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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.

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.

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.

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.

Having a Will vs Not Having a Will

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.

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.

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.

Marriage vs Will

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. 

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. 

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 

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.

Distribution of Wills

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.

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.

何以称为合法的遗嘱?

1. 我为什么要⽴遗嘱?

答:⽴遗嘱的原因有许多,最主要之⼀是保护您的资产与您的⾄亲。⽴遗嘱可以让我们决定资产的受益⼈,并且可以决定受益⼈各⾃可享有的⽐率。如果没有⽴遗嘱,我们的资产必须根据《⻢来西亚1958遗产分配法令》进⾏分配,因此可能造成某些依赖我们的⼈⽆法获得任何利益。此外,若您的孩⼦是18岁或以上,您可选着孩⼦们的监护⼈。

 

2. 请问多少岁才能⽴遗嘱?

答:只要您满18岁以及在头脑清晰的情况下,您就可以⽴遗嘱。

 

3. 我想把财产平分,⽴遗嘱后我⼜想购买房产,那我需要重新⽴遗嘱吗?

答:若您离世后,想把所有财产平分给孩⼦,那您在之前的遗嘱⾥可清楚列明⽇后的所有财产都平分给孩⼦们。这样⼀来,您再购买房⼦后就⽆需再重新⽴新遗嘱。

 

4. ⼀份遗嘱可以更改多少次?  

答:⽆数次,可是能够⽣效的只有最新∕最后更改的那⼀份遗嘱。

 

5. 我在这之前⽴了⼏分遗嘱,可是他们都遗失了。最近,我⽴好了另份⼀遗嘱。如果在我去世后,任何旧的遗嘱被找到。哪份遗嘱会有效?

答:每份遗嘱都会写上⽇期,最新⽴下的遗嘱将有效,其余的将⼀并作废。因此,遗嘱的⽇期是⽤来鉴定最后⼀份遗嘱的关键资料。

 

6. 遗嘱需要盖印花吗?

答:遗嘱本⾝不需要盖印花,只需两位⻅证⼈(witness)的签名即可,请注意,⻅证⼈不能是受益者。

 

7. 夫妻同时离世,遗产怎么分配与根据谁的遗嘱来分配?

答:举例说明,若夫妻在⻜⾏失事双双离世,却不确定是谁先离世,那较年⻓的那个将被视为觉先离世者。假设丈夫的年龄⽐妻⼦的⼤,那丈夫的遗产将由妻⼦继承,在由妻⼦的遗嘱来分配遗产。

 

8. 通过电影看⻅的录⾳或录影形式来记录遗嘱可⾏吗?

答:⼀般上,⼀份遗嘱必须是以书写的⽅式来呈现,所以电影看⻅的录⾳或录影形式来记录遗嘱是不被接受的。

 

9. 我可以⾃⼰⽴遗嘱吗?  

答:我们强烈建议若您对法律知识不熟悉,切勿擅⾃⽴下遗嘱。如果⽴遗嘱者的法律知识不专业,或是⽂字表达能⼒不⾜,将有可能影响到遗嘱的合法性。

 

10. 如果我今天⽴下遗嘱,明天却去世,我的遗嘱有效吗?

答:是的,它是有效的。

 

有⽴遗嘱 VS 没⽴遗嘱

1. 要是我没有配偶或孩⼦,我需要⽴遗嘱吗?

答:需要的。如果您单⾝且没有孩⼦,可是您的⽗⺟都还建在,他们将获得您的全部财产。要是⽗⺟双双去世,您的财产将被分配给您的兄弟姐妹(包括同⽗异⺟兄弟姐妹)。

 

2. 若我的⽗⺟有⽴遗嘱,整项财产分配需时多少?

答:如果有遗嘱,遗嘱那会列明执⾏⼈,由他向法庭申请遗嘱查验(Probate)然后根据遗嘱分配,以此执⾏分配财产的任务,整项过程耗时3-6个⽉。

 

3. 若我的⽗⺟没有⽴遗嘱,我们该怎么处理⽗⺟的财产?

