ADMINISTRATION OF ESTATES IN SARAWAK: LETTERS OF ADMINISTRATION AND PROBATE

Memento mori, the term which translates from Latin as “remember you must die” is a reminder of the inevitability of death, as that it is “the price that all men pay”[1]. Before death, an individual can ensure the administration of their estate in accordance to their wishes by preparing a valid Will stating how the estate is to be distributed after they have passed. In Sarawak, the executor/executrix of a Will is required to apply for a grant of probate at Amanah Raya Berhad or the District Office concerned in order to administer the estate of the deceased in accordance to the Will of the deceased. But what happens to the estate of an individual if he/she passes away without leaving a valid Will?

In Sarawak, a person who passes away without a Will is regarded as intestate and will have their assets distributed in accordance to the Distribution Act 1958 (hereinafter referred to as “the DA 1958”) by the grant of Letters of Administration (hereinafter referred to as “LA”) applied for by the deceased’s immediate family members with a Probate Officer and/or the District Officer to become an administrator.

The laws governing the administration of estates in Sarawak via a grant of probate (for a testate estate where the deceased has left a valid will) and LA (for an intestate estate) are as follows:

Testate Estate	Intestate Estate
Administration of Estates Ordinance 1933 (Cap.80) (“AEO 1933”)	DA 1958 AEO 1933 Public Trust Corporation Act 1995

[1] Page IX, Wills, Probate and Administration of Estates in East Malaysia by Clarice Chan

[2] Section 9 of the Wills Act 1837 (UK)

VALID WILL

The following requirements must be satisfied in order to create a valid and enforceable Will[2] :-

• (a) The will must be in writing;

• (b) The testator must be at least eighteen (18) years old;

• (c) The testator must be of sound mind and acting at their own free will and not under any influence, coercion or duress during the will’s execution;

• (d) The testator must have signed the will in the presence of two (2) or more witnesses;

• (e) The witness of the signing and/or attestation of the will by the testator must not be a beneficiary of the will;

• (f) The testator must not be prohibited to administer his/her assets by the reason and/or operation of any applicable laws.

  
  

It is worth to note that upon marriage, the will of the testator is automatically revoked unless the will contains a clause expressly providing for the contemplation of marriage. A will would also be revoked if a non-Muslim testator converts to a Muslim.

CONTEMPLATION OF THE TESTATOR DURING WILL MAKING

Before will making, the testator should contemplate various factors as follows: -

(a) The beneficiaries of their estate;

(b) The allocation of certain assets to certain beneficiaries of their estate;

(c) All the assets of the testator (whether movable and/or immovable) and related documentation (i.e. land titles, vehicle registration certificates, insurance policies, certificate of unit trusts, shares, fixed deposits, bank accounts etc);

(d) Desired executor(s)/executrix(es) that are able to execute the will;

(e) Trustees to hold assets on trust on behalf of minor beneficiaries.

It is worth to note, that making a will is highly desired as it can ensure that the assets of the testator would be administered according to their wishes and can avoid any disputes between family members over assets upon the death of the testator. The process to apply for a grant of probate is also generally faster than that of an application for a grant of LA.

LETTERS OF ADMINISTRATION AND PROBATE: DOCUMENTS REQUIRED

In Sarawak, the administrator(s) and/or executor(s)/executrix(es) for the estate of non-Muslims must apply for a grant of LA and probate from a Probate Officer. In Kuching, an application for a grant of LA for non-Muslim and non-Native estates can be done with a Probate Officer at Amanah Raya Berhad Kuching, whereas in other districts and Muslim and Native estates this can be done with a Probate Officer at the relevant District Office. For ease of reference: -

Relevant authority	Type of estates
Amanah Raya Berhad	In respect of all other estates (except Muslim and Native estates) with immovable assets located in Kuching.
District Office throughout Sarawak	In respect of Muslim and Native states or With immovable assets located out of Kuching.

The application for LA and/or probate must be made in person to the Probate Officer. Generally, the applicant must swear an affidavit and inventory of all the assets, properties and liabilities of the deceased in the state including debts (if any)[3]. The following documents (where applicable) ought to be annexed[4]: -

(a) the death certificate;

(b) a letter of consent by all the heirs, to appoint an administrator (if applying for LA);

(c) the will together with statutory declarations from the witnesses of the will (if applying for probate);

[3] Section 5 of the AEO 1933

[4] Section 13 of the AEO 1933

[5] Section 8 of the AEO 1933

(d) identity cards and birth certificates of all the closest heirs;

(e) marriage and /or divorce certificates;

(f) proof of ownership of any properties;

(g) share certificates if any;

(h) bank account books;

(i) ownership of businesses;

(j) any other documents that may be requested by the Probate Officer of the relevant authorities.

