If you are from overseas, drawing up a local will to protect your spouse and family is an essential task. If you have only one will covering your overseas assets, your loved ones residing in Malaysia will have to wait for your overseas estate to be concluded before being allowed to release your monies here. From our previous dealings of expatriates’ demise, failure to have a local will has resulted in many a dire situation of lost of cash flow to the dependents when the overseas estates’ execution are either delayed or in deadlock.
If the deceased leaves behind a will here, according to the Malaysian Probate and Administration Act 1959, the executor appointed in the will must first apply for a Grant of Probate in the High Court before the estate can be distributed.
If there is no will left by the deceased, the estate will be governed by intestacy rules. The family members of the deceased will have to appoint an administrator to apply for a Letter of Administration (“LA”). Without a will to convey the deceased’s intentions, the Distribution Act 1958 will determine how the estate shall be distributed. The beneficiaries recognised by the intestacy laws are spouse and children. If there are no children, then parents of the deceased will share with the surviving spouse in equal shares. This proportion of distribution may not be intended at all by the deceased.
But if there is a will spelling out the deceased’s wishes, there will be less room for conflict among the family members with regards to the estate distribution. From the onset, the selection of an administrator in an intestacy situation could be an issue with sibling rivalry in some families. For the expat who are in a second or third marriage, children from previous marriages are also entitled to act as an administrator. To then attempt to get consent from all the children of the deceased before the estate can be administered is an ominous task.
Another advantage to have a local will is that the probate procedure is faster by a few months compared with an LA petition. Where the deceased own property here, a will is absolutely essential as an additional court order is required, easily doubling the legal costs and timeframe of the estate administration when no will is left for Malaysia.
Further, Malaysia My Second Home (“MM2H”) visa holders’ dependents have a duty to inform the necessary Ministries within 3 months of the principal holder’s demise. This requirement alone would put tremendous strain on the surviving spouse to handle probate, let alone an LA application.
For the working expat on a talent or employment visa who make contributions to the Malaysian Employees Provident Fund (“EPF”) after 1st August 1998, the accumulated savings can only be distributed by way of a will on a demise. To ensure that your EPF savings will go to your intended beneficiaries, it is imperative that you have a legally valid will here to include your EPF savings. This enables a speedy pay out to your loved ones in the event of your demise, and avoids the additional cost and hassle which rules of intestacy may cause.
A will not only dictates how your estate should be distributed; it is a last act of love for your family in that you have ensured that they are fully protected, especially in a foreign pandemic-hit country. As the saying goes: two things are certain in life, death and taxes!