Most people thought they are not “old” enough or don’t “have enough assets” to have the need of writing a will. Frankly, I used to think like that too but I want to share with you the intricacies of not having a will after something passed on. Then you can look at your current situation and judge whether it is necessary. Even if you already have a will, check a few pointers below because the writing a will is just a start of doing the right things right the first time; the more important thing is the execution part.
The Agonizing Process of getting Letter of Administration (L.A.) if there is no Will (story-fied)
- With a will, you get the Grant of Probate from the court. Without a will, it is the L.A.
- Jill wants to deal with her dad’s estate who died intestate (without a will). So she needs apply for the the L.A.
- She needs to appoint herself as the Administrator (equivalent of the Executor with a will)
- However, to be the Administrator, all eligible living beneficiaries according to the Malaysia Distribution Act 1958 need to give their unanimous consensus, and essentially renounce their rights to be the Administrator. (For cases where there is infant beneficiary, at least 2 Administrators must be appointed)
- For Jill, it is her siblings who have settled down overseas
- Because of this, she took months to get in touch with them, sending them the documents and getting all letter of consent signed
- After that, she have to look for 2 Guarantors with unencumbered assets at least the equivalent to the value of her dad’s estate. This is basically to say, the guarantors will be personally liable if Jill runs away with the estate. Now do you think it is easy or hard to find such guarantors? It is almost impossible in most cases. Thus, need to apply to court to waive this requirement if you can prove sufficient effort has been taken to look for guarantors.
- Since according to the Act, parents and spouse of the deceased are entitled 25% respectively of his/ her estate, that means Jill has to prove that her mother and her grandparents has passed away before Jill and her siblings can be entitled for equal share of her dad’s estate. She has her mum’s death cert but the same cannot be said for her grandparents who passed away so many years ago.
- Meaning, to fulfill this requirement (proving her grandparents are deceased), either – look for 2 witnesses who can testify to this or apply for the Order of Presumption of Death
- The whole process was frustrating for her, and it held up the whole process longer than she ever expected
- Next matters in progress are applying the L.A. in Singapore to deal with her dad’s estate there. And she would have to seek legal advice to arrange for transfer of assets to her siblings overseas
Consequences of a “Imperfect Will” Often Overlooked
- Both witnesses not contactable 20-30 years from now. Therefore, it should be someone you know personally and know of their whereabouts. Witness need to prove the will during execution, else there will be a delay in will execution
- Commorientes to be specified, else your intended wishes for distribution will be of your beneficiary’s will, not your will – else if beneficiary were to decease within a short time after your decease.
- Executor appointment – natural person. The executor must be able and willing to deal with your estate, especially if he/she is not staying in the same town as you. For the next substitute executor in line (as per your wishes) to come in, the first executor must “resign” – it will involve legal paper work. So this this over to avoid unnecessary hassle.
- Abatement – generally, any assets not specified explicitly to be given to which beneficiary will be the first to be liquidated to settle your debts.
This list above it not exhaustive but it covers most aspects many would have overlooked.
Bear in mind, a will by nature is “imperfect” as it is always subject to dispute or when an interested party wishes to challenge it. To resolve this, a private trust is the next solution for this matter. Which will be the subject of another future article.