ALL ABOUT WILL

What is a will ?
A legal document in which you declare your wishes for your loved ones and how to distribute your assets after you pass on.

Why do i Need a Will ?

Without a will, your assets could be more troublesome than beneficial to your family at a time when they are most vulnerable. They could become involved in a long drawn process with the law or a complex legal battle. Without a will, the law will decide who your beneficiaries should be. You should never assume that your assets would go to the person you want to benefit. Leave nothing to chance. Make a will and the law will protect your wishes.

What Happen when a person dies?

The legal administration process in Malaysia is applicable to all Malaysian and foreigners domiciled in Malaysia who own movable and immovable assets in Malaysia (Please refer to Distribution Act 1958) When someone passed on, under the Malaysian law his/her estate will be FROZEN. to unlock the frozen estate, the following are the legal adminstration process: A) With a Will (Die testate) - Apply Grant of Probate (GP) The Executor appointed in the Will need to apply GP at the High Court when the asset is worth more than 600K. The GP could be obtained within 3 months to 1 year dependent on the size of the estate. Once the GP is extracted and all debts of the deceased settled, the Executor will distribute the estate according to the Will. B) Without A Will (Die intestate) - Apply Letter of Administration (LA) The legal beneficiaries of the deceased need to apply LA. One or two administrator(s) will be appointed among the legal beneficiaries for this purpose. Upon extraction of LA, the administrator(s) will distribute the net assets of the deceased (after settling all his debts) according to the Distribution Act 1958 (As amended in 1997). The deceased's family may need to fulfill certain requirements e.g. looking for 2 guarantors; the appointment of the administrator(s) need 100% consent from all legal beneficiaries; appointment of guardians for minors who will in-turn give consent to the appointment of administrator(s) etc, thus, this process could take 2 to 8 years and in between, family contentions could occur.

Without a valid Will, Firstly the deceased's assets are frozen. His family, spouse and children might face cash flow problems while waiting for the extraction of LA. With the LA, all his assets will be distributed according to the Distribution Act 1958 (As amended as at 1997). He lost the right to appoint executor, trustee and guardian of his choice. His children's welfare may not be taken care of by the right person. As Letters of administration (LA) is required, to begin applying for Letters of Administration (LA) at the High Court, it requires:

(a) Appointment of one or two administrator(s) 100% written consent are required from all lawful beneficiaries under the Distribution Act 1958 (amended in 1997) for the appointment of the administrator(s). The administrator(s) who is chosen may not be the most suitable person to administer the estate. When there are minor beneficiaries, then, two administrators will be required before the court issues the LA. Guardians are appointed to decides for the minors as minor can not given written consent. (b) Two Sureties Required Qualified guarantors are persons who has net worth value more or equivalent to the gross estate value of the deceased's. The security shall be by bond in the amount equivalent to the GROSS VALUE of the estate of the deceased. More time required to fulfill the requirements for the application of LA. More legal fees involved. If both the husband and wife predeceased, the court will appoint guardian for the minor children. Family contention arises. Family members may be fighting in the court to acquire more assets. Under the Distribution Act, if there are surviving parents to the deceased, these parents received 1/4 share of the estate. Problems will arise if these parents whom are much older die later. Their entitlements will in turn goes to their children, this complicate the distribution as there are more claimants.(Please refers to the chart above)

And, with a valid Will, You provide for your beneficiaries in the way you choose rather than letting the laws decides. You exercise your RIGHT under the Law to appoint people of your choice to administer your estate and carry out your wishes, ensure and safe guard the interest of those you love and care. Your select your preferred executor whom will do a good job when you passed on. You can also provide support in monetary form or in kinds to other selected family members e.g. stay-in partner, aging uncles, dependents, friends, step-children, "god-children", church, temple or any charity organizations etc. All these persons have no provisions under the law.

You appoint Trustees and Guardian of your choice for your infant children in the event of your spouse predeceasing you or if both of you were to pass on. These are trustworthy persons that will ensure your children's welfare are in good hands. No sureties are required for application of Grant of Probate (GP). It costs less in term of legal fees and less time to apply for a Grant of Probate (GP) than Letter of Administration (LA). You would avoid family dispute. Family members who depend on you can avoid facing financial hardships.

Problems & difficulties faced by the family when applying for letter of administration (LA)
1. Might required two guarantors Family members might have difficulty to look for the qualified guarantors. As the guarantor must have security equivalent to the gross value of the deceased's estate. This result in delay in estate administration. Beneficiaries might take longer time to receive their shares of the estate. The delay might result in estate shrinkage and beneficiaries might receive less due to the shrinkage in estate.

2. Conflict & problems faced over the appointment of administrator(s)

The Court requires 1 or 2 administrator(s), selected from the legal beneficiaries. Family contention arises over the right to be appointed as the Administrator(s). There is risk of the Administrator(s) abscond the estate. Appointed Administrator(s) may lack of competent to perform to duty. Family might not able to obtain the 100% consent from all legal beneficiaries required. When there is minor beneficiaries, how to appoint Administrator(s)?

3. Need more Legal Fees to apply LA

To apply for LA, the family members might receive less due to the higher legal cost incurred.

