There are many different types of grants of representation, each one designed to cover a particular circumstance. The most common cover the two most common situations—either the deceased died leaving a valid will or they did not. If someone left a valid will, it is more than likely that the grant is a grant of probate. If there was no will, the grant required is likely to be a grant of administration. There are many other grants that can be required in certain circumstances, and many have technical Latin names, but the general public is most likely to encounter grants of probate or administration. If an estate has a value of less than £5,000.00 or if all assets are held jointly and therefore pass by survivorship, for example to a surviving spouse, a grant is not usually required.
This is another strategy that can be used to limit death taxes. It involves an individual locking in the current value and thus, tax liability, of their property, while attributing the value of future growth of that capital property to another person. Any increase that occurs in the value of the assets in the future is transferred to the benefit of another person, such as a spouse, child, or grandchild.
An applicant may challenge the validity of a person's will after they have died by lodging a caveat and requisite fee at the probate registry. This prevents anyone from obtaining a grant of probate for that person's estate for six months, which the applicant can shortly before that point apply to extend. A caveat is not to be used to extend the time for bringing a claim for financial provision from a person's estate, such as under the Inheritance (Provision for Family and Dependants) Act 1975. The court can order costs against an applicant using a caveat for that purpose.
Muniment of Title provides a streamlined procedure for probating a will, and is the only means by which you can probate a will more than four years after a decedent’s death. With this process, the will is filed for probate, but the Court does not appoint an executor or administrator for the estate. Instead, once the Court signs its order establishing the will as the decedent’s true last will, a certified copy of the will and the court order can be used to transfer title in any property owned by the decedent to those listed in the will. The will and the order serve as an equivalent to a new deed to any real estate.
The personal representative must understand and abide by the fiduciary duties, such as a duty to keep money in interest bearing account and to treat all beneficiaries equally. Not complying with the fiduciary duties may allow interested persons to petition for the removal of the personal representative and hold the personal representative liable for any harm to the estate.
The executor also has to pay off any taxes and debt owed by the deceased from the estate. Creditors usually have a limited amount of time from the date they were notified of the testator’s death to make claims against the estate for money owed to them. Claims that are rejected by the executor can be taken to court where a probate judge will have the final say as to whether or not the claim is valid.
In most states, immediate family members may ask the court to release short-term support funds while the probate proceedings lumber on. Then, eventually, the court will grant your executor permission to pay your debts and taxes and divide the rest among the people or organizations named in your will. Finally, your property will be transferred to its new owners.
A will is a legal document created to provide instructions on how an individual’s property and custody of minor children, if any, should be handled after death. The individual expresses their wishes through the document and names a trustee or executor that they trust to fulfill their stated intentions. The will also indicates whether a trust should be created after death. Depending on the estate owner’s intentions, a trust can go into effect during their lifetime (living trust) or after their death (testamentary trust).
All separate papers, instruments, or sheets comprising the most recent of a testator's wills will be admitted to probate. Where a later will does not explicitly revoke all prior wills, two separate and distinct wills can be probated. Probate courts seek to carry out the declared intention of a testator regarding the disposition of property, and they resort to distributing property according to the law of descent and distribution only where no reasonable alternatives exist.
In West Malaysia and Sarawak, wills are governed by the Wills Act 1959. In Sabah, the Will Ordinance (Sabah Cap. 158) applies. The Wills Act 1959 and the Wills Ordinance applies to non-Muslims only. Section 2(2) of the Wills Act 1959 states that the Act does not apply to wills of persons professing the religion of Islam. For Muslims, inheritance will be governed under Syariah Law where one would need to prepare Syariah compliant Islamic instruments for succession.
Family attorneys and estate attorneys, also called probate and wills attorneys, can each prepare wills. The type of lawyer best suited to prepare your will depends on your situation. Most family attorneys provide services to prepare basic wills, including bequeathing property and personal items to family or naming a guardian for minor children. However, estate attorneys specialize in preparing wills in more complex situations. Consider hiring an estate attorney if you:
Wills often contain instructions on who should be appointed legal guardian of the decedent's minor children. The probate court may investigate the qualifications of the proposed guardian before granting an order of appointment. When a will does not contain a guardianship provision, the court itself must determine, based on the best interests of the children, who should be appointed guardian.
Section 2 of the Wills Act 1959 defines a will as a ‘declaration intended to have legal effect of the intentions of a testator with respect to his property or other matters which he desires to be carried into effect after his death and includes a testament, a codicil and an appointment by will or by writing in the nature of a will in exercise of a power and also a disposition by will or testament of the guardianship, custody and tuition of any child’.
Procrastination is the biggest enemy of estate planning. While none of us likes to think about dying, improper or no planning can lead to family disputes, assets getting into the wrong hands, long court litigation, and excess money paid in estate taxes. So pick a time to get started. To quote Benjamin Franklin, “By failing to prepare, you are preparing to fail.”