ADMINISTRATOR(S) OF LA AND/OR EXECUTOR(S)/EXECUTRIX(ES) OF A WILL

Administrator(s) of the estate of an intestate have to be appointed by and/or obtain consent from all the legal beneficiaries to the estate of a deceased through a grant of LA. The following individuals are qualified to apply with a Probate Officer (in the following order) for the grant of LA of the estate of the deceased[5]:-

(a) the deceased’s widower;

(b) the male heirs of the deceased;

(c) the deceased’s father;

(d) the brother or brothers of the whole blood of the deceased;

(e) the deceased’s widow (or primary widow if more than one);

(f) the deceased’s nearest male relative;

(g) The deceased’s nearest female relative; and

(h) any creditor of the deceased, who shall enter into a bond for such amount and with such sureties, or has furnished such security, as the Probate Officer shall require.

Any residuary legatee may also apply where necessary.

As for testators, the executor(s)/executrix(es) appointed in the will of the deceased testator shall be qualified to administer the estate of the deceased after applying for a grant of probate.

ADMINISTRATION OF ASSETS

Where a grant of probate has been obtained, the appointed executor(s)/executrix(es) must administer the estate of the intestate in accordance with the will. Assets not addressed in the will fall into the residuary estate, which should be administered in accordance with a residuary clause. In absence of the residuary clause, the residuary estate may be subject to the DA 1958 governing intestate laws. However, beneficiaries that are expressly excluded from a will are not entitled to the distribution of the residuary estate, even in the absence of a residuary clause.

In the case of LA, once the expenses of due administration are paid off, the residuary estate is to be distributed to the surviving beneficiaries or held on trusts by the administrator who has obtained a grant of LA as follows[6]:

Surviving members	Share
Spouse only (no issue[7] or parent)	Whole estate to the spouse
Spouse and parent(s)	1/2 – spouse 1/2 – parent(s)
Issue only (no spouse or parents)	Whole estate to the issue
Parent(s) only (no spouse or issue)	Whole estate to the parent(s)
Spouse and Issue	1/3 - spouse 2/3 – issue
Issue and parent(s)	2/3 – issue 1/3 – parent(s)
Spouse, issue and parent(s)	1/4 – spouse 1/2 – issue 1/4 – parent(s)

If the intestate was permitted a plurality of wives under his personal law and more than one wife survived the intestate, such wives are to share among them equally, the share of which the wife would have been entitled to had the intestate left only one wife surviving him[8].

If an intestate dies leaving no spouse, issue or parent(s), the estate is then held on trusts for the following persons who are living at the time of death of the intestate, and in the following order of survival[9]:

Family members	Share
Brothers and sisters of the intestate	In equal shares
Grandparents
Uncles and aunts
Great grandparents
Great grand uncles and great grand aunts

[6] Section 6 of the DA 1958

[7] As defined in s.3 of the DA 1958, “issue” includes children and the descendants of deceased children.

[8] Section 6(2) of the DA 1958.

[9] Section 6(1) of the DA 1958.

[10] Section 6(1)(j) of the DA 1958.

[11] Section 17 of the AEO 1933

[12] Section 26 of the AEO 1933

[13] Lim Sok Wah v Lim Boon Cheow & Anor and Another Appeal [2021] 6 MLJ 234

GENERAL DUTIES OF EXECUTOR(S)/ EXECUTRIX(ES) AND ADMINISTRATOR(S)

Both executors/executrixes and administrators are regarded as the personal representatives of the deceased. They owe a fiduciary duty to the beneficiaries of the estate and hold the estate on trust for the beneficiaries. As such they are obligated to carry out their powers in the best interest of the beneficiaries and owe the following general duties[11]:

(1)The duty to gather, collect and ascertain all the assets and liabilities of the estate and to ensure that all the debts of the deceased are paid out of the assets of the estate (for executors/executrixes, their duties are subject to the intentions of the deceased as set out in the will).

(2)Both executor/executrix and administrator have the duty to keep true and complete accounts of their administration and would need to produce such records to the beneficiaries and/or the Probate Officer when called upon to do so[12].

(3)The executor(s)/executrix(es) have the duty to administer the estate of the deceased in accordance to the instruction of the deceased testator in the Will, while the duty of the administrator is to administer the estate in accordance to the DA 1958.

EXTENT OF POWERS OF EXECUTOR(S)/ EXECUTRIX(ES)/ADMINISTRATOR(S)

Administrators and/or executors/executrixes owe fiduciary duties to the beneficiaries of the estate, but they also enjoy fiduciary powers. Such powers include the powers to sue in respect of all cause of actions that survive the deceased. However, their main powers are to administer the estate in accordance to the Will of the deceased (for executors/executrixes) or the laws for intestacy under the DA 1958 (for administrators).

