How is a Will legal?

  1. Question: Why should I make a Will?

Answer: There are many reasons for a Will to be made. One vital reason is to protect your assets and your loved ones’ interest. By making a Will, you are able to determine the beneficiaries of your assets upon your passing and determine the distribution ratio of each beneficiary. If you pass away without a Will (intestate), your assets will be distributed in accordance with the Distribution Act 1958 in Malaysia. Therefore, the distribution of intestate estate is governed by the relevant legislations and your dependents may not obtain all the benefits which you have intended for them, if any. Wills do not only deal with your assets. It also allows you to choose who you would chose to be the legal guardian of your children who are below 18 years of age.

 

2. Question: Is there a legal age to make a Will?

Answer: An individual who is 18 years old and above can prepare a Will. However, it is also a necessity for individuals to be of sound mind at the time of preparation of the individuals’ Will.

 

3. Question: I wish to divide my assets evenly when I pass away. I have a Will now, but I am planning to purchase another property. Do I need to renew my Will after my purchase?

Answer: If you want to divide all your assets equally among your children after your passing, you Will can be drafted to specify that all your assets (before and after your Will is made) is to be divided equally among your children. In this instance, you will not need to prepare a new Will after buying a new house.

 

4. Question: How many times can a Will be changed?

Answer: There is no limitation on the number of Wills one may prepare. However, the latest / last amended Will that you had prepared shall be the only Will that is enforceable.

 

5. Question: I have prepared a few Wills prior to this which have since been lost. Recently, I have made another Will. Upon my passing and in the event that any of my previous wills are discovered, which Will would be valid?

Answer: The latest dated Will shall be the only valid and enforceable Will. Any other Will prepared prior to that will be invalidated and is no longer enforceable. Therefore, the dates of your will is pivotal in order to identify the validity of a Will.

 

6. Question: Are Wills required to be stamped at the stamp office?

Answer: The Will by itself does not need to be stamped. However, your execution of your Will must be witnessed by two witnesses who are not beneficiaries.

 

7. Question: How are assets distributed according to the Will of a husband and wife, who had both nominated each other as beneficiaries in their respective Wills, passed away at the same time?

Answer: Hypothetically, if both husband and wife had passed away in a flight accident, it would be uncertain as to who would have passed away first. Under these circumstances, the party who is older will be regarded as the one who had passed away first. Assuming that the husband is older than the wife, the husband ’s assets will be firstly be inherited by his wife. All subsequent distribution of the wife’s assets shall then be distributed in accordance to the Will of the wife.

 

8. Question: Is it legal to record Wills in the form of audio recordings or videos as seen in movies?

Answer: A Will must be in writing to be enforceable. A Will recorded in the form of audio or video recordings would hence be unenforceable.

 

9. Question: Can I make my own will?

Answer: We strongly suggest that you do not make your own Will. As there are various requirements and restrictions in order for a Will to be valid and enforceable, you run the risk of preparing a Will that would be deemed as invalid and unenforceable.

 

10. Question: If I make a Will today, but die tomorrow, is my Will valid?

Answer: Yes, it is valid.

 

With a Will vs Without a Will

  1. Question: If I don’t have spouse or children, do I need to make a Will?

Answer: Yes, we strongly advise for you to prepare a Will even in this circumstance. Pursuant to intestate laws, based on the aforementioned scenario, your parents will be the beneficiaries of your estate in the event that they are alive. However, if both of your parents have passed away, your assets would be distributed to your siblings. As your desire to distribute your assets may not be similar to the distribution formula legislated, it is highly desirable for a Will to be prepared to ensure that your assets are distributed as you would intend.

 

2. Question: If my parents have a Will, how long will it take to distribute the assets?

Answer: If there is a Will, the executor of the Will, will apply to the court in order to obtain a Grant of Probate. Upon obtaining a Grant of Probate, assets will be distributed pursuant to the Will. The entire process generally would take about 3-6 months, depending on the complexity of the matter.

 

3. Question: If my parents had passed away and they do not have a Will, what should I do with their assets?

Answer: For those who die intestate, the distribution of the deceased’s assets will be conducted in accordance with the Distribution Act, 1958. Please note that assets of individuals will not be automatically transferred to beneficiaries of the deceased. On the contrary, the estate of the deceased will be frozen. The next of kin of the deceased must apply for Letters of Administration in order to distribute the assets of the deceased which process may be lengthy and highly costly depending on the nature of the matter.

