In Malaysia, real estate is often the most valuable asset in a person’s estate. When the property owner passes away, their home, land, or other immovable property cannot be sold, transferred, or registered under a new name immediately. Instead, the law requires that formal authority be obtained before any dealings with the property can take place.
This authority comes in the form of a Grant of Probate, issued by the High Court when the deceased has left a valid will and appointed an executor. The Grant of Probate confirms the executor’s legal right to manage and transfer the property, ensuring that the process is carried out lawfully, with recognition from the Land Office, and in full protection of the beneficiaries’ rights. Without probate, property transactions cannot be completed, leaving the estate frozen and heirs unable to claim what is rightfully theirs.
What Is a Grant of Probate and Why Is It Required for Property Transfers?
A Grant of Probate is a court order issued under the Probate and Administration Act 1959, confirming the legal authority of the executor named in a valid will to administer the estate. This authority extends not only to bank accounts, investments, and personal assets, but also to real estate, which often represents the most significant part of the estate.
When it comes to property transfers, the Grant of Probate is essential because it provides the executor with the legal recognition required by the Land Office to change the ownership of the title. Without probate, the Land Office will not process or approve any transfer of property, even if the beneficiaries are clearly named in the will.
By obtaining a Grant of Probate, executors can ensure that property transfers are conducted lawfully, smoothly, and in line with the deceased’s wishes, while also protecting beneficiaries from disputes or unauthorised claims.
The Role of Probate in Transferring Property Titles
Probate plays a central role in enabling the lawful transfer of property titles after a person’s death. Once the High Court issues the Grant of Probate, the executor gains the official authority to initiate the transfer of ownership from the deceased to the rightful beneficiaries.
For properties registered under the National Land Code 1965, the Land Office requires sight of the Grant of Probate before approving any title change. This ensures that only the legally recognised executor can act on the estate’s behalf, preventing unauthorised individuals from attempting to deal with the property.
By relying on probate, the Land Registry guarantees that all transfers are legal, valid, and enforceable, giving both executors and beneficiaries the assurance that the property is transferred in accordance with Malaysian law and the terms of the will.
Step-by-Step Process of Real Estate Transfer Through Probate
The transfer of property after death involves a structured process to ensure compliance with Malaysian law. When a valid will exists, the following steps are typically required:
- Filing for Probate in the High Court
The executor files an application supported by the will, death certificate, and other relevant documents.
- Verification of the Will and Executor
The High Court examines the will to confirm its validity and verifies that the named executor is entitled to act. Once satisfied, the court issues the Grant of Probate.
- Submission of Probate Order to the Land Office
The executor presents the Grant of Probate, together with property details, to the relevant Land Office as proof of authority to manage the deceased’s real estate.
- Transfer of Title or Sale of Property
The Land Office processes the transfer of ownership into the beneficiaries’ names, or approves a sale if distribution requires conversion of property into cash.
This step-by-step procedure ensures that real estate transfers are carried out legally, transparently, and in full compliance with the National Land Code 1965.
Challenges in Real Estate Transfers Without Probate
When probate is not obtained, real estate in the deceased’s estate becomes legally frozen. The property cannot be sold, transferred, or registered in the names of beneficiaries, regardless of the family’s agreement.
Banks and potential buyers also refuse to proceed with financing or transactions without a Grant of Probate, as there is no recognised proof of the executor’s authority to act on behalf of the estate. This can delay property dealings indefinitely and create financial strain for heirs waiting for their rightful inheritance.
In addition, bypassing probate opens the door to disputes among heirs, as there is no legal confirmation of who has authority to handle the estate. Such disputes can escalate into costly litigation, further delaying the distribution process.
By securing probate before attempting any real estate transfer, executors and beneficiaries ensure the process is carried out lawfully, efficiently, and without unnecessary conflict.
Conclusion
A Grant of Probate is not just a legal formality—it is the key requirement that unlocks the transfer of real estate in Malaysia after the death of a property owner. By confirming the executor’s authority, probate ensures that property dealings are recognised by the High Court and Land Office, carried out in compliance with the Probate and Administration Act 1959 and the National Land Code 1965, and most importantly, that beneficiaries’ rights are fully protected.
Without probate, real estate remains frozen, transactions stall, and disputes among heirs may arise. With it, executors can proceed confidently, knowing the transfer is valid, lawful, and binding. For families, this provides peace of mind and a smoother path to securing their rightful inheritance.
Need guidance on transferring property after a loved one’s passing? At Sim & Rahman, we provide expert assistance in probate and real estate matters.
