Malaysia being a part of the Commonwealth derived its legal system from the English legal system.
Where the deceased has left behind a will, the execution procedure in the courts are the same in both United Kingdom and Malaysia, with the named executor applying to the local courts for a grant of probate. For a British expatriate residing in Malaysia either on work or retirement purposes, having a will to provide for each estate respectively is highly recommended for practical reasons set out here below.
Where there is no will drawn up to provide for the deceased’s intentions, the estate shall be distributed according to the respective governing legislations in each country, namely the Intestates’ Estates Act 1952 in U.K. and the Distribution Act 1958 in Malaysia. The order of priority for distribution is very similar in both countries: spouse, children, parents, with siblings and other next of kin being last in line.
For U.K, the distribution under intestacy where the deceased leaves a spouse and children; one half for the surviving husband or wife and the other half for the children. Whereas for Malaysia, where the deceased leaves a spouse and children; one third for the surviving husband or wife and the other two third for the children. Where there is no children but surviving parents, the spouse and parents of the deceased inherit in equal shares ie. half each respectively.
For both intestate estates in U.K. and Malaysia, the administrator will have to apply to court for a letter of administration. The appointment of the administrator must be consented to by all the beneficiaries entitled. Sometimes, beneficiaries cannot agree who amongst them is the one to be appointed. This could cause the estate to be in deadlock even at this initial stage of the administration, which may have to be resolved by litigation in the courts.
It is common for British expats’ estates back home to be the larger one (commonly with inheritance from parents forming part of that estate), whereas in Malaysia, it is usually the standard property or two, bank accounts, Malaysia My 2nd Home (MM2H) bond monies, vehicles, club memberships and/or personal effects. To wait for the completion of probate from U.K. to be then resealed to be applied to Malaysia may result in loss of cash flow to the beneficiaries in Malaysia. In addition, U.K. has inheritance tax to be paid whereas Malaysia has zero inheritance tax payable which facilitates ease of distribution of one’s Malaysian estate.
Our specialisation in estate planning for both jurisdictions has enabled us to assist many clients to plan ahead their estates for each country to prevent delay in execution and release of monies necessary for the living expenses of the surviving spouse and/or children in Malaysia. This practice is supported by our British clients’ U.K. solicitors’ whose advice is to have a separate will drawn up for Malaysia. Execution of each estate can then be dealt with smoothly and without much legal fuss, thereby resulting in cost savings as well.
To learn more on :
- How to separate your estates in U.K. and Malaysia without contradicting either legal system
- How to draw up Wills / Legal Instruments which are in compliance with local legislation to smoothen execution in Malaysi