4. Financial difficulties faced by the family as it takes more time to apply LA

Normally it takes 2 to 5 years OR MORE, thus dependents might faced cash flow problems as the deceased's bank account are frozen.

Distributions under the Law might results in a change in ownership in businesses/companiesof the deceased.

5. The Law takes over your 'RIGHT' to name your beneficiaries

As there is no Will, The Law decides whom your beneficiaries are and in what manner. The distribution may not be your choice, and you lost your Right to distribute your hard earned assets.

Under the Law, there is no provisions for partner, stepchildren, illegitimate children, relatives whom you support.

Your spouse is not fully protected (as most properties are in joint name) as she is not a major beneficiary under the Act.

6. The Law takes over your 'RIGHT' to appoint trustees and guardian for your minor children

If both parents pre-deceased, the Court decides who is the trustees & guardian for your minor children. The appointed person might not be competent to perform the job. Welfare of minor might not be taken care of. Misused of fund by the appointed Trustee might happen. You lost your Right to choose your preferred trustees/guardian.

Why it is important to have a will?

Do you Know?
1. Do you Know? That when some one passed on, all his assets including his/her banks account (joint/sole name), CDs share accounts, properties, private limited shares, business will be FROZEN?

2. Do You to know... On 21/01/2007 reported in major newspapers, our Deputy Prime Minister said there is a total ofRM40 billion worth of unclaimed cash and assets left by the dead. To avoid the problem, he urged fellow countryman to write a Will to avoid facing problems of claiming FROZEN assets of the deceased (please refer to NEW STRAITS TIMES, SIN CHEW DAILY, dated 22/1/07).

3. Have you ever wondered? That if both parents were to go together, who will step into the parents position to take care of children education and welfares? Who will be the guardian?

4. You may not know... That without a Will, your loved ones might have to wait for years; running around searching for the required two guarantors. You lost your RIGHT to appoint your choice of executor to administer your estate & your trusted trustees for your minor children.

5. You ought to know... That without a Will, your assets will be distributed in accordance to the Distribution Act 1958(As amended in 1997). Under the Act, your assets will be divided between your surviving spouse, children and parent(s) in a certain proportion (1/4, 1/2, 1/4). More problems arise if your parent(s) pass on soon after you, your assets may be subdivided further between your brothers and sisters etc. Result? There will be many more additional claimants!

6. Have you ever wondered? What will happen to your loved ones / dependents if they are unable to receive your assets in the shortest possible time after your demise?

7. You may think... That you do not have much to give away. The truth is writing a Will has little to do with your net worth but everything to do with leaving a legacy of love and care.

8. Do you know? 90% of your assets are without beneficiary(ies) & 90% of eligible Malaysian do not have a Will? Thus, there is an urgent need to write a Will. If not, the Law will decide who your beneficiaries / trustee / guardian, NOT YOU! Assets may become FROZEN AND UNCLAIMED under the Law. Why leave it to the law when you can decide in a Will?

9. Have you ever wondered? WHY you will make sure you have beneficiary for your insurance & Employees Provident Fund (EPF) payouts but there is no beneficiary for your assets like house, bank a/c, car, land, shares etc?

If you want to protect your loved ones & your hard earned assets; to avoid any possible family disputes & uncertainties; to prevent assets to be classified as UNCLAIMED ASSETS by the government, please Write a Will Today!

Who is in a Will ?
A) Testator - A person who write a Will. B) Executor(s) - A person(s) or a trust corporation appointed by the testator to administer his/her estate. Main duties of an Executor To locate the Will To make funeral arrangement Apply for Grant of Probate (GP) Calling in assets of deceased To pay debts To prepare Statement of Accounts To distribute assets according to the Will To carry out wishes mentioned in the Will

C) Trustee(s) - Person(s) or trust corporation appointed in a Will to hold on trust for beneficiaries who inherit assets in a Will. Main duties of Trustees To continue to administer the estate when the assets can not be distributed e.g. beneficiary is a minor. To manage the estate according to the instructions and power given under the Will and The Trustee Act 1949.

D) Guardian - A person appointed to take care of the welfare of minor children Main duties of Guardian To ensure the welfare of the minor children is take care of.

E) Beneficiaries - A person(s) or entity (eg. a charity) who receive gifts under a Will. F) Two Witnesses - 2 independent parties who witnessed the testator signing the Will. The three parties (i.e. 2 witnesses and testator) must sign the Will in the presence of each other. The two witnesses are to confirm that the testator is sound mind when signing his/her Will

Can I write my own Will or do a DIY Will?

It is always not advisable to write our own will because we might not achieve what we want and avoid what we don't want. The following might happen: Most time it is partial intestacy - No residuary clause Easily subject to contest in court, may cause future problem May not be granted a Probate - Vague Not fully aware of legal implication May not take care of your worries No assurance/protection to beneficiaries e.g. no trust fund to protect family members No appointment of Trustees May not help to realize your goals!

Remember, a Will must be 'functional', as it may cause delay, problems, frustrations, anger, hardships to our family & loved one when it is not properly drafted and 100% valid under the Law. Get a Professional to write, even it is a simple one as it provide us with A Peace Of Mind & Makes Our Dreams Come True!