FAQs

Preparing a Will

A will is a legally binding document where you state your wishes for how your estate should be distributed when you pass away. A will may also be used to appoint guardians to take care of your minor children, and executors to manage your estate on death.

If you die without a will in place the ‘rules of intestacy’ will apply. This will mean that your estate will be distributed according to provisions of the Distribution Act 1958 (as amended in 1997). This may mean that your assets end up passing not in accordance to your preference.

Under the Distribution Act 1958 (as amended in 1997), the distribution among the spouse, parents and issue of the deceased is as below:-

If there are surviving spouse, parents and issue, the distribution is:-

  1. Spouse 1/4,
  2. Parents 1/4 and
  3. Issue in equal shares of the remaining 1/2.

If there are surviving spouse and parents only and no issue, the distribution is:-

  1. Spouse 1/2 and
  2. Parents remaining 1/2.

If there are surviving spouse and issue only and no parent, the distribution is:-

  1. Spouse 1/3 and
  2. Issue in equal shares of the remaining 2/3.

If there are surviving parents and issue only and no spouse, the distribution is:-

  1. Parents 1/3 and
  2. Issue in equal shares of the remaining 2/3.

Please note:- Issue: Includes children and the descendant of children.

To make a will you must be over 18 years old (for Peninsular Malaysia and Sarawak); 21 years old and above (for Sabah). To make a will, you must have ‘testamentary capacity’. This is the mental capacity to understand and make a will. You must be able to understand:
  1. The nature and effect of making a will
  2. The size and nature of your estate (what you own)
You must also not be suffering from any mental disorder that effects your ability to make a will.
As long as you have testamentary capacity you are free to change or revoke your will as you please. We recommend that you review your will every 3-5 years or on certain life events such as marriage, divorce, birth of children, death of any beneficiary, or if your financial situation changes.

Mirror wills are two separate wills usually made by a couple. These wills are reciprocal and usually appoint the same executors and make the same gifts – they ‘mirror’ each other. If you and your spouse make wills leaving everything to each other and then on to your children these would be simple mirror wills.

Will writing is not a reserved legal activity, so you don’t have to instruct a lawyer to draft your will. You can draft your will yourself, however if you have a huge estate and detailed wishes for a comprehensive will, we recommend that you seek our professional advice.

Executors and Trustees

A natural person above the age of 18 years old or a Trust Company.

Executors are the people you choose to stand in your shoes and deal with your estate after you are gone. Broadly, their duties include locating all of your assets, paying your funeral expenses and any outstanding debts, and making sure your estate is distributed to the beneficiaries you have named in your will.
A trustee’s role differs from an executor’s, even though it is common to appoint the same people in both roles. A trustee will manage any ongoing trusts that are created by your will, so they will take over responsibility for any assets left to trust once the executors have completed the administration.
You need a minimum of 1. You can name maximum 4 whom can act at the same time.
Yes, they can. It’s quite common to name the people who will be inheriting your estate as the people who will benefit from it.
No, you can appoint your family or friends as your executors or trustees as long as they are adults and have mental capacity. If your estate or your wishes are complicated you may want to consider appointing a professional such as a trust company to act though.

Guardians

A natural person above the age of 18 years old.
Guardians are people who you appoint to take on the care of your minor should you pass away while your children are under 18. You can appoint guardians in your will, and we recommend you do so if you have minor children.
Most people with minor children already have a good idea of who they’d want to care for their children if the worst happened. The main things to consider are your proposed guardians’ own situation and experience with children, their preparedness to act, your children’s relationship with them, their physical location – would the children need to relocate? It’s also important to consider how the children would be looked after financially.
It is very common for the guardians to be executors. It normally follows that if you trust someone to take care of your children, then they should have some form of access to the assets of the estate to provide for your children.

Miscellaneous

When there is a Will left behind by the deceased, the immediate family will apply for a GP. However, when he/she dies without a Will, the family member has to apply for a LA.
An authority given under the seal of the Court for the administration of the estate of a person who has died without leaving a Will.
A Court order that formally authorizes the executor to administer the deceased’s estate according to the Will.
It will become legally binding upon execution with two independent witnesses and is written according to the Wills Act 1959.
No, both the witnesses and the testator must sign the Will at the same time. The function of the witnesses is to confirm and verify that the testator is of sound mind.
No. A beneficiary or his/her spouse must not be a witness. If he/she does, then he/she will lose his/her share in the Will. However, this will not affect the validity of the Will.
Under the Law, two witnesses are required to be present when the testator signs his/her Will. The purpose of their presence is to confirm that the testator is of sound mind and aware that he is signing a Will.
No, they need not read your Will or know the contents of your Will. They merely confirm that you are of sound mind and you sign the Will in their presence.
No, they need not appear in Court. However, if there is a contest on the validity of the Will, the Court might need the witnesses to appear in Court to prove that the testator was of sound mind when he/she signed the Will.
Yes, only the movable assets in a foreign country. The immovable assets will follow the law of the country where the property is situated and it may be advisable to write a separate Will for the specific immovable assets in that foreign country.
A person is legally capable of holding property upon attaining the age of 18.
No, under the Will Act, a Will need not be stamped.
Definitely. A Will only takes effect upon your death and till the you have control to deal with these assets.
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