What Happens If My Will Cannot Be Found

Drawing up a will is one of the most important task that you can do for you and your family  after every milestone of life, like marriage, or  the birth of a child.   

A person who passes away with a valid will is known as a testator. The executor named in the will is responsible for handling the estate which comprise all assets, money, property and otherwise. According to the Malaysian Probate and Administration Act 1959, the executor must first apply for a Grant of Probate in the High Court. Once the Grant of Probate is extracted, the executor must pay off the debts and liabilities of the testator before distributing the remainder of the estate according to the will.

If you have written a will, but your original will is lost, destroyed or  contents not legible, it is deemed as if  you have no will, hence your estate is then intestate.  For expatriates retiring or living abroad, often with adult children living overseas, it is essential to make sure that the original will is available for execution purposes as only the original is acceptable by the Malaysian High Court.  If the situation arise where the original will is not available, then a different and more tedious process called Grant of Letters of Administration is then applied for.  This process may take twice as long and sometimes double the legal costs if for example beneficiaries are not in agreement on who is to act, or in doubt about what or where are the assets.

The other difficulty that may arise where the original will is not available is that the family members of the deceased will have to appoint, among themselves,  a representative, known as the administrator, to deal with the estate.  Sometimes, the selection of who is to represent the group of beneficiaries face difficulty or even deadlock where there is sibling rivalry or disagreement history among family members.  Further, without a valid will, the Malaysian Distribution Act 1958 will determine how the estate will be distributed. The order of priority is spouse, children, and parents.  Then comes siblings, grandparents, uncles and aunts.

When the original will is available and accessible to ensure that a Grant of Probate can be extracted with the minimum of fuss and protraction or delay, there will be lesser arguments between your family members as to how your estate should be distributed.  Until the Grant of Probate or Letters of Administration is extracted  and used to release your assets and monies, your family will have limited or no access.  The procedure under probate is faster by a least a few months in most cases. 

Further, Malaysia My Second Home (MM2H) visa holders have a duty to inform the necessary Governmental Ministries within 3 months of the principal holder’s demise, so this would put tremendous strain on the surviving spouse to handle probate, let alone an intestacy situation.

If you have written a will as a last act of showing practical love to fully protect your family members, do take the added measure needed to also protect the existence and validity of the original will such as having safe custody with a professional or trust corporation.  This measure of guarantee is akin to buying an insurance policy on your will.  The equivalent sum of “premium” paid towards the important goal of being able to execute on your estate under probate is a small price to pay compared with the risk of your estate going into intestacy; which in the long run will incur more legal costs, not to mention the added stress for the beneficiaries.

To learn more on :

  • How to protect your estate by protecting your original will’s storage and custody
  • Creating Wills / Legal Instruments with the correct legal terms to ensure that your intentions will be carried out
Share on facebook
Share on twitter
Share on linkedin

About the author

Ms. Kim Khoo

P.J.K, C.L.P., LL.B (Hons) London
Principal Legal Consultant