Grant of Probate vs Letter of Administration In Malaysia: What Are The Differences?

When someone passes on, Grant of Probate (GP) and Letters of Administration (LA) are important legal instruments which trigger the procedure of administration of estate and enable settling a Will. Despite that, they are so different to one another!

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Before we discuss what are the differences between them, it is important to understand:

What Is Estate Administration?

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In reality, estate administration is a process which consists three steps as follows:


1. to establish and manage the deceased’s assets;


2. identify and pay off the deceased’s debts and liabilities (if any); and


3. to distribute the estate between beneficiaries in accordance to the deceased’s Will or trust deed or with the Probate and Administration Act 1959.


A proper and well-planned estate administration is important to ensure that the lawful and rightful beneficiaries inherit the deceased’s assets. Otherwise, the distribution of the deceased’s estate could be a tedious and complicated matter for the beneficiaries to resolve which causes unnecessary stress and anxiety.


Administration of estate can take up to at least 3 months to several years depending on the nature of the assets and whether any dispute arises. Therefore, it is crucial to select the right Administrator to carry out the duty of administering the deceased’s estate.

What Is Grant Of Probate (GP)?

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Grant Of Probate (GP)  is a grant under the seal issued by the High Court to the named Executor(s) in a Will. 

Once the GP is granted, the Executor(s) named in the will is authorised to administer the deceased’s estate.

What Is Letter Of Administration (LA)

letter of administration malaysia

Letter Of Administration (LA) is the form of Order or Declaration issued when a person passes on without a Will.

 There are only three institutions that have the power to grant LA, particularly the High Court, the Amanah Raya and the Small Estate Distribution Unit. 

So, What Is The Difference Between a Grant Of Probate (GP) & Letter Of Administration (LA)?

The main difference between a Grant of Probate (GP) and Letters of Administration (LA) is whether there is a presence of a will

If the deceased has made a will to declare to whom and how his or her assets are distributed, GP is the document you will need. On the other hand, if there’s no will or the will is invalid, then Letters of Administration (LA) will be required.  

Generally, most people presume that their assets will automatically be distributed to the beneficiaries upon their death. Unfortunately, this is wrong as there is a legal process to be followed. 

 

If There Is A Valid Will (Testate)

will writing malaysia

Where there is a valid Will and a proving Executor, the deceased’s estate will be disposed of according to the Will. 

A proving Executor means that the Executor named in the Will is willing and capable to perform estate administration. 

Firstly, the family members will try to locate and identify the deceased’s estate and the Executor named in the Will by the Testator would engage a lawyer to apply for the Grant of Probate (GP) from the High Court. ‘Testator’ means the person who wrote a will.

Before applying for a GP, the Executor will locate the Will, bring it together with the death certificate and the deceased’s list of assets and liabilities to start administering the deceased’s estate. See below for the documents required to be filed for the application of a GP.

After the extraction of the GP, the Executor has a duty to assemble and collect the deceased’s estate, pay off the debts and liabilities, particularly the estate administration fees, income taxes and funeral expenses, and dispense the remainder of the estate according to the will made by the Testator.

Alternatively, the Executor may refuse to take on the responsibility of the Executor and apply for summary declaration. The application for such declaration can be made via Amanah Raya Berhad given that the deceased’s estate contains only movable properties amounting lesser than RM600,000 only.

 

If There Is No Will Or The Will Is invalid (Intestate)

invalid will

It is more complicated when a person passes on without a Will

This is because there are different ways to deal with the deceased’s estate depending on the nature of the assets whether movable or immovable and the gross value of the estate in the case of intestate. ‘Intestate’ means a person passes on without writing a Will.

In cases where someone passes on without leaving a Will, his or her estate will be distributed according to the Distribution Act 1958. 

The lawful beneficiaries under the Distribution Act 1958 will have to appoint an Administrator among all persons interested in the estate of the deceased person to administer the deceased’s estate. 

An Administrator is a person who has been granted a letter of administration authorizing him or her to administer the deceased’s estate. All lawful beneficiaries pick one or two administrator(s) by way of renouncement of their rights to be the Administrator. 

It should be noted that the appointment of Administrator lies within the power of the Court.

 
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The Administrator who is appointed will then apply for Letters of Administration (LA) from the High Court, or the person(s) who benefits from the will (beneficiaries) would apply for a Distribution Order from the land office which will be issued by the District Land Administrator. 

Upon the extraction of LA, the duties of the Administrator are similar as the duties of the Executor.

As an alternate, the interested person may apply for summary administration through Amanah Raya Berhad provided that the deceased’s estate consists only of movable properties amounting to not more than RM600,000 only. And if this is preferred, no person will be entitled to petition for grant of LA thereafter. 

Conversely, if the movable properties are more than RM600,000, there is no summary administration via Amanah Raya Berhad and it is for the High Court to grant LA.