答:若没有遗嘱,遗产是不会⾃动转让予家⼈或亲属,相反的死者的遗产将被冻结。根据1958年分配法令,他的家庭成员必须申请遗产管理委任书(Letters of Administration)以便解开被冻结的遗产。这个⼿续将耗时数年,费⽤也昂贵许多。

 

4. 若我只有⼀间房产,没有其他财产,觉得没必要⽴遗嘱可以吗?

答:您⽴遗嘱是为了让后⼈⽅便,即使您只有⼀间房产,可是在没⽴遗嘱的情况下,您的亲⼈得来回法庭数10次来分配您的房产,这不但造成您亲⼈的不便也造成额外费⽤的⽀出,往往这笔费⽤⽐⽴遗嘱来的贵。

 

5. 我是⼀名⽗亲,我有3间房产,我需要现在转名给孩⼦还是通过遗嘱?哪个⽐较省钱?

答:若您在⽣时转名,您或您的孩⼦将⽀付50%的印花税(根据房⼦的价格推算);相对的若是以遗嘱进⾏产业转名,只需付10令吉,这项正式收费适⽤于所有通过遗嘱转名的产业。

 

6. 若我只有⼀间房产,没有其他财产,觉得没必要⽴遗嘱可以吗?

答:您⽴遗嘱是为了让后⼈⽅便,即使您只有⼀间房产,可是在没⽴遗嘱的情况下,您的亲⼈得来回法庭数10次来分配您的房产,这不但造成您亲⼈的不便也造成额外费⽤的⽀出,往往这笔费⽤⽐⽴遗嘱来的贵。

 

7. 我是⼀名⽗亲,我有3间房产,我需要现在转名给孩⼦还是通过遗嘱?哪个⽐较省钱?

答:若您在⽣时转名,您或您的孩⼦将⽀付50%的印花税(根据房⼦的价格推算);相对的若是以遗嘱进⾏产业转名,只需付10令吉,这项正式收费适⽤于所有通过遗嘱转名的产业。

 

婚姻 VS遗嘱

1. 我将在数⽉后结婚。我明⽩如果我现在⽴遗嘱,结婚将使我的遗嘱作废。这个时候,我应该怎么做?

答:你现在可以⽴遗嘱,不过必须添加⼀个条⽂说明你将要结婚不可将遗嘱作废。你必须将您未婚妻或未婚夫的姓名写在遗嘱⾥。

 

2. 离婚会使遗嘱作废吗?

答:离婚不像结婚,不会使遗嘱作废。如果你已离婚就应考虑更新你的遗嘱。

 

3. 我想把所有财富予我的⼦⼥,不过,在未来我可能会再有⼀位或多位⼦⼥。我是否有须要重新⽴遗嘱?

答:如果你有意让所有⼦⼥继承你的遗产平分,那你没有必要重新⽴遗嘱。你只是写(⼦⼥)此名词⽽不须列出孩⼦的名字。这意味着任何⽣存⼦⼥都能享有他的遗产。

 

什么状况下需修改遗嘱?

  1. 离婚∕再婚

  2. 改变姓名∕受益⼈改变姓名

  3. 更改受益⼈

  4. 执⾏⼈过世∕没有能⼒代表你分配遗产

  5. 当您的孩⼦已满18岁。

 

遗嘱分配

1. 若我想把遗产捐给慈善机构,可以吗?

答:可以的,您可以⾃由分配你的产业。可是您需要在遗嘱⾥清楚列明该慈善机构详细的资料及名称,以⽅便⽇后的执⾏者。

 

2. 若我没⽴遗嘱,没有⽗⺟,没有配偶和没有⼦⼥,待我离世后,政府会征收我的产业与财产吗?

答:当⼀个⼈去世时⽽没有⽴遗嘱,没有⽗⺟,没有配偶和没有⼦⼥。全部遗产根据下列顺序分配:

兄弟姐妹 -> 祖⽗⺟ -> ⽗⺟的兄弟姐妹 -> 曾祖⽗⺟ -> 曾祖⽗⺟的兄弟姐妹 -> 政府

总结,若您在这世上没有任何亲⼈,政府才拥有权⼒来征收您的产业与财产。

 

3. 若我没⽴遗嘱,可我有⽗⺟,配偶及⼦⼥,待我离世后,遗产会怎么分配?

答:根据根据1958年分配法令,第六项,请看下图:

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