FAQs: Wills

1. Why should I make a Will?

There are many reasons why one should make a Will. One core reason is that Wills safeguard your assets and your loved ones’ interest vested in your assets. By making a Will, you can determine the beneficiaries of your assets upon your passing and determine the distribution ratio of each beneficiary. If you pass away without a Will, i.e., intestate, your assets will be distributed to your beneficiaries in accordance with the Distribution Act 1958 and thus in a manner not determined by you. Furthermore, Wills do not only protect your assets, Wills allow you to determine who should assume legal guardianship of any your children below 18 years of age.

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

Yes, an individual who is 18 years old and above can prepare a Will. However, it is also a necessary that the individual is of sound mind at the time of preparation of the individuals’ Will.

3. 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 making my purchase?

If you want to divide all your assets equally among your children after your passing, your 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. If drafted as such, then no, there is no need to renew your Will after making your purchase.

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4. How many times can a Will be changed?

There is no limitation on the number of Wills one may prepare. However, the latest most recently amended Will prepared shall be the only Will that is enforceable.

5. 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?

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 date of your will is crucial in determining the validity of a Will.

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

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

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

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 firstly be inherited by his wife. Then all subsequent distribution of the wife’s assets shall thereafter be distributed in accordance to the Will of the wife.

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

No, a Will must be in writing to be enforceable. A Will recorded in the form of audio or video recordings would be unenforceable.

9. Can I make my own Will independently without legal assistance?

We strongly recommend 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 possibly invalid and unenforceable Will should you independently make your own Will.

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10. If I make a Will today, but die tomorrow, will my Will still be valid?

Yes, a Will made in the above-described circumstances will still be valid.

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Having a Will vs Not Having a Will

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1. If I don't have a spouse or children, do I still need to make a Will?

Yes, we strongly advise that you prepare a Will even in the above-described circumstances. Pursuant to intestate laws, your parents would 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 or may not be similar to the legislated distribution formula, it is highly desirable for a Will to be prepared to ensure that your assets are distributed as you intend for them to be.

2. If my parents have a Will, how long would it take for the assets to be accordingly distributed?

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

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

Legally speaking, your parents in the above-described situation have died intestate. For those who die intestate, the distribution of the deceased’s assets will be conducted in accordance with the Distribution Act 1958. Note that assets of intestate individuals will not be automatically transferred to their beneficiaries, i.e., family members. On the contrary, the estate of the deceased will be frozen. The next of kin of the intestate individual must apply for Letters of Administration in order to distribute the assets of the deceased, a process which is often lengthy and financially costly depending on the nature of the matter. This is why it is often recommended that individuals draw up a Will while they still can.

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4. I only have one property in my name and I do not feel that having a Will is necessary. Is that alright?

One of the main purpose of having a Will is to ease the allocation of your assets to your beneficiaries and dependents, irrespective of whether you have one or several properties under your name. Therefore, having only one property in your name is not reason enough to not make a Will. A Will guarantees that your loved ones would inherit your assets according to your wishes and prevent possible quarrels or disputes amongst beneficiaries. Moreover, without a Will, your beneficiaries would incur financial and time costs of having to go to court and apply for a letter of administration (in normal circumstances).

5. 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 my Will? Which method is more beneficial to my children and I?

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 with a 50% remission of stamp duty. Conversely, if your property is transferred via a Will, your children will only need to pay a nominal fee of RM10.00 of stamp duty. The latter fee applies to all changes of name (transfer of name on the title) through a Will.

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Marriage vs Will

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1. 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?

A Will made prior to marriage will be automatically revoked upon marriage, or remarriage, unless your Will expressly contains a ‘contemplation of marriage’ clause. Therefore, it is our advice that you may proceed provided you make sure the Will includes a ‘contemplation of marriage’ clause to ensure the Will’s validity after your marriage. 

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2. Will my divorce automatically invalidate my Will?

No, divorce unlike marriage does not automatically invalidate your Will. That being said, upon divorce, we suggest reviewing and amending your Will. 

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

If you intend to distribute your assets to all your children equally, it is perfectly fine to make a Will now provided your Will uses the term “children” without referring to the names of your children individually and that your Will states that your assets are to be distributed equally amongst them. 

Wills and Amendment 

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1. Under what circumstances should I amend my Will? 

We suggest that the following circumstances ought to prompt you to amend your Will: - 

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 of your Will dies / the executor of your Will is incapable of distributing your assets on your behalf; and

5. Your children turn 18 years old and therefore obtains the age of majority.

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Distribution of Wills

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

Yes you may donate as such, as you are free to distribute your inheritance. You will need to include in your Will information about your chosen charity to facilitate future enforcement.

2. I hypothetically did not make 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?

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

Therefore, it is only in the event where there are no other relatives that the Government acquires your assets.

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

Your assets will be distributed in accordance with section 6 of the Distribution Act 1958, as shown in the table below.