 

Total value of estate exceeds RM2 million

Where a person dies of intestacy (without a valid will) and the gross value of his estate is more than RM2,000,000 (2 million), the High Court has the authority to grant LA to the Administrator.

Total value of estate lesser than RM2 million

If a person passes on and the gross value of his or her estate (wholly or partly immovable) does not exceed RM2 million, it is specifically governed by the District Land Administrator under the Small Estate (Distribution) Act 1955.


In the eye of law, small estate means that the deceased’s estate consisting:


(a) wholly or partly of immovable property; and


(b) not exceeding RM2 million in total value at the time of application for summary administration.


Furthermore, in determining the value of the small estate, the Court will not deduct the debts or liabilities of the deceased and include property which is to be held by the deceased as a trustee. 

Following this principle, the value of the estate must include the deceased insurance pay out and his or her EPF money if there is no nomination done by the deceased.

What Are The differences between applying for a grant of probate & letter of administration?

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Other than the obvious difference between GP and LA which GP can only be applied when there is a Will (Testate) and LC will only be needed when there is no valid Will (Intestate), the following are further differences of GP and LA:

Time

The entire process of applying for a Grant of Probate will normally take about 3 to 6 months depending on the size of the estate. This is of a shorter period in comparison to the application for LA. 

The whole process for the LA to be granted will generally take about 6 months to 2 years or longer depending on the nature and complexity of the case.

Who can make the application?

GP can only be applied by the Executor named in the Will whereas LA may be applied by those who are interested in the deceased property and an Administrator will be appointed by the Court to administer the deceased’s estate.

Distribution

In relation to GP, the Testator (person who made the Will) can choose the beneficiaries and their shares. On the other hand, for LA, the rights of the beneficiaries are not determined and the distribution of assets is governed under the Distribution Act 1958.

Administrative bond

No administration bond is required for GP but it is necessary to note that the administration bond is required for the issuance of LA.

It means that there must be two sureties who have sufficient assets within the jurisdiction comparable to the amount of the deceased’s estate as security for the estate administration.

However, the Administrator is allowed to make an application to the court and the court may, for any satisfactory reason, increase, decrease or give up the administration bond requirement.

Who Has the Right over The Deceased's Estate?

For GP, property vests in the Executor who has a right to administer the Testator’s estate whereas for LA, the property vests in the Administrator when he is appointed by the Court. In addition, an Administrator can only be sued when the LA is extracted.

Chain of Executorship

The chain of Executorship is relevant when an Executor dies before completing his or her duties in relation to estate administration, the right of such Executor to a GP does not cease and the appointment of new Executor(s) is automatic; no further formalities are required.

However, for LA, there is no chain of Executorship.

What Are The Documents needed when making the application?

documents needed to apply grant of probate & letter of administration

Documents Needed to apply For grant Of Probate

The application for Grant of Probate will be made to the High Court by the Executor and the whole process will normally take around 3 to 6 months depending on the size of the estate. 

Upon the extraction of the GP, the Executor can gather all the deceased’s assets into his possession to first settle all the deceased’s debts and liabilities. 

When making an application for a GP to the High Court, the following documents are required:

a. death certificate;
b. the original Will;
c. identity card (IC) of the Executor;
d. list and identity cards (IC) of the Beneficiaries;
e. list of assets of the deceased;
f. list of liabilities of the deceased; and
g. any other documents that the lawyer required from time to time.

Documents Needed to apply For Letter Of Administration

When there is no valid Will, the court will appoint an administrator when granting the LA to manage and administer the deceased’s estate. The most suitable person to be the administrator generally would be the beneficiary of the deceased’s estate. Application for LA must be supported by the following documents:

a. death certificate;

b. identity card (IC) of the Administrator;

c. list and identity cards (IC) of the Beneficiaries;

d. list of assets of the deceased;

e. list of liabilities of the deceased; and

f. administration oath if there is any minor interest,

g. renunciation by other beneficiaries who are entitled to the grant but did not apply; and

h. any other documents that the lawyer required from time to time.

 

To conclude, having proper estate planning or having your Will made is encouraged for its obvious advantages. 

It is important to know that not having a Will may lead to practical issues when distributing the assets such as family FEUD and disagreement after once passes away, especially a LA can only be obtained with all interested family members’ consent instead of a GP and the deceased’s estate will be split according to the law and not to the Testator’s wishes.

If you need any legal advice on any of the above mentioned, please do not hesitate to contact Sim & Rahman by clicking the button below.

need legal advice in malaysia?

Sim & Rahman is a lawyer firm based in Selangor, Malaysia specializing in resolving commercial/corporate disputes, will writing & probate, letter of administration and property transaction. Contact us today to get legal advice from us. 

need legal advice in malaysia?

Sim & Rahman is a lawyer firm based in Selangor, Malaysia specializing in resolving commercial/corporate disputes, will writing & probate, letter of administration and property transaction. Contact us today to get legal advice from us. 

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