A will is a document which contains a person’s intentions and wishes on the distribution of his or her assets on death. Drafting of a will is highly encouraged if you have property(ies) registered under your name and you have the well-being of your beneficiaries to take care of after your death.
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Frequently Asked Questions
A will is a document which contains a person’s intentions and wishes on the distribution of his or her assets on death.
Section 2 of the Wills Act 1959 defines a Will in technical terms as “a declaration intended to have legal effect of the intentions of a testator with respect to his property or other matters which he desires to be carried into effect after his death and includes a testament, a codicil and an appointment by will or by writing in the nature of a will in exercise of a power and also a disposition by will or testament of the guardianship, custody and tuition of any child.”
Drafting of a will is highly encouraged if you have property(ies) registered under your name and you have the well-being of your beneficiaries to take care of after your death (for e.g. minor children, spouse and old age parents).
Among other advantages, few main advantages of having a will are as follows:-
- give your assets to your designated loved ones (beneficiaries);
- appoint someone you trust to administer and manage your estate (trustee and executor);
- appoint someone you trust to be the guardian of your minor children;
- avoid family disputes over assets;
- avoid a lengthy inheritance process;
- substantially reduce the time and money to be spent in administering your estate;
- express your wishes for your funeral arrangements.
If you die without a will, your assets will be distributed to your beneficiaries in accordance to the formula sets out in the Distribution Act 1958 as per the following tables unless you are a Muslim in West Malaysia and Sarawak or is a native of Sarawak and if you are in the State of Sabah, then the Intestate Ordinance 1960 will apply:-
|Intestate dies leaving surviving:||Distribution of Estate|
|Spouse and Parents||Spouse ½ Parents ½|
|Spouse and Issue||Spouse ⅓ Issue ⅔|
|Parents and Issue||Parents ⅓ Issue ⅔|
|Spouse, Issue and Parents||Spouse ¼ Parents ¼ Issue ½|
|No Spouse, Issue or Parents|
The following person(s), related to the intestate and alive at the death of the intestate, in the following order:
To make a valid will, you must:
- be at least 18 years old;
- be of sound mind;
- have your will in writing;
- have signed your will;
- have your signing witnessed by at least 2 witnesses who will then sign in your presence and in the presence of each other.
You should keep your original will in a safe place. However, it is important that your executor knows where to find and retrieve your original will.
As a general rule, the courts will require your original will before allowing a grant of probate. However, a copy of your will can be accepted if it can be proven that the original will was lost or destroyed without your intention to revoke the will.
Generally, yes. Your executor may apply to the High Court to re-seal the grant of probate in Malaysia. Thereafter, your executor may deal with and distribute your assets in Malaysia according to your will.
No, your will does not need to be stamped to be effective.
Your will is valid until it is replaced by a new will, revoked in writing or destroyed intentionally. Your will will automatically be revoked if you marry or remarry, or convert to Muslim. You may consider rewriting your will in any of the following circumstances:
- Marriage, separation, divorce or remarriage;
- Birth or adoption of a child;
- Death of a family member or other beneficiary of your estate;
- When you want to change your beneficiaries or the proportion of distribution;
- When your appointed executor, trustee or guardian dies or is unable to act as such;
- When you decide to name someone else as your executor, trustee or guardian;
When the size of your estate changes significantly.
No, a beneficiary will not be eligible to receive any benefit from the estate if he/she or his/her spouse signs as a witness to the will.
The role of your executor is to ensure that your wishes in your will are fulfilled. This will involve your executor (1) locating your will, (2) applying to court for a grant of probate, (3) calling in your assets, (4) paying off your liabilities, (5) distributing your assets according to your will, and (6) preparing a statement of account.
When your executor takes charge of your assets, he will also take the role of a trustee holding your assets on trust for your beneficiaries until the assets are fully distributed. Your trustee will be subject to the responsibilities imposed by the Trustee Act 1949.
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 alternative executor(s) in the event any of appointed executor(s) predecease you or not capable or unwilling to act.
Yes, if among your beneficiaries you can find someone whom you can entrust your estate to and whom you believe is capable of administering and managing your estate. In fact most of the people choose their executor(s) from their beneficiaries.
Ideally, your will should deal with all your assets. You may use the following non-exhaustive list as reference:
- Real property: land and buildings, residential, commercial, industrial or agricultural properties;
- Personal property: cash (in hand/banks), shares in business(es), stocks, transferrable memberships, vehicles, antiques, clothing, jewellery, books etc.;
- Intellectual property: copyrights, patents, designs;
- Trust property: property which is being held by a trustee on trust for your benefit.
Some assets, such as a life insurance policy, that name a beneficiary are not part of the Will and must go to the designated person named or nominated in the insurance 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.
You are not required to specifically list all your assets in your will; it is sufficient to refer to your assets generally, e.g. “all my real property” or “all my bank accounts”. However, it is advisable to state the particulars of all your existing properties as this will make it much easier for your executor to identify and call in your assets.
Your will should include a residuary clause which covers all your other assets which are not specifically covered in your will. You do not have to get your will amended immediately unless you feel that the assets you have left out are particularly important and needs to be specifically dealt with in your will.
Yes, your will can include your foreign property. However, it is advisable to have a separate will to deal with your foreign property as the law governing the willing of real property vary from country to country.
You should specify the appointment of a guardian in your will if you have children below 18 years. The appointment of a guardian is necessary if both parents die when their children are under 18 years.
A will may be challenged on the grounds that the contents have been altered, your signature is forged, the execution was not properly witnessed or that you were of unsound mind or under undue influence when you made your will.
If you plan to disinherit a family member, make sure you name the person in your will and the reasons behind your decision, if you so choose. Giving a justifiable reason for the exclusion will minimize the risk of your will being successfully challenged.
No. Since the abolishment of estate duty in 1991, the estate of any person who dies on or after 1 November 1991 will not be subject to any estate duty or inheritance tax in Malaysia.