Should you write a Will?
Benjamin Franklin, one of the founding fathers of the United States of America once said, “In this world, nothing can be said to be certain except death and taxes”. Indeed, death is without a doubt, something that everyone will have to deal with, even though such a topic is usually avoided and considered a taboo.
Have you ever wondered what would happen to your assets upon death? Or perhaps, how will your assets be distributed in the event of death? What happens if you do not have a will? Or maybe, why should you write a will? And how can you write a will? Such questions are common and in this 1st Part of our Probate and Estate Planning / Management series, we are here to answer them in the Q&A below.
1. What happens to your assets upon death in Malaysia?
First and foremost, we have to determine whether the deceased is a Muslim or a Non-Muslim. If he or she is a Muslim, the distribution of the deceased’s estate is according to Muslim inheritance law whereas for a non-Muslim, Malaysian civil laws of inheritance shall apply.
2. How will your assets be distributed in the event of death?
For a Muslim, he or she can only will 1/3 of their assets while the balance will have to be distributed according to Islamic law / hukum far’aid.
On the other hand, if you are a non-Muslim, it would depend on whether you have a valid will or not. With a valid will, you can decide your beneficiaries and the distribution of your assets will be based on your will. Otherwise, the distribution of your assets will be based on the Malaysian civil laws of distribution of estates.
3. If you are a non-Muslim and did not leave a valid will, how will your assets be distributed according to the Malaysian civil laws of distribution of estates?
Section 6 of the Distribution Act 1958 (“DA 1958”) will apply and your assets will be distributed to the living family members in the following manner, and formula summarized below:
| No. | Beneficiary | Yes / No | Share |
|---|---|---|---|
| (a) | Spouse | Yes | Surviving Spouse entitled to whole estate. |
| Children (Issue) | No | – | |
| Parent(s) | No | – | |
| (b) | Spouse | Yes | Surviving Spouse entitled ½ of estate. |
| Children (Issue) | No | – | |
| Parent(s) | Yes | Surviving Parent(s) entitled ½ of estate. | |
| (c) | Spouse | No | – |
| Children (Issue) | Yes | Surviving Children (Issue) shall be entitled to the whole estate. | |
| Parent(s) | No | – | |
| (d) | Spouse | No | – |
| Children (Issue) | No | – | |
| Parent(s) | Yes | Surviving Parent(s) shall be entitled to the whole estate. | |
| (e) | Spouse | Yes | Surviving Spouse entitled 1/3 of estate. |
| Children (Issue) | Yes | Surviving Children (issue) entitled 2/3 of estate. | |
| Parent(s) | No | – | |
| (f) | Spouse | No | – |
| Children (Issue) | Yes | Surviving Children (issue) entitled 2/3 of estate. | |
| Parent(s) | Yes | Surviving Parent(s) entitled 1/3 of estate. | |
| (g) | Spouse | Yes | – |
| Children (Issue) | Yes | Surviving Children (Issue) entitled to 1/2 of estate. | |
| Parent(s) | Yes | Surviving Parent(s) entitled 1/4 of estate. |
If your case does not fit the above scenarios, the following shall apply according to priority: surviving brothers and sisters; surviving grandparents; surviving uncles and aunts; surviving great grandparents; surviving great uncles and aunts; and lastly the government.
Theoretically, if you agree with the way of distribution in Section 6 of the DA 1958, you don’t need a will. However, it is still advisable to write a will.
4. Why should you write a will?
The benefits of writing a will are among others:
- You have absolute discretion to decide who inherits your assets.
Unlike a case without a will, you have absolute discretion to determine who your beneficiaries are and the proportion of share of your assets to be distributed to each of them. Also, you can include even a friend, or a charity as a beneficiary, and/or exclude any immediate family member(s) from benefiting from your will.
- You have absolute discretion to choose an Executor (male) / Executrix (female) of your will.
You can decide to name any trusted family member or close friend who is willing and able to be your Executor / Executrix of your will. He or she will be your legal representative authorized in law to carry out your instructions in your will and be a Trustee of your estate. The functions of an Executor / Executrix shall include, among others, using the monies from your estate to pay off any outstanding debts (if any) and funeral expenses, effect sale or transfer of your property (both immovable and movable) and distribute whatever residual property, monies or proceeds of sale to the beneficiaries in your will.
- You can determine the legal guardian over your children who are minors.
