.
Introduction:
When a person passes away, and has left a valid will, the next step is to apply for a Grant of Probate in the High Court. It goes without saying that this legal document is crucial as it empowers the executor to distribute the deceased according to his will.
.
For many people, the probate application process can seem complex and difficult to understand. Therefore, this article aims to address ten commonly asked questions about applying for a Grant of Probate in Malaysia, providing you with a clearer understanding of the essential steps and key considerations involved in this legal process.
.
Question 1: Do I need to appoint the same lawyer who drafted the will to apply for a Grant of Probate?
In Malaysia, it is not mandatory to appoint the same lawyer who drafted the will to apply for a Grant of Probate.
.
While engaging the original lawyer may offer convenience due to their familiarity with the contents of the will, the executor has the legal right (under the Probate and Administration Act 1959) to choose any lawyer he/she trusts to manage the probate process and carry out the wishes of the deceased.
.
Question 2: Can I apply for a Grant of Probate in Malaysia if the deceased passed away abroad without a local death certificate?
Yes, it is possible to initiate a Grant of Probate application in Malaysia even if the deceased passed away overseas without a Malaysian death certificate. However, additional steps are required:-
.
- Report the death: The deceased’s relatives must report the death to the Malaysian High Commission in the country where the death occurred so to obtain a report letter “Laporan Kematian Luar Negara Untuk Tujuan Rekod Jabatan Pendaftaran Negara”.
- Register the death: This report letter must then be submitted to the National Registration Department (JPN) in Malaysia to obtain a death registration letter.
.
This death registration letter will then be treated as the deceased’s death cert in the Grant of Probate application.
.
Question 3: What documents are required when applying for a Grant of Probate?
To apply for a Grant of Probate, you will need to provide the following documents to your probate lawyer:
- The deceased’s death certificate
- Copies of the beneficiaries’ and executor’s identity cards (IC)
- A copy of the will
- Documents verifying the deceased’s ownership of assets (such as land titles, vehicle registration cards, bank statements, etc.)
.
***If the deceased passed away abroad, you must also provide the foreign death certificate, the report letter from the Malaysian High Commission, and the death registration letter extracted from JPN.
.
Question 4: Do the two witnesses of the will need to appear in court? What if one of the witnesses cannot be located?
No, the witnesses to the will are not required to appear in court. However, they must each sign an affidavit confirming that the deceased’s signature on the will is authentic and was signed in their presence.
.
In the situation where one of the witnesses cannot be located, the executor’s lawyer will help to locate the witness. If the said witness still cannot be located, the executor will need to affirm an affidavit, informing the court that all reasonable efforts to locate the witness have been made but were unsuccessful.
.
In most cases, the court will still grant the application for the Grant of Probate with this affidavit in place.
.
Question 5: How long does the process of applying for a Grant of Probate usually take?
The typical timeframe for obtaining a Grant of Probate is between 1 to 3 months. The actual duration can vary depending on factors such as the complexity of the estate, the efficiency of document preparation, and court scheduling.
.
Question 6: Do beneficiaries need to appear in court when applying for a Grant of Probate? What documents are required to bring on the hearing date?
Beneficiaries are not required to appear in court. Only the executor of the will needs to attend the court hearing.
.
The executor must bring the original death certificate and the will for the court registrar to examine.
.
Question 7: Will the court ask the executor questions during the hearing?
Yes, the court may ask the executor questions. The specific questions can vary depending on the court registrar’s usual practices and the complexity of the case.
.
Typically, we advise the executor to practice answering common court questions in Malay to ensure the hearing proceeds smoothly.
.
Question 8: If one of the executors named in the will is elderly and has mobility issues, can he/she renounce from his/her role as the executor?
Yes, an executor can choose to step down from their duties. This renunciation must be formalized by signing an affidavit prepared by an attorney, which then requires approval from the court.
.
Question 9: After obtaining the probate order, does the deceased’s estate in Malaysia automatically transfer to the beneficiaries?
No, the probate order does not automatically transfer ownership of the deceased’s estate to the beneficiaries.
.
Once the probate order is issued, the executor must bring the probate order to the relevant banks or government agencies to process the transfer of assets like bank accounts and vehicles.
.
For real estate owned by the deceased (such as houses, commercial properties, or agricultural land), the executor will need to appoint a lawyer to transfer ownership to the beneficiaries as per the deceased’s wishes in the will. Legal fees for this process are typically based on the property’s value.
.
Question 10: If the beneficiaries reach an agreement, can they distribute the deceased’s estate in a manner different from what is specified in the will?
Legally, the executor is required to distribute the estate according to the will’s terms. However, in certain situations, beneficiaries might agree to an alternative distribution method, such as selling the deceased’s property to a third party before distributing the estate.
.
In these cases, beneficiaries can either wait until the estate is officially transferred and then distribute it according to their agreement or execute a “deed of arrangement” to seek court approval for the alternative distribution.
.
To obtain court approval, all beneficiaries must consent, and there must be a reasonable justification for the proposed changes. Consulting with a lawyer is recommended to navigate this process effectively.
——————————–
The above is the legal information we would like to share with our readers today with regard to applying Grant of Probate in Malaysia. If you have any legal questions about this legal process, you can contact us via WhatsApp: https://wa.link/q3kmv5
.
Like & Follow our Facebook Page to get more legal information.
.
You can learn other legal information from our website：https://www.yeolaw.my/
.
#yeolawchambers #ylc #jblawyer #willdrafting #transferofproperty #grantofprobate #inheritancelaw #Malaysialawyer #杨律师事务所 #华人律师 #法律#立遗嘱 #遗嘱认证 #费用 #继承产业 #马来西亚产业转名