Letters of Administrations: What to do when your loved one passed away without a will

What are Letters of Administration?

Whenever a person passed away, the first issue that needs to be determined is whether the deceased had left a will. If the deceased did not leave a will, Section 30 of the Probate and Administrations Act 1959 empowers the Court to make an order for a Grant of Letters of Administration to a person who will be then known as the Administrator. It is only upon the Court making an order for a Grant of Letters of Administration, all the deceased’s properties will vest in the Administrator. 

If there is a valid and enforceable will, the executor named in the will would then need to apply for a Grant of Probate instead.

For more information on Grant of Probate Click Here <Link to Grant of Probate Article>

Who may be an Administrator

Section 30 of the Probate and Administration Act provides that the Court will only appoint someone who “is interested in the estate of the deceased persons”. 

In the event there exist a beneficiary who is below the age of 18, Section 4(1) of the Probate and Administration Act would require at least 2 administrators to be appointed by the Court or a Public Trust Corporate to be appointed as an administrator. This usually occurs when the deceased has a child who is still below the age of 18.

When is a Grant of Letters of Administration unnecessary? 

It should be noted that there are several circumstances in distribution of assets where a Grant of Letters of Administration is not required when a person passes away without a will. 

1. Section 3(2) of Small Estate Distribution Act 1995 which was amended by Section 5 of the Small Estates (Distribution) (Amendment) Act 2022 provides that the District Land Administrator has jurisdiction to distribute the deceased’s assets if the value of the assets of the deceased does not exceed RM5,000,000.00.
2. Under Statutory Nominations such as the EPF Act and EPF Rules, a Nominee does not require any Grants of Representation to obtain their benefit under the Nomination¹.
3. Section 17 of the Public Trust Cooperation Act states that Amanah Raya Berhad may agree to administer the deceased’s estate if:

1. The total value of the deceased’s property does not exceed RM50,000.00;
2. The assets of the decreased is entirely moveable; and
3. There is no application for the Grant of Letters of Administration pending in the High Court.

Who are the Beneficiaries of the Deceased’s Estate?

Section 6 of the Distribution Act 1958 provides that the deceased’s child, parent and spouse are generally the only beneficiaries of the deceased’s estate. It is only if there are no surviving child, parent or spouse other family members such as the deceased’s siblings may become beneficiaries.

What are the Procedures for a Grant of Letters of Administration

Before an application for a Grant of Letters of Administration is made, one must prepare and obtain: - 

• The Death Certificate of the Deceased;
• A list of Assets and Liabilities of the Deceased; and
• A list of Beneficiary in accordance with the Distribution Act.

Upon obtaining the abovementioned documents, an Originating Summons together with an Affidavit in Support (alongside with the abovementioned documents) is to be filed into the Court as required under Order 71 Rule 5 of the Rules of Court 2012. 

If there exist more than one beneficiary to the deceased’s estate, the beneficiaries that does not intend to apply for the Grant of Letters of Administration would be required to renounce their right to apply for the Grant of Letters of Administration in accordance with Form 160 of the Rules of Court 2012².

Upon the filing of the Originating Summons, the High Court will set a date for the hearing of the Originating Summons and the Senior Assistant Registrar will make inquiries to the Administrator on the estate of the deceased. Once the Senior Assistant Registrar is satisfied, a Grant of Letters of Administration will be issued.

But before the Administrator can extract the Letters of Administration, he would need to furnish an Administration Bond in Form 162 of the Rules of Court 2012 if the total value of the deceased’s estate exceeds RM50,000.00 unless the Court dispenses with the bond. Under Section 35(1) of the Probate and Administration Act, this Administration Bond requires 2 sureties who has assets equivalent to the deceased’s estate.

If the deceased is a Muslim, a Sijil Faraid must also be obtained from the Syariah Courts before extraction of the Letters of Administration can occur. 

The Deceased’s previous debts and Distribution by way of the Distribution Act

If the deceased has any outstanding debts prior to death, the Administrator has a duty to pay off the outstanding debts with the deceased’s assets. The remaining assets would then finally be distributed based on the table below:

P- Parent | C-Child | S-Spouse

Composition	Total Entitlement to the Deceased’s Estate
S+P	50%+50%
S+C	33%+66%
P+C	33%+66%
S+P+C	25%+25%+50%

DISCLAIMER

This article does not constitute as professional legal advice and therefore no reliance should be given to it. It is recommended that you seek actual profession legal advice in relation to your matter, as specific facts and circumstances may change the applicability of this articles.

Article by Chua Jeungru (Pupil-in-Chambers)
Edited by XXX (Partner)
04 April 2023

 

¹ How Yew Hock (Executor of The Estate of Yee Sow Thoo, Deceased) V Lembaga Kumpulan Wang Simpanan Pekerja [1996] 2 MLJ 474

² Order 71 Rule 5(2) of the Rules of Court 2012