Will and Estate Administration

What Constitutes a Will?

Will is a legal document whereby you declare your wishes in writing on how 1/3 of your estimated assets are to be distributed to any person of your choice after you passed on. Syariah Law allows you to be queath up to 1/3 of your entire assets through your Will to your non Faraid heir while reserving the other 2/3 portion for your lawful beneficiaries under the Islamic Law of Faraid.

Will only takes effect after the death of atestator. Atestator is the author of a Will. Therefore, the testator is free to deal with his assets during his lifetime including to revoke, amend or substitute his Will and/or to give his asset to any person he pleases by way of gift (hibah) or alternatively, to sell or transfer or lease or rent or invest his assets or any portion thereof as he deems fit.

Will is a tool for you to distribute your wealth to non Faraid heirs such as your beloved grandchildren, adopted child, illegitimate child, foster parents or any other persons you desire. Will allows you to manage your assets. You may appoint a qualified and trustworthy person of your choice as the executor to execute your Will and manage your estate.

You may also stipulate the substitute executor in advance in the event the appointed executor predeceased you or he revokes the executorship or he later moves far from your assets and beneficiary, thus making it impractical for him to complete his job expediently. There are also instances where a Will requires more than one executor to administer an estate. You may appoint your trusted guardian that you know best to take care of your minor or disabled children and old-aged parents through a Will.

The guardian may also act as the trustee for the assets of your minor children. The executor of your Will can also become the Trustee and Guardian of your children

It is not a legal requirement that a Will should be drawn by a lawyer but it may have some pitfalls and loopholes as Will takes effect after death and the maker cannot comeback to explain any ambiguities or correct any mistakes.

A well-structured Will shall ensure the interest of your heir are safeguarded, guaranteed and preserved in a professional manner. Moreover, a lawyer or legal firm shall also ensure the proper execution of the Will and compliance with legal requirements. This is vital to minimize chances of other interested parties to challenge the validity of the Will later.

A legal firm can also provide a safe custody of original Will together with all relevant documents on the assets listed in the Will making it easier for the heir and the executor to perform his task. A Will can avoid inheritance disputes and family conflicts. It makes things a little smoother in troubling times. Generally, a Will must be in writing.

A written Will must be signed by the testator in the presence of at least 2 witnesses who shall sign at the end of the Will. The original copy of the Will must be produced prior to administration process of the Will.

If a person cannot produce an original Will, there is a presumption that the testator might have an intention to revoke or destroy with the intention to revoke his Will.

Generally, there are three parties who are involved in the administration of the Will, namely, a testator, an executor and the beneficiaries.

(a) Testator

A testator is the author of the Will. A testator must be a natural person having testamentary capacity. Testamentary capacity means an individual of 18 years and above, competent, sound mind, free from undue influence and a free person.

A testator must not be prohibited to administer his property (such as a bankrupt) and should have possession (ie legal and beneficial ownership) over his property.

According to Section 6 of the Selangor Muslim Wills Enactment, 1999, a person who is not competent to be a testator according to Islamic Law, his Will is not valid except with the consent and authorization of the Court.

(b) Executor

An executor is the person appointed by the testator to execute his Will and administer his assets. The testator may appoint up to four executors depending on the size or nature of the estate and complexity of the Will.

It is advisable to appoint more than one executor so that the substitute executor can replace the first executor in the event the first executor renounces his executorship or predeceases the testator.

It is also advisable to inform the executor on his appointment, so that he will not renounce later and also to brief and give him a copy of the Will and to tell him where the original Will is kept.

One may also appoint a trust company as the executor and also trustee of your Will. The beneficiary of an estate can also be the executor, naturally, the spouse or eldest child of the testator. The executor can also be the trustee and guardian in a Will.

An executor is entitled for a reasonable commission for the time spent and effort put in administering the estate, depending on the total value of the estate he collected.

The roles of an executor are as follows:

• locating the Will, the beneficiaries, the assets, the witnesses and other information;
• applying to the High Court for the Grant of Probate;
• paying all liabilities (debts, funeral arrangement and expenses, legal fees, Executor‘s commission and other expenses) from the Estate;
• distributing the assets in accordance with the Will; and
• preparing the statement of account, if required.

The executor may also take up the role of a trustee in holding your assets on a trust for your beneficiaries until it is fully distributed.

(c) Beneficiaries

Beneficiaries are persons designed to receive benefit from the Estate. The beneficiaries must be known and exist and competent to own the asset. He must not be the murderer of the testator.

The beneficiaries of a Will must not be the heir who receives the benefit under the Faraid unless not exceeding 1/3 of the Estate or all the lawful heir consented after the death of the Testator.

A Will must be witnessed by two males or two females in place of one male. The witness must be above 18 years of age and he must not be one of the beneficiaries i.e. the persons who receive benefit under the Will or their spouses.

The witness must be independent from the estate and must not be interested party to avoid any conflicts. It is advisable to find the witnesses among family friends, relatives and easy to locate persons.

Conclusion

Estate planning is certainly not a pleasant task as you are acknowledging your own demise. However, careful planning on the management of your estate is the most important thing to be done for your loved ones.

Putting your wishes on paper helps your heirs to avoid unnecessary hassle and giving yourself a peace of mind knowing that a life’s worth of possessions will end up in the right hands

Written by:

Wan Nureta Wan Abd Muttalib (general@azmilaw.com)