Let’s begin by defining what a probate is; it is basically a grant under the seal of a Court of Law that authorizes the executor or executors that have been named in the Will, in order for them to administer the testator’s estate. You should take note, however that a probate shall not be granted to more than 4 person in with regards to the same piece of property.
When you want to appoint an executor there are certain issues that you may want to take into consideration and they include;
That the executor that you intend to appoint shall be willing and have the capability of carrying out the tasks that you have appointed them. So it is very important that you get the consent from the person first before you want to appoint anyone.
If you own an estate that is large and includes shareholdings, then it is best advisable that you consider appointing someone that has both financial as well as management skills. Not only will they help you in administering the assets but they can apply their expertise to your properties such as providing directions on investments or whether it would be in the best of interest to continue to business.
The executor that you appoint should also be at least 21 years of age.
You should also be able to trust them with your assets as they will be the ones that who shall administer the estate and the last thing you want are for them to misappropriate your assets.
You will have the option of appointing several executors, but you should take note that the probate will either be granted to them at different times for each of the executors or simultaneously.
Despite the fact the executor that you have chosen is entitled to representation, they still have the right to renounce the probate the Will along with the administration. If it is deemed by the Court of Law that the renunciation will be for the benefits of the estate, those that are interested under the Will or intestacy then the Court will grant the application of the executor. If a person who has been appointed as the executor by the Will has renounced the probate of the Will as well as the administration, or have cited to take out the probate of the Will but does not appear to the citation then the rights of that particular person in terms of being appointed as the executor will cease. As for the representation and the administration of your estate, they will be devolved and it will be deemed as if you had never appointed an executor in the first place. The renunciation can be done either orally by the executor on the hearing of any of the petition or probate action, or it can also be done in writing by the executor while being attested by an advocate or basically anyone else before whom an affidavit may be sworn.
After you have appointed someone as an executor, you should make sure that you inform your family members about it. This is because they will be able to inform the executor accordingly upon your death and this will also avoid the delay in the administration of the estate. Once you have passed away, the executor will then locate your Will and apply for a Grant of Probate at the court.
Your family members shall be able to seek for reimbursement once the funeral arrangements are done. It would be helpful to the executor if you prepare an assets inventory that lists out all the assets that you own. This is because you may not have included all that assets that you own in the Will, which means that the executor will have to write to the various financial institutions and government departments so that the executor can determine the actual amount of your estate.
Even before the Grant of Probate has been issued by the Court, the executor will have the power to act by virtue of the Will to act. The executor in this case can pay or release debts and transfer property or assets according to the Will even while the actual value of the estate is being determined. The Will itself will become public record once the Grant of Probate has been issued by the Court and they will also retain the original copy of the Will.
Once the Grant of Probate has been issued, it will be given together with a copy of the Will to the executor. All of your assets and property shall then be passed onto the executor that you have appointed who will administer and distribute the estate according to the context of the Will.
You should take note that before the assets can be distributed to the beneficiaries, your debts, funeral expenses, administration expenses, liabilities, testamentary or any other kind of expenses will have to be paid for first. If you have a large estate, then it would be advisable that your executor advertise in the Government Gazette or leading newspapers for a certain amount of time in order for the creditors to submit their claims within 2 months.
Before your executor starts to distribute the estate to the beneficiaries, the executor will then prepare and submit the accounts of the estate to the beneficiaries for them to check. If there a minors involved then the administration will consider whether to set up a trust corporation for them.
In the situation where the probate of the Will and administration has been granted to more than 1 executor or administrator and one of the executors that you have appointed passes away, then the representation of the estate shall accrue to the surviving administrators or executors, where the beneficiary involves minors.
A codicil is basically an addition to a Will. According to Section 15 of the Probate and Administration Act 1959, after the probate has been granted and a codicil of the Will is propounded, then a separate probate may be granted on the codicil. However if the codicil has expressly or impliedly revokes the appointment of any of the executor to whom the probate has been granted to, then the particular probate shall be revoked and a new probate shall be granted.
In such circumstances where you do not have an executor or;
If there are no surviving executor
The executor that you have appointed does not appear in court to extract the probate
There is no executor that has been appointed in the Will
The executor that you have appointed has renounced
The executor dies before they are able to obtain the probate
Then the Court may grant a letter of administration in the Will which shall annex the person who will be deemed the fittest to administer the estate. Nevertheless, the priority of the right to the grant shall be as follows;
The recipient of the estate that has been named in the Will
A personal representative of the deceased recipient of the estate that has been left in the Will.
A person that has been named as the beneficiary under the Will would then be entitled to the grant of letter of the administration in you had died intestate.