 

4. Question: I only have one property and do not feel that having a Will is necessary. Is that ok?

Answer: No. One of the main purpose of having a Will is to ease the allocation of your assets to your beneficiaries and dependants. When you make a Will, you can be ensured that your loved ones would inherit your assets according to your wishes and prevent possible quarrels or disputes amongst beneficiaries. Without a Will, your beneficiaries would have to go to court and apply for a letter of administration (in normal circumstances) which would be a more lengthy and costly process.

 

5. Question: I am a father and I have 3 properties. Do I need to transfer my name to my children when I am still alive or I am able to transfer my property to them through a Will? Which method is more beneficial to my children and I?

Answer: If you want to transfer your property to your children by way of love and affection whilst you are alive, you or your children will still need to pay stamp duty over the transfer of the property (calculated based on the value of the property) albeit having a remission of 50% of the stamp duty In contrast, if your property is transferred via a Will, your children will only need to pay a nominal fee of RM10.00 of the stamp duty. The latter fee applies to all changes of name (transfer of name on the title) through a Will.

 

6. Question: I only have one property and do not feel that having a Will is necessary. Is that ok?

Answer: No. One of the main purpose of having a Will is to ease the allocation of your assets to your beneficiaries and dependants. When you make a Will, you can be ensured that your loved ones would inherit your assets according to your wishes and prevent possible quarrels or disputes amongst beneficiaries. Without a Will, your beneficiaries would have to go to court and apply for a letter of administration (in normal circumstances) which would be a more lengthy and costly process.

 

7. Question: I am a father and I have 3 properties. Do I need to transfer my name to my children when I am still alive or I am able to transfer my property to them through a Will? Which method is more beneficial to my children and I?

Answer: If you want to transfer your property to your children by way of love and affection whilst you are alive, you or your children will still need to pay stamp duty over the transfer of the property (calculated based on the value of the property) albeit having a remission of 50% of the stamp duty In contrast, if your property is transferred via a Will, your children will only need to pay a nominal fee of RM10.00 of the stamp duty. The latter fee applies to all changes of name (transfer of name on the title) through a Will.

 

Marriage vs Will

  1. Question: I will get married in a few months. I understand that if I make a Will now, my marriage will invalidate my will. Should I still make a Will now?

Answer: Your Will made prior to your marriage shall be automatically revoked upon your marriage, or remarriage, unless your Will expressly provides for a ‘contemplation of marriage’ clause.

 

2. Question: Will my divorce automatically invalidate my Will?

Answer: No. Divorce unlike marriage does not automatically invalidate your Will. If you are divorced, you should consider renewing / amending your Will.

 

3. Question: I want to distribute all my assets to my children, but in the future I may have more children. Do I make a Will now or later?

Answer: If you intend to distribute your assets to all your children assets equally, you may make a Will now. Your Will should use the term “children” without listing the names of your children and to state that your assets are to be distributed equally. Hence, all your surviving children will be able to be the equally be beneficiaries of your estate.

 

Under what circumstances should a Will be amended?

  1. Divorce / Remarriage
  2. When there is a change of name of yourself or any of your beneficiaries.
  3. Where there is a change of beneficiary.
  4. The executor dies / the executor is incapable of distributing your assets on your behalf.
  5. our children becomes 18 years old (obtains the age of majority).

 

Distribution of Wills

  1. Question: Am I able to donate my assets to charity?

Answer: Yes, you can freely distribute your inheritance. However, you need to clearly state necessary information such as the name and details of the charity in your Will to facilitate future enforcement.

 

2. Question: I don’t have a Will. What if I pass away without a spouse, children, and my parents have also passed away? Will the government acquire my assets after my death?

Answer: If you pass away without a Will in the above circumstances, your assets will be distributed in the following order:

Siblings-> Grandparents-> Siblings of parents-> Great grandparents-> Siblings of great grandparents-> Government

Only in the event where there is no other relatives would the Government be able to acquire your assets.

 

3. Question: If I did not make a Will, but I have parents, spouse and children, how are my assets going to be distributed upon my passing?

Answer: Your assets will be distributed in accordance to section 6 of the Distribution Act 1958, as shown in the table below :-