To Will or Not To Will

The recent pandemic of Covid-19 saw many lives being taken away – with no chance of being prepared. The effect and seriousness of this virus is unquestionable. It brings us to ponder some questions, that is:


“What happens to my assets after I die?” or “Will my family be taken care of, after my death?”

At the time of one’s death, we may be left wondering if your loved ones left any arrangement on their properties. Surely, this should be last on every loving family’s mind – so it is important that you, whilst you are still alive, take the steps to ensure that they are taken care of.


“How do I ensure this?” – One may ask.


This arrangement is documented in a form of a document known as “Will”. The Will sets out your wishes as to how you want to deal with the assets after you die. In other words, you are still the “instructor” of the driving vehicle. Legally, you are known as the “Testator”.


Now that you are gone, who is dealing with the arrangement or distribution of the assets? Under a Will, you will appoint a person (or two) as the Executor (Executrix for female). This Executor will be responsible to uphold your wishes. In your Will, you will give yourself this opportunity to set out the movable properties or immovable properties that you have – be it in joint names with your wife, or joint names with your Children such as houses or bank accounts. You may also want to expressly name who should be getting your car or your shares.


Fun Fact:

Your Will does not take effect from the time the Will is drawn up. It is only effective after you die.


In some cases, some people may want to ensure that their other half is thoroughly protected. In this instance, you may direct or instruct the Executor by way of an express provision that sale of the house is strictly prohibited – with conditions attached to it. With this brief idea in mind, you may wonder what’s the difference between having a Will and not having a Will?


When you die without a Will, you will die intestate. Following this, the law of intestacy will apply. In Malaysia, the Distribution Act, 1958 and the Small Estate Distribution Act 1955 will apply.


In case you are thinking that “Great, the law got me covered!” – you are not quite right there.


Firstly, you lose the right to “instruct” how you want your assets to be distributed. The law provides for it and it entirely depends who did you leave behind, i.e. whether your wife, your Children and how many of them, or your parents.


Another point to ponder is the exercise to find out your assets after your death. Having a Will, you would have, set out most of your assets in the four corners of your Will. But if you do not have a Will to begin with, and with this being the last in their mind at the time of grieving, this exercise will surely be more difficult than anticipated.


If your combined assets are less than RM2million, then you will have another hurdle where you have to apply under the Small Estate Distribution Act 1955. This means that you are not going to the Courts – but to the Land Office instead. Obviously, it is not as expedient as going to Courts to apply for a Grant of Probate since your Executor has your Will ready.


What could possibly change during the passage of time is only the amount in the bank account, or the increase of properties. If you come to this stage, there is nothing stopping you from improving your Will to include your new assets.


So, really, you will be doing your family and loved ones a huge favour if you have a Will. Consider that, and you can also “rest in peace”.


 

This article is not intended as nor does it substitute for legal advice. If you have any queries or require legal advice, please contact Chris Tan at chrisyhtan@jmcvc.com or through any of our general lines.