As a Commonwealth country similar to Malaysia, the legal system of Australia are akin to that of Malaysia as both are largely based on the English legal system.
The administration of an estate where the deceased has left behind a will is the same in both Australia and Malaysia, with the named executor applying to the local courts for a grant of probate. An intestate estate, however where there is no will, shall be distributed according to the respective governing legislations in each country, namely the Distribution Act in Malaysia and the Succession Act in Australia. The appointed administrator will have to apply to court for a letter of administration. The order of priority for distribution is the same in both countries: spouse, children, parents, siblings, grandparents, with aunts and uncles being the last in line.
Priority is always given to the deceased’s spouse, children, and parents. Where the deceased only leaves behind a spouse, the spouse is entitled to the whole of the estate. Where the deceased only leaves behind children, the children are entitled to the whole of the estate, which shall be distributed equally amongst them. Where the deceased only leaves behind a parent or parents, they are entitled to the whole estate, which would be distributed equally amongst them if applicable. It is only when the deceased does not leave behind any spouse, children, or parents, that the siblings, grandparents, aunts and uncles will be entitled to a share in the estate.
However, where the deceased leaves behind multiple next-of-kin entitled to assets in both Australia and Malaysia, the shares that they will be entitled to will vary according to the succession laws in each country. For instance, where the deceased leave behind a spouse and children but no parents, in Malaysia, the spouse would be entitled to one-third of the estate and the children entitled to the remaining two-thirds of the estate. In Australia, the spouse and children will be entitled to half of the estate each. This disparity in intestacy rules means the same beneficiary will be entitled to different portions in each country; and depending on which country has the most or more valuable assets, the distribution may cause some unhappiness among a spouse in a second marriage and the adult children from a first marriage.
Our specialisation in estate planning for both jurisdictions has enabled us to assist many clients to plan ahead carefully in each will & testament to avoid unintended distribution under intestacy rules in both countries. Leaving one’s estate in more than one country to the operation of intestacy rules also increases the risk of incurring more legal costs in the administration of the estate.
To learn more on :
- How to separate your estates in Australia and Malaysia without contradicting either legal system
- Creating Wills / Legal Instruments which are in compliance with local legislation