⅔ parents ⅓;>
• Leaving no spouse, issue or parents, then the following persons are entitled in accordance of priority: brothers and sisters; grandparents; uncles and aunts; great grandparents; great uncles and aunts; government.
Once executed, your will is valid until it is replaced by a new will, revoked in writing or destroyed intentionally.
You can appoint any adult (18 years or older) to act as your executor and trustee. You can appoint between 1 to 4 executors to jointly administer your estate. You may also name persons to step into the shoes of your appointed executor(s) in the event any of them predecease you or renounce their executorship.
Alternatively, you can appoint a trust company to act as your executor and trustee. The decision on whether to appoint a friend or relative or a trust company will depend on the size and nature of your estate as well as the complexity of your will and testamentary trust. Your friend or relative may not have the necessary education or experience to properly administer the estate. Alternatively, you may feel that your friend or relative may not be sufficiently trustworthy or impartial to your wishes. In such circumstances, you may wish to consider appointing a trust company to act as your executor and trustee.
Ideally, your will should deal with all your assets, whether specifically or collectively. You may consider the following:
• Real property: land and buildings, residential, commercial, industrial or agricultural properties;
• Personal property: cash, bank balances, shares, transferrable memberships, vehicles, movable furniture, clothing, jewellery, books, camera equipment, computer equipment, etc.
• Intellectual property: copyrights, patents, designs;
• Trust property: property which is being held by a trustee on trust for your benefit;
• Future benefits: assets which you expect to receive in the future, including an inheritance.
Your will should include a residuary clause which deals with the distribution of all your assets which are not specifically covered by any other clause in your will. If you want to specifically deal with a new acquisition in your will, you will either have to execute a new will or a codicil.
Benefits under any insurance policy will be paid to the persons nominated by you under the policy. Your will cannot override nominations under the insurance policy.
Payments from your Employees Provident Fund (EPF) will also be made in accordance with your nominations registered with EPF. However in circumstances where EPF has no record of your nominations, your EPF contributions will be paid in accordance with your will.
Yes, your will can include with both assets within Malaysia and abroad. In order to enforce your will overseas, your executor may need to re-seal the grant of probate in a court of the foreign jurisdiction.
However, it is better to obtain specific legal advice for foreign real property because the law governing the willing of real property may vary from country to country. In certain circumstances, it may be advisable to write another will dealing specifically with your foreign property.