The Inheritance of property becomes an issue once the owner has passed on. Whether there is a Will or not, approval must be obtained before the estate can be distributed.
Every individuals endeavours to acquire property.Such property takes different forms. It could be cash, money in bank, shares in a business enterprise or real estate in form of land or residential or industrial building.
When a person's life comes to an end, all this is left behind. What happens to such property and to whom it goes to is referred to as the administration of estate of the deceased. Where a person has directed , through a Will to whom the property or estate is to go to, this will be carried out to the extent that the law of the country allows. Otherwise, the property will pass on to personsor bodies as stipulated by law.
When those who are entitled to the property can amicably agree on the manner the property is to be passed down, the process of devolution will run smoothly. However , when there is dissension among those who claim inheritance, a costly and prolonged litigation may ensue.
Whether there is a cordial relationship or bitter dispute between those who are entitled to the inheritance, the courts and in some cases,other tribunals, have to be involved to supervise the inheritance process.
When the property is comprised wholly or partly of land, and does not exceed the value of RM600,000, one need not always go to the High Court. In such a situation, an application can be made under the Small Estate (Distribution) Act 1955.
The Act contains provisions for the administration of customary as well as native land. Under this Act, the collector of the district where the greater part in value of the property is situated, has exclusive jurisdiction to deal with the distribution and administration of the whole estate, unless this specifically restricted.
The High Court is not entirely irrelevant to the process. The court continues to have the power to be involved and is available for references to be made to it on points of law so that its opinion and direction may be sought. The High Court is also available to hear any appeals made by any person who is aggrieved by any order or decision made by a collector.
Where the property of the deceased does not come within the scope of being a small estate, then those who seek to administer the estate must resort to the High Court for its endorsement , whether or not the inheritance is disputed.
When a person dies leaving no Will, he is said to die interstate. In such cases, an application to administer the property is made by way of petition for Letter Of Administration. Upon everything being order, the court issues a Grant Of Administration. For such, the applicant will be required to furnish 2 sureties ( guarantors) .
When a person leaves a Will to cover all his property, the administration of the estate requires a Petition for Probate ( Letter of Probate) . Upon the court being satisfied with the Will, a Grant of Probate is issued to the applicant with an executor appointed whether named in Will or appointed by court.
Thus whether there is a Will or not, an application has to be made to the High Court to administer the estate of the deceased person before administration and distribution of estate can proceed.
This procedure is in place to ensure that those who are legitimately entitled to inheritances are amply protected. Any disputes to claimed rights is determined at this stage before distribution of the inheritance can proceed.
This discussion would be incomplete without some references to Wills. A Will is a direction by a person as to how the property and inheritance is to be dealt with upon his death as well as how certain other aspects are to be addressed. Two aspects relating to a Will need to be mentioned at this stage.
> The Will does not do away with the need to apply to the appropriate tribunal ( the High Court)
> It existence is no guarantee that everything will be carried out accordingly. It is possible for a Will to be challenged and this could lead to complex litigation. There could be occasions when the validity of a Will is not challenged . However modification or attempts to qualify its full effort could emerge. This could occur when there are specific circumstances provided for by the law.
There is also a difference in approach when it comes to Will for Muslims. In the case of Muslims, the inheritance has to be on the basis of Syariah law principles.
A Muslim can only will away not more than 1/3 of its estate to those who are not entitled under Syariah law. The remainder will be required to abide by Syariah Law
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