What happens if a person passes on without leaving a valid will? Here, we will learn about how a person’s estate is distributed without a valid will.
The law of probate defines a “testator” as a person who has a valid will in place prior to the event of death. A person who dies without a valid will (known as “the Deceased”) would be deemed to have died intestate. A will is a document that sets forth one’s wishes regarding the distribution of assets and the rights to care for any minor children.
Do check this link if you want to know further about will: The 101 on Wills in Malaysia
For non-Muslims, distribution of assets in the event of intestacy is governed by the Distribution Act 1958 (“DA 1958”) whilst the distribution of assets for Muslims, person of aboriginal status, and residents of East Malaysia (Sabah and Sarawak) is governed under different sets of applicable laws.
So, what does the estate of the Deceased has to do in case of an intestacy under the Distribution Act 1958?
Step 1: Register the death of the Deceased
- Complete Form JPN.LM02 with the National Registration Department (NRD)/Jabatan Pendaftaran Negara Malaysia (JPN).
- Necessary documents that should accompany the Form are:
- Original identity card/personal identification of the deceased;
- Identity card/personal identification of the applicant;
- Proof of death documents; and
- Certificate by medical practitioner as to the cause of death.
- Do note that the registration must be done within 7 days from the date of death. Applicant will incur a processing fees of RM5.00 if the registration is done within 8 to 14 days from the date of death.
Step 2: Extracting Death Certificate
- Parents, spouse, children or legally adopted children and siblings can extract the death certificate.
- The requisite documents to bring along are:
- Form JPN.LM13 which is provided by Jabatan Pendaftaran Negara (JPN)/National Registration Department (NRD);
- Applicant’s original and copies of identity card/identification documents; and
- Marriage certificate (if applicable).
Step 3: Other Lodgments
- Depending on the amount of the estate, lodge a petition/application with:
- District land administrator;
- Amanah Rakyat Berhad (ARB)/Public Trust Corporation (PTC); or
- High Court.
- The necessary documents that needs to accompany the petition/application are death certificate, copies documenting list of assets, liabilities and beneficiaries.
Step 4: Hearing
- A hearing will be summoned once all the necessary documents are provided by the applicant.
- Assuming the land administrator, registrar or ARB is satisfied with their investigation during the hearing:
- The land administrator may then make a distribution order, which includes an order to settle all debts and liabilities of the deceased. The remainder will be distributed based on Distribution Act 1958 or based on the agreement that is entered and agreed upon by all beneficiaries;
- ARB will declare in writing to undertake and administer the estate; or
- The registrar will grant a letter of administration (LA) to the petitioner.
Step 5: Post Hearing
This applies only to instances in the High Court where a letter of administration is granted by the registrar. The petitioner/applicant, who will most likely be appointed as administrator, is to extract the LA and proceed to settle existing debts and liabilities before distributing the estate in accordance to the Distribution Act (Section 6 Distribution Act 1965).
What Happens if there are Beneficiaries who are Minors?
A minor is a person who is below 18 years of age (Section 2 Age of Majority Act 1971).
In situations that involve minor as beneficiary, a guardian ad litem will be appointed to represent the minor. The guardian will be authorized to give consent on behalf of the minor, particularly in situations where the interest/benefit of the minor is divested. The consent given must benefit the minor (Re Lua Kin Suai & Anor  5 CLJ 549).
Protection of Beneficiaries from Unscrupulous Administrators
In order to protect the interest of estate beneficiaries, the High Court will normally order the administrator(s) to give security by bonds with two sureties (Section 35(2) Probate and Administration Act 1959). The amount will be equivalent to the value of the estate (Practice Note 3 of 1946), unless consent by the beneficiaries as to the dispensation of security is obtained and filed with the High Court.
The processes of estate distribution in a case of intestacy will inevitably take a longer time as compared to situations where there exist a valid will.
Having a valid will drafted is advisable so as to ease the delay in estate distribution upon one’s passing, and to ensure that such distribution is done in accordance to the testator’s true intentions.