A Small Guide to How to Claim What’s Rightfully Yours!
It’s common for parents to pass away and not leave behind a will. Doing that can cause a lot of problems for their kids and next-of-kin. We don’t want that to happen for obvious reasons.
What if, let’s say, you are one of those kids whose parents passed away without leaving a will behind? Sounds rough, isn’t it? Or maybe you don’t care because it seems like it’s something that won’t affect you. Well, don’t get too comfortable yet.
How Wills Work
A quick rundown on how wills work…
If your parents have a will when they pass away, things will be a lot easier. Whatever assets and monies listed in there will go to you and your siblings – assuming you are all named beneficiaries of the will.
This process will be very fast. If your parents have 0 debt and have every asset named in the will, everything will be smooth sailing for you.
If there are outstanding debts and unlisted assets, then things will take a lot longer. Not forgetting to mention, your parents may have named other people who are not related to you as their beneficiaries. If you choose to contest this, it can also take longer for the will to be executed.
But What If My Parents Have No Will?
Parents not leaving behind wills is a common thing. Here’s what would happen if they didn’t leave behind one.
Generally, the Malaysian government will hold on to whatever assets and monies are under the deceased’s name – in this case, your parents. The assets will just sit there until someone comes forward and lays claim to it.
So let’s say you or your siblings decide to come forward to lay claim to your deceased parents’ assets. You will first need to file a petition with the probate court and Supreme Court. A letter of Administration (LOA) will be issued for you, which is a document that provides the court’s formal approval for someone to administer the deceased’s estate.
Only the person with the greatest entitlement to the estate can get the administration from the Court. This usually is the spouse or the biological kids.
Since there is no trustee appointed, then an executor and an administrator will be appointed in place. They are responsible for confirming family members and relatives that are entitled to a share of the deceased’s estate.
What Comes After That?
As soon as an administrator and executor are appointed, the executor will try to locate as many assets and monies left behind by your deceased parents. They will write a new will just for your case. In this new will, all the assets and monies the executor can find will be listed there.
After that, the standard operating procedure applies. Basically, if there are any outstanding debts and unpaid taxes, the assets and monies will be used to pay those off. As soon as those are paid off, the remaining assets will be calculated and be distributed to you and your family members.
How are the assets distributed, you may wonder? Well, in Malaysia we follow the Distribution Act of 1958. Note that there will be some slight differences in the distribution of the assets between Peninsula Malaysia and East Malaysia. The distribution will also be different for Muslims and non-Muslims.
Conventionally (for non-Muslims), the assets will first be distributed between the immediate families first. If there is a living spouse, then the spouse will get a portion first. Then the kids will be given the next portion in equal parts. The relatives will get nothing from the deceased.
Image via Loanstreet
In this table, we can see that if there is no surviving spouse and have a surviving kid, then the kid will get 100% of the assets. This is after all debts have been paid off. However, if you have siblings, then you and your siblings will get the assets in equal parts.
For example, if you have 4 siblings, then the final assets will be divided among the 5 of you. Each of you will get 20% of the assets.
This whole process can take anywhere from at least 2 years to 5 years. In some cases, it can take more than 5 years to settle.
If Nobody Comes Forward to Claim the Assets, What’s Going to Happen?
This scenario can happen and is possible. Back in February 2016, an article by The Star reported that unclaimed estates of deceased are worth over RM60bil in total. That figure may have risen in 2021. This is in cases where the deceased has absolutely no family at all. As long as no one came forward and after careful and proper tracing for any immediate family members, only then can the Malaysian government claim that it is unclaimed.
They didn’t leave behind a will at all thinking there is no need for it. However, they forgot they can name societies and religious bodies as their beneficiaries but that is at their own discretion.
If the deceased left behind so many assets and no one claims it, then the Malaysian government will have the liberty and power to legally take it.
The bottom line is that if your parents did not leave behind any wills, there is still a fighting chance for you to claim it. As long as you follow the proper procedures, things shouldn’t be so hard and so long-drawn-out for you.