The recipient of the assets named in the Will that has a beneficial interest; and
If the executor that you have appointed or any other person whom the letters of administration with the Will has annexed to administer the estates is not in Malaysia at the time of your death and there is also no executor in Malaysia that is willing to act, then the letter of administration with the Will annexed may be granted to a duly authorized attorney of the absent executor limited until the executor obtains the probate for themselves.
According to Section 25 of the Probate and Administration Act 1959, if your Will has been lost or cannot be found after you have passed away and the Will for any sufficient reason cannot be produced, then;
If a copy of the draft has been produced and it appears that the copy of the draft is identical in terms of the original one, then the probate may be granted to the copy of that particular draft. However you should take note that it will only be limited until the original copy of the Will is admitted to probate.
If there is no draft or copy of the Will can be produced, then the probate may still be granted according to the contents of the Will. However the contents would need to be properly established first, limited to the terms that were mentioned earlier, unless of course the Will is a privileged Will and not in writing.
According to Section 26 of the Probate and Administration Act 1959, if the will was destroyed without the consent from the testator, then the probate can still be granted. However the terms go for the same with the ones mentioned earlier, in which you would need to produce a draft or a copy of the contents to sufficiently establish your claims in this regard.
After the expiration of 6 months from the date of the death of the deceased person and no application of the letters of administration has been made to the estate then the Court may grant the letter of administration with or without the Will annexed to a trust corporation or anyone else that the Court sees fit. According to Section 81 of the Probate and Administration Act 1959, the letter of administration can also be granted with or without the Will annexed by the Courts to a trust corporation or anyone else that they consider fit under the following circumstance;
After the death of the last surviving executor or administrator of the deceased person’s estate and 6 months have already elapsed and there has still been no application for the representation of that particular estate.
If the application for the probate has already been made within the 6 month grace period from the date of the death of the deceased person, however the application as not been proceeded within the specified time or has been withdrawn or denied.
The receiver has already been appointed but it appears that the appointment would not be considered as sufficient protection for the estate.
You may enter a general caveat in the prescribed from if you think that you have legal right in the estate or as a matter of fact this goes for anyone else that thinks that they have the legal right in claiming of a particular estate. Then they should make the application at any time after the death of the deceased person but it should be done before the representation is granted to the estate. Once the general caveat has been entered, there shall be no representation made without providing notice to you in with regards to this matter. Also, the representation shall not be made until you have been given the opportunity to contest to the rights of any petitioner to the representation.
The first thing that you would need to do in order for you to obtain the probate are to get the Death Certificate of the deceased person from the Registration Department of Births and Deaths. After the Will has been obtained and its validity shall be verified against the Wills Act 1959 where the certified copy of the Death Certificate and Will must be made.
The executor that has been appointed in the Will shall be required to petition for the probate in Form 168 that has been verified on an oath in an affidavit. Form 169 shall be used if the executor that is applying for the probate is the substitute for the original executor and if there is any minor involved then it should be clearly stated in the form. If there is a delay in the application for the Grant of Probate (after 3 years from the date of the death of the deceased), then the reason must be stated in the application.
The Registrar will required an affidavit from the attesting witnesses or any other person that was present at the time of the execution of the Will, if they are not accessible then it can be any person that can attest that the signature contained in the Will is that of the testator, especially when the Will does not contain an attestation clause.
The petition shall then be filed together along with the certified copy of the Will, the original copy of the Will as well as the Death Certificate. After the probate has been granted, the executor will then extract the probate and provide the Exemption of Estate Duty or the Certificate of Payment.
The next step in the executor responsibilities is to collect all the assets and provide valid receipt to all the payments of the debts that were due to the testator’s estate. They will also need to advertise in leading newspapers for a specific period so that the testator’s creditors will be informed about the death of the testator as well as submit their claims within 2 months. After the expiration date for the advertisement in the newspaper, the executor will then proceed to pay the debts of the testator.
Once all the debt’s of the testator has been settled, the executor will begin to distribute the remainder of the estate to the beneficiaries that have been named in the Will as well as in accordance with the terms that have been stated in the Will.
As for the movable property, the executor will deliver the said property to the particular person and request acknowledgment where they received the item. If the property is immovable, the executor shall have to apply for the transmission of the particular piece of property to the executor who will then vest the property to the beneficiary.
Once that is settled, the executor will begin to prepare the accounts of the distribution. As you can see, the executors have a lot of responsibilities to carry out upon the death of the testator. So it is advisable that you look for someone that is able to carry out all the tasks that were mentioned earlier and not only that they will also need to be trustworthy especially if they are handling large estates. The last thing you want is for your family members to track down the executor while dealing with your death as the same time.