When someone dies: wills and estates

Civil law: making a valid will

A will made by a person under the age of majority is not valid.

Wills Act s 4

A will must be in writing and signed at its foot or end by the person making it, or by someone else in their presence and by their direction.

Wills Act s 5(1), (2)

The signature must be made or acknowledged in the presence of two or more witnesses present at the same time, and the witnesses must sign the will in the presence of the person making it. No form of attestation is needed.

Wills Act s 5(2)

Civil law: when there is no will

Where a person dies without a will for some or all of their property, the property they were beneficially entitled to, for an interest that does not end on their death, is shared as follows after the expenses of administration, subject to section 4 of the Act:

• a spouse, and no children or other issue, and no parent: the spouse takes everything
• a spouse and a parent or parents, and no issue: half to the spouse, half to the parent or parents
• issue, and no spouse and no parent: the issue take everything
• a parent or parents only: they take everything
• a spouse and issue, and no parent: one-third to the spouse, two-thirds to the issue
• issue and a parent or parents, and no spouse: two-thirds to the issue, one-third to the parent or parents
• a spouse, issue and a parent or parents: one-quarter to the spouse, one-half to the issue, one-quarter to the parent or parents

Distribution Act s 6(1)

If there is no spouse, issue or parent, the estate goes in turn to brothers and sisters, then grandparents, then uncles and aunts, then great-grandparents, then great-grand-uncles and great-grand-aunts. If no one takes it, the Government is entitled to the whole estate, except land.

Distribution Act s 6(1)(i), (j)

In the Distribution Act, "issue" includes children and the descendants of deceased children.

Distribution Act s 3

Islamic law: the Syariah court

In the Federal Territories, a Syariah High Court hears and decides proceedings in which all the parties are Muslims about the wills of a deceased Muslim, the division and inheritance of property, and who is entitled to share in a deceased Muslim's estate and in what shares.

Administration of Islamic Law (Federal Territories) Act s 46(2)(b)

If the person who died was a Muslim living outside the Federal Territories, check which Islamic law and which Syariah court apply where they lived. This guide covers only the Federal Territories.

Small estates

A small estate is the estate of a person who has died, made up of property in any State and worth no more than RM5 million in total. Its value is taken at the date the first petition about it is filed or lodged, and the person's debts are not deducted.

Small Estates (Distribution) Act s 3(2)-(4)

Where a person has died without a will leaving a small estate, a beneficiary, a creditor or a purchaser can lodge a petition for its distribution with the Estate Distribution Officer in any state where the property is. Some others the Act names can lodge one in the circumstances it sets out.

Small Estates (Distribution) Act s 8(1)

If no earlier petition about the estate has been filed in the High Court or lodged with another Estate Distribution Officer, the Estate Distribution Officer investigates the petition and decides whether the estate is a small estate.

Small Estates (Distribution) Act s 8(4)

If it is not, the Officer transfers the petition to the High Court, where, unless the Court directs otherwise, it is treated as a petition for letters of administration. The rule on transferring a petition to the High Court does not apply where a petition about the estate has been transferred to the Estate Distribution Officer under section 7(1).

Small Estates (Distribution) Act s 8(7)