Estate, Deceased, Will, Intestate, Property, Probate, Letter of Administration, Distribution, Distribution Act 1958
Highlights:
- If there is a Will, the estate of a deceased will be distributed as per the Will. If not, the Distribution Act 1958 (for non-Muslims) or Faraid (for Muslims) applies.
- A Grant of Probate or Letter of Administration must be obtained before the estate and/or properties of a deceased are distributed.
- Before distribution, all liabilities, including funeral costs, taxes, and debts of the deceased, must be settled.
- The estate of a non-Muslim deceased will be divided according to the Will or Distribution Act 1958, which typically divides the estate among the surviving spouse, children, and other relatives. Meanwhile, for a Muslim deceased, the estate is distributed according to Islamic law (Faraid), which allocates specific portions to heirs depending on the family structure.
Q1. What is the difference between Probate and Letter of Administration?
Probate and Letter of Administration are two important legal processes in estate distribution. Probate is the legal process that confirms the validity of a Will and appoints the executor/executrix to distribute the deceased’s estate.
Letter of Administration is granted when someone dies intestate (without a valid Will). An administrator is appointed—usually a close relative—to distribute the estate according to the law (Distribution Act 1958 or Faraid).
Q2. Who is entitled to inherit the estate of a deceased in Malaysia?
If the deceased left a valid Will, the estate is distributed according to the Will. If not, the Distribution Act 1958 (for non-Muslims) or Faraid (for Muslims) applies. Legal heirs include the spouse, children, and parents.
Q3. What happens to the estate if the deceased has outstanding debts?
The estate must first settle any outstanding debts before distributing assets to beneficiaries.
Q4. How is the deceased’s estate distributed according to the Distribution Act 1958?
Section 6 of the Distribution Act 1958 provides that if a person dies intestate, the estate shall be distributed according to surviving heirs. The breakdown is illustrated below:
Q5. Can a deceased’s estate be distributed differently than what the Distribution Act 1958 dictates?
Yes. A person can distribute their estate as they wish through a valid Will. If there is no Will, but all beneficiaries agree, the estate can be distributed based on mutual agreement even if it differs from the Act.
Q6. What if one dies intestate, leaving no spouse, no issue, and no parent?
If a person dies intestate and leaves no spouse, children, or parents, the estate will be distributed in this order of priority:
- Brothers and sisters – equal shares
- Grandparents – equal shares
- Uncles and aunts – equal shares
- Great-grandparents – equal shares
- Great uncles and aunts – equal shares
- Government (if none of the above) – whole estate10
Q7. Do grandchildren inherit if their parent (the deceased’s child) died first?
Yes. The word “issue” in the Act includes children and descendants of deceased children. Therefore, grandchildren are entitled to inherit their parent’s share.
Q8. What happens if a person dies leaving behind a pregnant wife?
The wife is entitled to inherit as the surviving spouse. If the child is born alive, the child is also considered a legitimate heir and will inherit a share of the estate.
Q9. Can an adopted child inherit the estate?
For non-Muslims, adopted children are entitled to inherit like biological children under the Adoption Act 1952. For Muslims, adopted children generally cannot inherit unless mentioned in a Will (up to one-third of the estate).
Q10. Is an illegitimate child entitled to inherit the deceased’s estate?
Yes. As ruled by the Federal Court in Tan Kah Fatt & Anor v. Tan Ying [2023], the definition of “issue” includes blood relations, regardless of legitimacy.
Q11. What is partial intestacy?
If a Will only covers part of the estate, the remaining unmentioned assets are distributed under the Distribution Act 1958. For example, if a Will only mentions the house but not the car or savings, the house follows the Will, while the rest follows the Act.
Footnotes:
- Section 6 of the Distribution Act 1958 (“DA 1958”)
- Section 6(a) of DA 1958
- Section 6(b) of DA 1958
- Section 3 of DA 1958 – “issue” includes descendants
- Section 6(c) of DA 1958
- Section 6(d) of DA 1958
- Section 6(e) of DA 1958
- Section 6(f) of DA 1958
- Section 6(g) of DA 1958
- Section 6(j) of DA 1958
- Section 8 of DA 1958 – Partial Intestacy
