Note: This article was prepared by our legal associate Cik Faten Nuradilla Jamil. We would like to thank her for her time and effort.
Executing the will of the testator
Here’s a situation (for non-muslims):
Someone close to you passes away. This means his estates are frozen. You are aware that he had executed a Will during his lifetime because he had once told you that he appointed you as the Executor. Now that he has passed away, you do not know what to do next.
Fortunately for you, we have prepared a step-by-step checklist for you to follow.
Step-by-Step Checklist for Executor of Will
Here are some insights and guidance you may consider in paving your way next as an Executor of the Will to administer the Deceased’s estates:-
- Find the original copy of the final Will executed by the Deceased (a.k.a the Testator of the Will) before his demise.
- Confirm that you are indeed the appointed Executor as per defined in Section 2 of the Probate and Administration Act 1959. To put it simply, this means that the Testator had named you as the Executor in his Will.
- Identify and list out all the beneficiaries to the estate in the Deceased’s Will.
- Identify and list out all the assets which belonged to the Deceased, and determine the assets bequeathed to each beneficiary.
- Identify and list out all the liabilities due and owing by the Deceased at the time of death.
- Make an application for a Grant of Probate in the High Court. You may engage a lawyer to assist you in the application. Among the list of items/documents you will need to provide your lawyer are as follows:-
- Original and Photocopy of the Will;
- Original and Photocopy of the Executor’s Identification Card;
- Original and Photocopy of the Death Certificate of the Testator;
- List of Beneficiaries;
- Photocopy of the Identity Cards of Beneficiaries;
- List of Assets & Liabilities; and
- Details, Statements and/or Documentations of all the Assets and Liabilities.The application filed into court will commence by way of an Originating Summons (Ex-Parte) together with an Affidavit in Support and an Oath of Administration affirmed by the Applicant as the proposed Executor.
- The two (2) Witnesses of the Will, whom had previously witnessed the execution of the Will by the Testator and had also signed the Will as witnesses, must now affirm an Affidavit each.The Affidavits must be filed into court, as proof that the Will was indeed executed by the Testator and witnessed by the Witnesses.
- The Registrar of the High Court will fix a hearing date for the Applicant to attend court.If the Registrar of the High Court is satisfied that all cause papers are in order, the Registrar will grant the order for Probate.
- Your lawyer will make the necessary filings to receive the Grant of Probate, with your name as the Executor.
- Once you have received the Grant of Probate, you may make as many copies of it as you want. You may get the copies certified as true copies by the Registrar of the High Court.
- Voila! Now you conduct all the Executor duties such as dividing and distributing the Deceased’s estates according to his desired wishes in the Will, as well as pay off and settle all his debts and liabilities.
Bring a copy of the Grant of Probate to all the relevant places in which you as the Executor will conduct the estate administration. It is important that you prioritize settling all debts and liabilities first, to avoid future repercussions of breach of duty.
Maximum Number of Executors Per Will
We would like to highlight that there may only be four (4) Executors of the Will, as per Section 4(1) of the Probate and Administration Act 1959. Nonetheless, a sole Executor or all Executors (if more than one (1) is appointed) may withdraw, be incapacitated or are unable to manage the estate of the Deceased. Hence in this situation, the estate administration may be applied by way of Letters of Administration with a Will annexed as per Section 16 of the Probate and Administration Act 1959.
When should you apply for probate?
You must also consider the timing of the application. It should not be way too soon, but at the same time not too late. This is because unless leave is obtained, you will not be issued a Grant of Probate if your application is within seven (7) days of the death of the Deceased as explained in Order 71 Rule 4(3) of the Rules of Court 2012. On the contrary, if you make the application after three (3) years from the date of the death of the Deceased, the delay should be explained pursuant to Order 71 Rule 5(6) of the Rules of Court.
Thanks for reading
We hope that after reading this article, you will be more confident in serving your duties as an Executor! Please do not hesitate to reach us if you need further assistance or answers relating to estate administration.
This article has been prepared for informational purposes only and should not be construed as legal advice. Should you need the services of a lawyer to help process your dearly beloved’s will, please reach out to our office.
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