• Chang Law Chambers

Probate & Letters of Administration

A grant of probate or letters of administration is used to administer or deal with a deceased’s estate. A ‘grant’ in these circumstances refers to a court’s authorisation of the deceased’s personal representative(s) to administer the deceased’s estate. Whether probate or letters of administration is required depends on whether or not the deceased passed away with a will or without. If he died leaving a will, probate can be obtained. However, if he died without a will, his representative will have to obtain letters of administration. Both processes require a grant from the High Court. The person who has obtained the authority to deal with the deceased’s estate is called the ‘executor’ in a probate case, or an ‘administrator’ in cases of letters of administration. Executors and administrators are regarded as the deceased’s personal representatives.

While the executor is usually named in a person’s will and hence there is little trouble establishing who should carry out the administration, who will be the administrator in cases of letters of administration? Under the relevant legislation, the most suitable person to be the administrator would be a beneficiary of the deceased’s estate. Who qualifies as a beneficiary in cases of letters of administration will be based on the Distribution Act and depends who the deceased leaves behind. For example, if he died leaving a spouse and children behind but had no living parents at the time of his death, under the Distribution Act, his wife would receive 1/3 of his estate and his children will receive 2/3.

Before proceeding with administration of the estate, the deceased’s representative will have to report the death and obtain a death certificate from Jabatan Pendaftaran Negara (“JPN”). In addition to details of the deceased’s assets, the court requires the original will (if there is a will) and the original death certificate to be handed over to the court.

Generally, obtaining a grant of probate is faster, simpler and cheaper than obtaining a grant for letters of administration. These factors in addition to having more control over how your estate will be distributed are some of the reasons why we highly recommend that you make a will. You may refer to our article on wills here for further reading.

Further, there are further requirements for letters of administration such as that the administrator is required to give security by bond with two sureties for an amount equal to the value of the estate. However, an exemption may be requested from the court if there are sufficient reasons.

General Procedure

After the personal representative has obtained the original will and death certificate, he may wish to find a lawyer familiar with obtaining grants of probate/letters of administration to help him draft the necessary documents (‘cause papers’) to support his application for grant of probate/letters of administration. Should you require such assistance, we would be pleased to assist you with such matters. Simply get in touch with us here. Once the cause papers have been drafted and filed with the court, a hearing date will be set by the court. The personal representative is generally required to attend this hearing together with his appointed solicitor. At the hearing, the Registrar will check that all the documents are in order and may inquire into any relevant matters. Assuming all documents are in order, the executor/his appointed solicitor may extract the grant of probate once it has been sealed by the court.

Personal representatives of the deceased’s estate have a duty to administer the deceased’s estate including the settlement of debts and liabilities of the deceased. If the personal representative is negligent in carrying out his duties, he may be personally liable and accountable. Once the estate has been distributed, the personal representative also has a duty to render proper accounts of the deceased’s estate to any beneficiary who requests for it. It is also good practice for the personal representative to obtain acknowledged receipts from the beneficiaries of their shares from the deceased’s estate.

Resealing of grant of probate / letters of administration

Where a grant of probate or letters of administration has been obtained in another Commonwealth country, the representative may apply for the grant to be ‘resealed’ in Malaysia. The process of resealing the grant would make it valid and recognised by the Malaysian courts and have the same effect as if the grant was obtained in Malaysia.

We hope that this article has provided some insight into the probate and letters of administration process. If you require assistance or have any questions regarding this subject matter, please get in touch with us.

*This article is for informational purposes only and is not intended to provide legal advice.

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