In the event of your demise and your spouse’s demise, you need not have to worry who will be your children’s legal guardian after death. You can appoint any willing and able person to take this role. Usually, it is the Executor / Executrix or a close immediate family member. Your children’s legal guardian will assume the legal responsibility over your children in medical, financial, educational and contractual decisions according to your instructions in the will and/or the best welfare interest of your children.
- The process to obtain a Grant of Probate at the High Court is easier and faster compared to applying for Grant of Letters of Administration if there is no will.
If you have a valid will, there will be a named Executor / Executrix and the distribution of estate shall be according to your instructions. In such cases, filing a Grant of Probate to the High Court is fairly simple and more straightforward. The duration to obtain a Grant of Probate at the High Court would usually take about 1 ½ months to 2 months, depending on the court’s schedule and operation hours.
If you do not have a will, your family members would have to determine and agree who can apply for Letters of Administration. This process may be time consuming and subject to dispute if they cannot come to an agreement. The duration to obtain Letters of Administration is much lengthier than a Grant of Probate, i.e from a couple of months to even up to a year.
- Not easy to challenge distribution if there is a valid will.
An application for a Grant of Probate at the High Court is usually difficult to challenge / contest because a valid will has to be witnessed by at least two (2) witnesses who cannot be beneficiaries of the will or spouse of such beneficiaries in the will. And it is not easy to invalidate a will unless there is a genuine case of fraud, forgery, coercion, duress etc.
On the other hand, an application for Letters of Administration can be easily contested / challenged, especially when there are disputes within the family as to who should be the legal representative of the deceased’s estate. This is common when the deceased had left behind a huge estate and there is rivalry among the deceased’s children.
5. How can you write a will?
You have various options, namely:
- You can draft your own will without the need of professional help;
- You can engage a professional solicitor to do it for you; or
- You can engage a professional will writer.
The following aspects are to be considered:
| Aspect | Writing Own Will | Professional Solicitor | Professional Will Writer |
|---|---|---|---|
| Costs | Free. Practically no costs involved if you write your own will. | Average. A professional solicitor may be able to link you with an independent investment and financial planner on an ad-hoc basis. | Possibly High. This is especially if it includes investment, financial planning such as unit trust and other services. |
| Contents of Will | May not be comprehensive. You may not be familiar on how to convey your intentions properly in writing, and the contents of the will could be lacking | Comprehensive. A professional solicitor would be able to draft a custom will that is concise, understandable, professional and most importantly, unique to your circumstances. | Comprehensive. A professional will writer would also be able to draft a custom will for you that is comprehensive, but it would be different than a professional solicitor’s manner of drafting. |
| Risk of Challenge | High. Easy to challenge if you do not know how to draft a will in compliance with the conditions in the Wills Act 1959, or if your intentions / instructions in your will are vague. | Low. A professional solicitor is not only able to draft a valid will according to the law on wills but is also able to advise you on related issues and act for your legal representatives in court to obtain a Grant of Probate or if there is any dispute. | Average. Wills may be drafted by in-house legal counsels, who may or may not have previous experience in active legal practice. If you need to obtain Grant of Probate or if there is a dispute in a will, you would still need to appoint a professional solicitor to represent you in court. |
| Chances of Losing Will | High. You may lose your will if it is not kept in a safe place at your home / office or if theft or fire happens at these premises. | Low. A professional solicitor may be able to provide reasonable safekeeping of your will with minimal fees. | Low. A Professional Will Writer would usually have safekeeping of will services with average fees. |
6. Conclusion – Should you write a will?
Even though it is not compulsory, having a will done is highly encouraged. And it is worth engaging a professional solicitor or a professional will writer to assist you in preparing your will. Doing so would be beneficial for your legal representatives in future, when they have to take on the responsibility to administer your estate and carry out your instructions in your will. The costs involved is merely a small price to pay, if compared to not having a will done or drafting a will on your own.
Should you have any further inquiries, feel free to contact us.
[Disclaimer: The above Q&A is merely for general informational purposes only as at the date of publication, and is not conclusive. Readers should seek proper legal advice.]
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6. Conclusion – Should you write a will?
Even though it is not compulsory, having a will done is highly encouraged. And it is worth engaging a professional solicitor or a professional will writer to assist you in preparing your will. Doing so would be beneficial for your legal representatives in future, when they have to take on the responsibility to administer your estate and carry out your instructions in your will. The costs involved is merely a small price to pay, if compared to not having a will done or drafting a will on your own.
Should you have any further inquiries, feel free to contact us.
[Disclaimer: The above Q&A is merely for general informational purposes only as at the date of publication, and is not conclusive. Readers should seek proper legal advice.]
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