The most common way to ensure the future well being of your family is by estate planning which involves drawing up a Will. A Will enables a person to direct how his or her property be dealt with and whom it will go to when he or she is no longer alive. Under the law, when a person passes away, all his or her assets will be frozen until a Probate (where a valid Will exist) or the Letter of Administration (where there is no Will) have been granted by the High Court.
A Will is a legal document, drafted and executed in accordance with the State law, which becomes irrevocable at your death. It sets out how you wish to distribute your assets upon demise. This legal document takes effect only after your death, wherein you will also be known as the testator. You are allowed to alter, change or renew your Will as many times as you like during your lifetime. Do not forget that marriage automatically revokes a Will.
Among the advantages of having a Will compared to not having one, are as follows:-
- It is likely that the distribution of the assets from the deceased’s estate would be faster, more efficient and less costly;
- No administration bond is required in an application for Probate, unlike Letters of Administration when the deceased leaves no will;
- The testator can choose his or her beneficiaries and determine their entitlement;
- The testator can choose the executor(s) who will carry out the instructions set out in the will; and
- If the testator has children who are under the age of 18, he or she can appoint a testamentary guardian who will look after their interests and welfare.
Malaysians are still ignorant of the importance of having wills as they are considered a taboo (or pantang) subject. This is more evident in the Muslim community, which believes that it is not necessary to draw up a will as the religion has already provided the necessary provisions under Islamic inheritance law or Faraid upon their demise. About 95 per cent of Malaysians procrastinate in writing their wills as they think that they will not die so soon.
Can I write my own Will?
Anybody can write a will as long as it is in accordance with the Wills Act 1959. However, for Muslims, the Syariah principles apply. It is important that the person who prepares the will has the expertise to prepare the document.
Preparing a meaningful Will is not a matter of looking at a few examples and then choosing one. In many cases it requires the testator, also called the donor; who is giving away his property through a Will to be clear as to what he has in mind. The person who prepares the Will must clearly put in writing the wishes of the donor.
In the case of non-Muslims, the Distribution Act 1950 provides for how the property is to be distributed in case there is no will. However, for there is no will. However, for Muslims only one-third of the estate at most can be willed away. The remaining two-thirds must be distributed according to Syariah law. A will therefore allows the donor to have his wishes carried out to the extent that the law permits.
A Will is valid if it is drawn up and witnessed by two people. Although it may be cheaper to draw up a will on your own, the drawback is that the testator may not be well-versed in the intricacies of Malaysian succession or inheritance laws to structure a will in the best possible manner.
Therefore, writing a Will is definitely a wise thing to do to ensure that your wishes are carried out as instructed. You can name your beneficiaries, guardian for your minor children (if any) and also an executor whom you trust to collect and manage your assets in accordance with the provisions of your Will. You should also provide for the distribution of the residue of your estate; that is your remaining assets (they do not need to be specified) which are not specifically given to individuals or organisations in your Will.