What Is Probate in Malaysia and Why Is It Needed?

Probate is the legal process by which the High Court confirms the authority of the executor named in a deceased person's will to administer the estate.

A will records what the deceased wanted to happen. Probate gives the executor the legal authority to carry those wishes out. Without that authority, banks, land offices, companies and other institutions may refuse to release or transfer estate assets.

This distinction is important. A valid will does not necessarily mean the family can immediately deal with the deceased's property.

This article focuses mainly on non-Muslim estates in Peninsular Malaysia. The Wills Act 1959 applies in Peninsular Malaysia and expressly does not apply to wills of Muslims.

What is a Grant of Probate?

The Probate and Administration Act 1959 defines probate as a grant under the seal of the Court authorising the executor named in the will to administer the testator's estate.

Section 3 provides that probate may be granted to an executor appointed by a will.

The executor is the person chosen by the deceased to deal with the estate after death. Once the Grant of Probate is obtained, the executor can prove that authority to third parties and begin administering the estate.

Probate is therefore not another will, and the Court is not rewriting the deceased's wishes. The Grant confirms the executor's authority to act under the will.

Why is probate needed if there is already a will?

Because the will and the authority to administer the estate perform different functions.

A will identifies beneficiaries, appoints an executor and records how the estate should be distributed. But institutions holding the deceased's assets need proof that the person asking for those assets has legal authority to receive and deal with them.

The Grant of Probate provides that proof.

Depending on the estate, the executor may need the grant to deal with bank accounts, shares, investments, land, houses and money owed to the deceased.

The Probate and Administration Act also gives a personal representative powers to recover debts owed to the deceased and deal with estate property, subject to the Act and the will.

What does an executor actually have to do?

Being named as executor does not mean simply dividing the assets between the beneficiaries.

Estate administration normally involves identifying the deceased's assets and liabilities, securing the assets, obtaining the necessary grant, collecting money due to the estate, settling proper funeral and administration expenses, paying debts and liabilities, and only then distributing the balance according to the will.

Section 68 of the Probate and Administration Act reflects this order by requiring proper expenses, debts and liabilities to be dealt with before the remaining estate is distributed.

This is why beneficiaries should not assume that an asset mentioned in the will becomes theirs immediately upon death.

Probate vs Letters of Administration

If the deceased left a valid will and the executor named in that will is able and willing to act, the usual High Court application is for a Grant of Probate.

If the deceased died without a will, the estate is intestate and the appropriate grant is generally Letters of Administration.

There is also a third situation. A valid will may exist, but there may be no executor capable or willing to act. For example, the executor may have died or renounced the appointment.

Section 16 of the Probate and Administration Act allows the Court in those circumstances to grant Letters of Administration with the will annexed to an appropriate person.

So the existence of a will does not always mean the document ultimately issued will be called probate.

Who can apply for probate?

Ordinarily, the executor appointed in the will applies.

If several executors are appointed, section 3 allows probate to be granted to them together or at different times, subject to the statutory restrictions.

An executor is not forced to take up the role. The Probate and Administration Act allows an executor to renounce probate. If no executor can act, another form of representation may be needed.

A properly prepared will should therefore identify the executor clearly and ideally provide for a substitute executor.

How is probate obtained in Malaysia?

Non-contentious probate applications are governed by Order 71 of the Rules of Court 2012.

In practical terms, the executor will usually need the original will, death certificate, details of the estate assets and liabilities, and the supporting court documents.

The application is made to the High Court. If the Court is satisfied with the will, the executor's appointment and the supporting evidence, the Grant of Probate can be issued.

The grant can then be used when dealing with the relevant asset holders and authorities.

If the validity of the will or entitlement to the grant is disputed, the matter may become contentious probate proceedings rather than a straightforward non-contentious application.

Does every estate need probate?

No.

Probate specifically concerns a will and an executor. Where there is no will, the issue is usually administration rather than probate.

There are also separate statutory routes for certain estates.

JKPTG currently defines a small estate as an estate worth not more than RM5 million consisting of movable property, immovable property, or both, and, in the case of a non-Muslim deceased, where there is no will. Those applications go through the small-estate distribution system rather than the ordinary probate route.

Amanah Raya also has statutory powers of summary administration for certain estates consisting of movable property not exceeding RM600,000, subject to the conditions in the Public Trust Corporation Act 1995.

The correct route therefore depends on whether there is a will, what assets exist, their value and the circumstances of the estate.

What happens if the family does nothing?

The assets do not simply transfer themselves because the family agrees who should receive them.

Bank accounts and investments may remain inaccessible, land may remain registered in the deceased's name, and beneficiaries may be unable to deal properly with inherited property.

Delay can also make administration harder. Documents may be lost, executors or beneficiaries may later die, and the number of people interested in the estate may increase.

JKPTG similarly warns that delayed estate administration can leave assets frozen, increase the number of beneficiaries through successive deaths and make distribution more difficult.

Does probate mean the executor owns the estate?

No.

The executor administers the estate for the purpose of paying liabilities and giving effect to the will. The executor does not become the beneficial owner of the deceased's assets simply because probate has been granted.

The executor is accountable for the property being administered. Section 62 of the Probate and Administration Act allows the Court to require a personal representative to file a true inventory and account of the deceased's movable and immovable property.

Frequently Asked Questions

Do I need probate if my parent left a will?

Possibly. If the will appoints an executor and estate assets require formal authority before they can be released or transferred, a Grant of Probate will commonly be required.

How long does probate take in Malaysia?

There is no single fixed period. An uncontested estate can move much faster than one involving missing documents, foreign assets, disputes, difficult valuations or challenges to the will.

Can beneficiaries apply for probate?

Probate is ordinarily granted to the executor appointed by the will. If the executor cannot or will not act, another form of grant may be appropriate.

Can the executor distribute the money immediately?

The executor should first identify the estate, settle proper administration expenses, debts and liabilities, and then distribute the remaining estate according to the will.

What if there is no will?

The estate is generally administered through Letters of Administration or another applicable estate-distribution procedure rather than a Grant of Probate.

Does the Wills Act 1959 apply to Muslims?

No. Section 2 expressly excludes wills of persons professing Islam. Muslim estate planning and distribution involve separate Islamic law and procedural considerations.

Final takeaway

Probate is the legal authority that allows an executor to turn a will into an administered estate.

The will records the deceased's wishes. The Grant of Probate confirms the executor's authority to collect the assets, settle liabilities and distribute the estate.

The correct process depends on the will, the assets, their value and whether any dispute exists. Families should identify the correct route early rather than assume possession of the will alone is enough.

Speak to JPP LAW

Justin, Poh & Partners, also known as JPP LAW, assists executors, beneficiaries and families with probate applications, Letters of Administration, estate administration and disputes concerning wills and estates in Malaysia.

If a family member has passed away and you are unsure whether probate, Letters of Administration or another estate procedure is required, you may contact us to review the will, estate assets and appropriate next steps.

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Disclaimer: This article is for general information only and does not constitute legal advice. Probate and estate administration depend on the deceased's will, religion, domicile, assets, estate value and the circumstances of each case.