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Letters of Administration
In the case of a person who dies intestate, a petitioner called the Administrator can apply to the High Court to administer the intestate estate.
For a non-Muslim who dies intestate, his or her estate shall be distributed according to the provisions of the Distribution Act 1958 in the following manner:
- If an intestate dies leaving a spouse and no issue and no parent(s), then the surviving spouse shall be entitled to the whole of the estate
- If an intestate dies leaving no issue but a spouse and a parent or parents, then the surviving spouse shall be entitled to one-half of the estate and the parent(s) shall be entitled to the remaining one-half (in equal shares)
- If an intestate dies leaving only issue but no spouse and parent(s), then the surviving issue shall be entitled to the whole of the estate. If there is more than one issue, then they shall share equally
- If an intestate dies leaving only the parent(s) but no spouse and issue, then the surviving parent(s) shall be entitled to the whole of the estate
- If an intestate dies leaving a spouse and issue but no parent(s), then the surviving spouse and issue shall be entitled to one-third and two-thirds of the estate respectively
- Similarly if an intestate dies leaving parent(s) and issue but not a spouse, then the surviving parent(s) and issue shall be entitled to one-third and two-thirds of the estate respectively
- If an intestate dies leaving a spouse, issue and parent(s), then the surviving spouse and parent(s) shall be entitled to one-quarter of the estate each and the remaining one-half of the estate shall go to the issue
- If an intestate dies leaving no spouse, issue or parent(s), then the estate shall be distributed according to the hierarchy stated in s 6(1)(i) until (j)
If a Muslim dies intestate, the distribution to the legal heirs shall be according to the Faraid principles after the legacies and debts (including funeral expenses) have first been paid. These Faraid principles shall be in accordance with the Holy al-Quran. However, the distribution varies according to the nature and the number of competing heirs.
A Grant of Letters of Administration is a document issued by the High Court of Malaya allowing the person named therein to administer the estate of a deceased who has died without leaving a valid will.
The application for a Grant of Letters of Administration will have to be made to the High Court.
Set out below are the preliminary inquiries:
- Obtain the original death certificate
- List out the assets and liabilities of the estate
- Get a certificate of valuation of assets
- Get the title documents of immovable property
- Get the title documents of vehicles
- Get letters from banks or financial institutions stating the balances in bank accounts or shares at the date of death
- Get a list of beneficiaries
- Get a list of persons in terms of priority
Generally, preliminary inquiries with regard to an application for a Grant of Letters of Administration should reveal:
- The person or persons fit to apply for the Grant of Letters of Administration
- The persons or persons entitled to the distribution of the estate
- Whether the deceased has left a valid and enforceable will or other testamentary documents. In this instance, the administration of the estate is by way of a grant of probate
- Whether there is a valid and enforceable will but the executor has died before proving the will. In this instance, the administration of the estate is by way of a Grant of Letters of Administration with Will Annexed
Distribution of the estate will be carried out after dealing with matters such as funeral expenses, liabilities, properties held in trust, matrimonial properties and the deceased’s will. Once the properties for distribution have been identified, the empowered administrator will proceed with the actual distribution of the estate to the respective beneficiaries.
The main impediments to inheritance under Islamic Law are al-qatl (homicide), slavery and difference or change of religion. The Shafie view is that a killer does not inherit from his victim, whether the homicide is lawful, justifiable, intentional, unintentional, direct or indirect and this is of absolute application, covering cases from wilful murder to lawful execution.
Where the deceased is a Muslim, it is necessary to apply to the Syariah Court for a sijil Faraid (inheritance certificate) to determine the portion of the estate that each heir is entitled to.
Under Islamic Law, the distribution of the estate of a deceased person, who the beneficiaries are and the entitlement of each beneficiary of the estate has to strictly adhere to the Holy al-Quran and hadith. Thus, the Distribution Act 1958 is not applicable to Muslims.