At all material times, the powers of administrator(s) are confined to the DA 1958 as they are in no position to decide which family member(s) should be entitled to a share of the assets of the deceased estate as all assets shall be distributed in accordance to the proportions set out under the Distribution Act 1958[13].

In summary, administrators and or executors/executrixes must take care as to not misuse their powers and breach their fiduciary duties at any point of time during the administration of the estates.

Any administrator and/or executor/executrix who has intermeddled with or has knowledge of any intermeddling with the estate or any assets thereof may be summoned by the Probate Officer to answer. Under Section 31 AEO 1933, failure to appear before the Probate Officer may result in fine or a term of imprisonment.

ASSETS THAT DO NOT FORM PART OF THE ESTATE (EPF AND INSURANCE)

Generally, all the assets of the deceased would form part of the estate of the deceased and be distributed in accordance with their will and/or the DA 1958 (if no valid will is left). However, there are exceptions to this i.e., Employment Provident Fund (hereinafter referred to as “EPF”) monies and Insurance monies.

In the case where there is a nomination made with EPF, any such nominations shall not be revoked by any will made by the deceased. As such, the nominated person(s) shall take the benefit of such monies to the exclusion of the interest of any conflicting gifts or revocations made in the will.

Where there are no nominations made for EPF, the Employees Provident Fund Act 1991 and the Employees Provident Fund Regulations 2001 empower the EPF Board to pay any such EPF monies in a deceased’s EPF account to any applicant who produces a grant of probate (to be distributed in accordance with the deceased’s will) and/or letters of administration (to be distributed in accordance with the DA 1958).

In the case of insurance monies, the Financial Services Act 2013 stipulates that if the nominee(s) named by the policyholder are the spouse, children and/or parents of the deceased policyholder, such insurance monies shall not form part of the deceased person’s estate. However, if the nominee is anyone else, they shall only take the benefit of the insurance monies as an executor/executrix and such insurance monies would form part of the deceased policyholder’s estate to be distributed during the administration of the deceased policyholder’s estate in accordance with their will and/or the DA 1958.

RESEALING OF PROBATE AND LA

Pursuant to Sections 4 and 14 of the AEO 1933, foreign grants obtained in any of the Commonwealth Countries outside the State of Sarawak confer no authority upon the foreign executor(s)/executrix(es) and/or administrator(s) to administer an estate in Sarawak. The relevant provision in Section 14 of the AEO 1933 is as follows:

(1)Where a grant of probate or LA in respect of a deceased person owning assets in the State has not obtained under this Ordinance, a grant of representation to the estate of such person obtained from the proper authority in any part of the British Empire (including British Protectorates and Mandated Territories) or from any competent British Court in any foreign country shall be effective in the State as regards property specified in a schedule authenticated under the hand and official seal of the Probate Officer and annexed to it.

As such, executor(s)/executrix(es) and/or administrator(s) who have obtained a grant of representation (i.e probate and/or LA equivalent outside of Sarawak) would need to apply to a Probate Officer in Sarawak for the grant of representation to be resealed if they intend to administer the estates of the deceased in Sarawak.

CONCLUSION

In conclusion, the administration of estates in Sarawak, whether through grants of LA or probate, is a critical process ensuring that the deceased's assets are distributed according to the wishes of the deceased and/or in accordance with the law. Understanding the distinction and similarities between these two legal instruments and processes are essential for executors/executrixes and administrators alike in order to ensure a smooth administration of the deceased’s estate.

WHY IS ESTATE PLANNING SO IMPORTANT?

As of February 2025, it is reported that around RM65 billion in assets, including real estate and cash, belonging to deceased individuals in Malaysia remain unclaimed due to lack of estate planning.

Berita Harian reports that these include RM500 million in cash held under Amanah Raya Berhad, RM60 billion in real estate managed by the Land and Mines Office (PTG) and RM4.5 billion in money held by the National Account Department (JAN).

Without proper estate planning, transferring assets can be quite difficult, often involving lengthy legal procedures and complex paperwork. Where distribution of land is concerned, inadequate documentation (such as missing death certificates, birth certificates of the deceased’s parents, and other relevant land documents) may cause prolonged delays in claiming inheritance and lead to unresolved cases.

Therefore, just like how a contingency plan prepares you for unexpected events, estate planning, such as through wills, trust management, or hibah (gifts), ensures that all your assets are clearly managed when you're no longer able to make decisions.

Source: Malay Mail

DISCLAIMER: THE CONTENTS HEREIN ARE INTENDED FOR GENERAL INFORMATION ONLY AND NOT TO BE CONSTRUED AS LEGAL ADVICE. SHOULD YOU HAVE FURTHER QUERIES AND/OR WOULD LIKE TO HAVE THE FULL ARTICLE, KINDLY CONTACT US.