What is a Will?
A will is a legal document that sets out your wishes for the distribution of your asset after you passed away. Your executor will apply to the court for a Grant of Probate to distribute your asset as per your instruction in the will.
Do I need a Will?
You maybe concerned about the welfare of your children from your divorce. You may also want to leave something to the charity. You may record all your wishes into your Wills so that when you passed away, your beneficiary may carry out your wishes as per your Will.
Appointment of Executors and Trustees.
You may appoint few executors to carry out your wishes. This includes the duty to make funeral arrangements, locating the assets of the deceased, settling the income taxes of the deceased and to distribute your assets to the beneficiary. The executor also has a duty to apply for a Grant of Probate with the High Court.
A trustee on the other hand, hold the asset of yours and will perform its duty as per your instruction. The difference is that the ownership remains with the trustee holding as trust. Upon the materializing of a period as per your instruction, the trustee will transfer the assets to the beneficiary. This happens when the children of the deceased has yet to reach the age of majority.
Who should I appoint as my Executor?
An executor carries the wishes of the death. In reality, testator will appoint the beneficiary as the executor to apply for the Grant of Probate before the High Court. The factor that the testator has to consider when appointing an executor is whether the executor will carry its duty and obligation as instructed. There may be situation where the executor refuses to affirm the affidavit or to attend to the court’s meeting.
It is recommended that the testator prepares a list of executor’s duty as a reminder of what the executor needs to do after the testator passed away.
Who should I appoint as a Trustee?
A trustees hold the deceased or the testator’s asset on trust on behalf of the beneficiary. The trustees hold the asset on trust or “kepercayaan” or “amanah” for the beneficiary. This may happen if the beneficiary has negative habits such as gambling and heavy spending.
One of the considerations to take into account is the health of the trustee. You do not want to appoint a trustee that can pre-deceased you. Alternatively, you may approach a trust company that is licensed to carry trust activity.
Appointment of Guardians
Imagine if both you and your wife passed away, leaving behind a minor child below 18 years old, you may appoint a guardian to take care of the children. This usually apply where the father would appoint some close relative such as his brother to take care of his children. You may also appoint joint guardians to take care of the children.
In the case, where you forget to include the appointment of guardian in the will, the executor may apply to the court for guardian ad litem (“court’s appointed guardian”).
Gifts to Specific Individual
You may want to give out specific asset to your own preferred children or person. Without a Wills, you may not be able to decide the allocation of your assets as per your preference. With a Wills, you can decide who should be allocate on the percentage of the share of a house; who should inherit the motor vehicle; who should inherit the shares of the company to continue running your business legacy.
Upon the drafting of a wills, you may have acquired new properties along your journey. You will need to have a residuary clause to cover this unrecorded distribution of assets within your wills. Otherwise, you will need to revoke and re-write a will every single time you have a new asset.
You may also want to record your digital assets into your wills such as your Facebook Account, Instagram Account, Tik-Tok Account, Linkeldin and etc. You also can record the amount of bitcoin and Non-Fungible Tokens you have acquired and to whom you want to pass to.
What if I passed away without a Will?
If you passed away without a wills, your estate distribution will be governed under the Distribution Act 1958. It is basically the “Government Wills” where your distribution of assets will be decided by the government’s law. The administrator will apply for a Letter of Administration (“LA”) and this will usually take a longer time as the administrator needs time to locate the deceased’s assets. Any assets left out will resulted in the administrator to re-apply for a new LA or to file an amendment to the List of Assets under the LA.
I have assets in two countries (Singapore & Malaysia)
It is advisable to have two wills to deal with your assets respectively in Singapore and Malaysia. Alternatively, you have to re-seal the Grant of Probate that you have obtained from the first country in your second country.
Can I have two Malaysian Wills?
You may have two wills dealing with separate properties of yours. You may want to pass down a property to your stepchildren without the knowledge of your family members. You may write a will for a property to be gifted to your stepson, whereby the executor will apply for the first Grant of Probate for the property to be gifted to your stepson.
Then you may draft a second wills to deal with your other assets, in distributing it to your family members to avoid conflict. It is important to note the assets identified cannot be the same asset stated within the two different wills. Otherwise, this will lead to legal dispute in the Court.
Can I give away my Employment Provident Fund (EPF) savings?
No, EPF savings is governed under the EPF Act 1991. You will need to nominate a beneficiary as recipient of your EPF savings. Section 70 of the EPF Act 1991 states that you need to nominate a beneficiary so that your EPF savings can be paid out to your beneficiary when you passed away. In the case, where you did not nominate anyone, you may need to apply for a Court Order to justify to the Board to pay out the EPF savings to the deceased closed family member.
The challenge can be to find out the EPF registration number of the deceased. Therefore, it is vital to keep a copy of the EPF statement consisting of your EPF registration number which is visible to your close family member.
How can I give away my cash savings in the bank?
The Malaysian bank will only disburse the deceased’s savings upon receipt of a copy of the Grant of Probate or Letter of Administration.
In the case of a Joint Bank Account, the surviving account holder will be entitled to the whole sum in the bank account. There is case where your joint account holder pre-deceased you, and both of you may need to include into your will to clarify on the position of the distribution of the savings in a joint bank account.
How can I transfer my family ancestral home?
It is common for family member to preserve the “family home” or “ancestral home” due to its nostalgia and tradition. You can transfer the property to a trustee to hold for a period of time. The beneficiary can still enjoy the property while the property cannot be sold.
The beneficiary can also buy out each other shares so that the property can be transferred to a sole family member to hold and preserve the family house.
Insurance nomination usually does not need to have any Court Order (Grant of Probate or Letter of Administration) before the insurance company can disburse the monies. The beneficiary can just provide a copy of the death certificate to the insurance company to request for the pay-outs from the deceased’s insurance.
However, you can also plan on the sum to be distributed to the beneficiary by stating it in the will. You can instruct a trustee to distribute the insurance sum in a fixed sum to the beneficiary in case the latter is a minor.
Can I exclude my family member from inheriting my assets?
Yes, the will is your final wishes in how you would like to distribute your assets. You can also decide to dispose of your asset to a charity foundation.
How long does a Last Will and Testament be valid for?
Your Last Will and Testament will last until you replace it with a new will, or you have revoke it in writing or it has been destroyed.
It may also be invalid if you marry, re-marry or convert to islam.
Privileged wills apply to army or navy as they need to prepare for war. They can be exempted from having witnesses to attest. The privileged wills maker can be below 18 years of age and also it can be made orally by communicating to another member of the army or navy. This is because in time of war, the army may want to express on how his last wishes should be carried out to his other member.
Authored by Dylan Chong, Partner from JR Ng & Chin who specialises in tax appeal (Income Tax, Real Property Gains Tax, Service and Sales Tax, Custom Duties) and tax planning for companies’ directors and individuals. You may contact him at email@example.com
The contents of this publication are given as general information for reference purposes only and do not constitute the firm’s legal advice. For any specific matter or legal issue, please do not rely on this publication but make sure to consult a legal adviser. We would be delighted to answer your questions, if any.