Will writing in Malaysia is an important part of estate planning and requires careful thought and consideration. This article explains the requirements of a valid will, the process of writing, and other tips.
Understanding Will Writing in Malaysia
A will, sometimes known as ‘last will and testament’ is a legal document stating how an individual's assets will be managed and distributed to his heirs according to his wishes after his death according to the inheritance laws.
The benefits of having a will as part of estate planning in Malaysia include:
Stating wishes
Firstly, it allows a person to state their wishes on how they want their assets to be distributed after death, and his instructions will be reflected in the will for the estate administration.
Choosing executor
Secondly, it allows the testator, who is the one making the will, to choose the executor. The executor is the person responsible for administering the estate after the testator’s death.
Ease of estate administration process
When there is a will and the testator passes away, the appointed executor can hire a lawyer to apply to the High Court of Malaya for a grant of probate to administer the estate and then distribute the assets to the beneficiaries. The probate process is also faster.
If one dies without a will in Malaysia, this is known as "intestate succession." The assets will not be distributed according to the wishes of the deceased. Rather, it is distributed according to the Distribution Act 1958, the intestacy law in Malaysia. This way of distribution may not always align with the deceased's intention.
Requirements for a Valid Will in Malaysia
Before starting any will writing in Malaysia, one should know a legal will needs to comply with the Wills Act 1959 with the following requirements:
Religion: The testator, the one making the will, must be non-Muslim/did not convert to Islam.
Age and mental capacity: The testator must be at least 18 years old and of sound mind, and understand that he is making a will with the declaration and the consequences of making the will at the time of writing.
Form: The will must be in writing, either typed or handwritten.
Key Components of a Will in Malaysia
After satisfying the basic requirements above and in the process of writing a detailed will in Malaysia, the testator should include these key clauses:
Revocation of previous wills
It states the revocation of previous wills made (if any) and clarifies that the current will takes effect over the other
Testator details
A valid will should also include the testator’s details. This includes the full name, identification number, and address.
Appointment of a legal executor
The executor is responsible for the estate administration, including collecting and holding assets, paying debts, and distributing the remaining assets to the beneficiaries. The testator should choose a trustworthy individual as an executor.
If there is no suitable executor, the testator can appoint a trust company to act as the executor, and they usually charge some fees. In choosing someone as an executor, the testator can consider the following traits:
(a) Trustworthiness: The executor should be trustworthy.
(b) Competence: He should have the right skills and abilities to perform their duties. This may include knowledge of law, finance, or other matters.
(c) Availability: The executor should be willing and able to allocate the time and effort required to perform his duties.
Identity of beneficiaries
The beneficiaries are persons or organizations that will receive the assets after the testator’s death and can include loved ones such as family members, charity organizations, and friends. It is recommended to include beneficiary details such as the names and identification details.
Distribution of assets
The testator should state how he wants his assets and financial legacy to be distributed among the beneficiaries. This can include specifying specific (etc: whole) or percentages of the assets (e.g.: 50%)
Many assets include funds (cash, bank accounts, stock accounts), immovable properties (houses), cars, and personal valuables. In the writing process, the testator can also include:
(a) Residuary clause: This is for those properties which are not stated in the will but the testator later owns. The testator can state these properties are to be given to certain beneficiaries.
(b) Alternate provision for the death of beneficiaries: If one of the beneficiaries passes away during the lifetime of the testator, then the gift will fall into residuary assets. Alternatively, the testator can name someone to receive that share if any one of the beneficiaries dies before the testator.
Appointment of a guardian
If the testator has minor beneficiaries, that is, children under 18 years old, then he should appoint a guardian to take care of them after his death. The guardian can be one of the family members.
This guardian is required under the law to hold the assets and inheritance (share from the will) on trust for the child until he reaches 18 years old.
Signatures
The testator must sign the will at the end of the will. At the same time, two witnesses who are not beneficiaries of the will must be present when the testator signs the will. These witnesses must also sign the will in front of the testator. After the will is in writing and signed and fulfils the above requirements, then it is a valid will.
After writing a will, the next step is for the testator to keep and store the will in some place and inform the executor about it. Alternatively, the testator can engage some 3rd party services for the custody of the will, such as for lifetime custody of the will
Testator Passes Away Having a Will
In the future, if the testator passes away after writing a will, then the appointed executor can hire a lawyer to apply to the High Court for a grant of probate under the Probate and Administration Act 1959.
During the probate application, the executor should submit supporting documents such as the original will, death certificate, list of beneficiaries, assets, and liabilities. This probate process usually takes between 2 and 5 months.
After getting the grant, the executor carries on the estate distribution by ensuring the assets will be distributed to the beneficiary named in the will. You can refer to the guide on grant of probate.
Tips for Writing a Will
Some tips for writing a will in Malaysia include:
Updating the will
The testator should review the will when there are big changes in personal situations such as marriage or remarriage and then make a new will to reflect their latest intention. A will automatically revokes upon marriage.
Be cautious of using online will templates
Many will writing Malaysia samples or simple will templates may not be suitable for your situation as one situation differs from one to another. Even though it is a basic will, those samples or templates might not fulfil requirements under the law and be suitable for your usage which leads us to the next point.
Hiring a professional to prepare the will
Lawyers, professional estate planners, individual estate planners, and banks can help you to prepare the will. We will recommend hiring a lawyer because:
(a) Legal knowledge and experience
They know the related laws to will, such as the Wills Act 1959 and Probate and Administration Act 1959 and are best suited to advise you on your queries.
(b) Other estate services
Lawyers can also offer other estate services apart from will-writing service. From our experience, sometimes clients may not require a will, but other tools such as power of attorney and trust deed in Malaysia for their legacy planning and retirement planning.
This is what an online will writing Malaysia service provider may not be able to provide.
(c) Value
The will writing Malaysia price differs from one to another. However, with the assurance and knowledge provided by a lawyer, this represents great value for money, even for a standard will.
Conclusion
Will is an important document to ensure your asset is distributed according to your wishes. If you need help with will writing in Malaysia or have any queries, you may contact us. Our experienced lawyers will assist you.
Frequently Asked Questions
1. Who is best to prepare a will?
We recommend you engage a lawyer to prepare your will, as they can help you ensure that it is valid and expresses your wishes on the distribution of your assets. Furthermore, they can provide other estate services for your legacy goals.
2. How long is a will valid in Malaysia?
If a will is valid in Malaysia, it remains valid until it is revoked by another will or by the marriage of the testator.
3. How much does it cost to do a will in Malaysia?
The cost of writing a will in Malaysia varies depending on how complicated the will is. It usually starts from a thousand ringgit. You can contact us to get a quote.
