FAQS – Grant of Probate, Letters of Administration and Transfer of Deceased’s Property

Preliminary Questions

1. My family member (deceased) has passed away, how do I administer or deal with the assets left behind?

   If the deceased passed away leaving a will, the executor(s) named in the will would need to apply for Grant of Probate from the High Court of Malaya.

   If the deceased passed away without a will, then the next of kin/ spouse would need to apply for Grant of Letter of Administration from the High Court of Malaya.

2. Am I, as an executor/ administrator, expected to use my own money to cover the expenses of administering the deceased’s estate?

   Generally, if the estate of a deceased person is solvent, the executor/ administrator may use funds from the deceased’s estate to pay for the expenses of administering the deceased’s estate.

3. How should I (executor/ administrator) administer the estate?

   Generally, the steps to be taken by the executor / administrator in administering the estate are as follows: –

   1. ascertain the deceased’s assets and liabilities;
   2. pay off any debts left behind by the deceased;
   3. apply for grant;
   4. advertise in newspaper for Notice to Creditor;
   5. distribute the estate.

   NOTE:

   (i) For Grant of Probate, the executor has a duty to distribute the estate in accordance with the deceased’s will.

   (ii) For Grant of Letter of Administration, the administrator has a duty to distribute the estate in accordance with the Distribution Act 1958.

4. I’m not sure what assets/ liabilities the deceased had – how do I find out this information?

   1. Enquire with the deceased’s next of kin;
   2. Refer to the correspondences i.e. bank account passbook, bank account statement, letter from bank, quit rent (cukai tanah), assessment (cukai taksiran), utilities bill, sale and purchase agreement, loan documents and etc;
   3. Engage lawyer in assisting to request for further information including writing to banks to request for disclosure.

Probate

1. What is ‘Grant of Probate’?

   It is a grant of permission issued by the High Court to the executor(s) named in a will, empowering the executor to administrate the deceased’s estate where the deceased passed away leaving a will.

2. I am the named executor in the deceased’s will but I don’t want to carry out the duties. What can I do?

   You may renounce your rights as the executor.

3. I am the named executor in the deceased’s will but I live overseas and it is difficult for me to attend the hearing. Can you help me?

   You may execute a power of attorney in favour of our lawyer(s) in relation to the probate matter, which would enable our lawyer(s) to attend the hearing on your behalf.

4. What is the effect of marriage and divorce on your will?

   Any existing will is automatically revoked and become invalid once you get married. However, divorce does NOT revoke the existing will, As such, it is advisable to re-write the will after divorce due to the changes of arrangement for the beneficiaries

Letters of Administration

1. What is ‘Grant of Letters of Administration’?

   If a deceased has died intestate (i.e. without a Will), the distribution of the estate is entrusted to administrator(s). Any person who may have an interest in the estate, such as next of kin, may file for Grant of Letters of Administration in the High Court.

2. Who should be appointed as administrator?

   1. Generally, the deceased’s next of kin or the spouse could be appointed as administrator.
   2. Where there are several possible candidates that could be appointed as administrators, all the beneficiaries should mutually agree on the appointment of the chosen administrator.

   NOTE:

   Those who are entitled to be appointed as administrator but not appointed as administrator is to renounce their rights to be the administrator of the estate.

3. The beneficiaries have agreed to transfer the estate in a way different from the stated distribution in the Distribution Act – can they do that?

   Yes, they may do so if they are in agreement. The beneficiaries should confirm their agreement in writing.

4. I’ve been told I need to obtain a ‘distribution order’ – what is this for?

   A distribution order is an additional order needed to be obtained in cases of letters of administration involving immovable property before the immovable property can be administered by the administrator.

   The distribution order can only be applied for after the grant of letters of administration has been obtained.

5. The executor or administrator died intestate/ absconded/ became incapacitated before the deceased’s estate was fully distributed – what happens now?

   You would need to engage a lawyer to apply for ‘letters of administration de bonis non’ in the High Court of Malaya, which would allow the estate to be fully administered.

Others

1. One of the assets left by the deceased is a car – how do I go about transferring ownership of this?

   After obtaining the grant from High Court of Malaya, you would need to go to the nearest Jabatan Pengangkutan Jalan Malaysia along with the necessary documents:-

   (a) a certified true copy of the grant of probate/ letters of administration to effect the transfer; and

   (b) motor vehicle registration certificate.

2. How do I go about after getting the grant if the deceased have the following assets:-

   (i) Unit trust;
   (ii) Insurance policy;
   (iii) Bank account.

   After obtaining the grant from High Court of Malaya, you would need to go to the relevant trust company / insurance company / bank and bring along a certified true copy of the grant of probate/ letters of administration to proceed with estate claim or account closure.

3. What about company shares behind by the deceased? How do I go about after getting the grant?

   Sdn Bhd Company

   After obtaining the grant from High Court of Malaya, you would need to give notice to the company secretary in writing together with a copy of the Death Certificate of the deceased and a certified true copy of the grant of probate/ letters of administration (together with the distribution order).

   The Company secretary will notify SSM on the changes.

4. Do I need to pay individual taxes i.e. Income tax owned by the deceased?

   Yes, the executor or the next of kin shall inform LHDN about the death of the deceased and must not distribute the estate to the beneficiaries unless made provisions for full or reasonable tax payment.

5. Is it necessary for the executor/administrator to prepare an administration account?

   Yes, it is a critical part of an executor/ administrator’s duties. It should include detailed records and evidence supporting each and every transaction.

6. I’ve already obtained the grant of probate/ letter of administration but have just discovered that an asset (e.g. house) was not included in the list of assets. What can I do now?

   You can engage us to apply to the High Court for an amendment to the list of assets and liabilities.

Transfer of Property

1. What is a TP number and why do I need it?

   A “TP” number is an income tax number applied for by the executor/administrator so that their personal taxes are separated from the assets received from the deceased’s estate as executor/administrator.

2. Do I have to pay stamp duty on the transfer of property from the deceased’s estate to the beneficiary?

   Yes. For properties inherited from a deceased’s estate, the stamp duty is RM10.

3. The property is still under loan – can I transfer it to the beneficiaries now?

   No, the property has to be fully paid off before it can be transferred.

4. What is the difference and purpose between Memorandum of transfer, Borang CKHT 1A, Borang CKHT 2A and Borang CKHT 3?

   1. “MOT” (also known as ‘Borang 14A’) is the document that transfers ownership from the transferor to transferee.
   2. ‘Borang CKHT 1A’ is signed by the executor/administrator and is needed to exempt the executor/administrator from being taxed for being vested with the deceased’s property.
   3. ‘Borang CKHT 2A’ is to exempt the beneficiaries from being taxed, as there are no taxes for inheriting property in Malaysia.
   4. ‘Borang CKHT 3’ is to be signed by the executor/administrator which states that the executor/administrator agrees to transfer the property to the beneficiary stated therein.

NOTE:
Please note that the above FAQs is a simplified version for easy reference. Kindly refer to us for the details of the above matters.

DISCLAIMER:
The information provided herein is meant for general reference and public awareness only. It does not constitute a legal advice or solicitation of clients. We accept no liability for loss or damage suffered or incurred by you as a result of your reliance on any of the information provided herein.

If you have any questions or require any additional information, please contact our lawyer that you usually deal with.

This article is written by

Lim Chew Ni
Legal Associate, Low & Partners

Tay Chuu Lin
Legal Associate, Low & Partners