3 years to get a Grant of Probate & AmanahRaya to release of the assets?

Is it true that “It takes up to 3 years to get a Grant of Probate and you still have to go to AmanahRaya to obtain a release of the assets”?

Short, simple answer: No, it is not.

A friend forwarded some screenshots of a social media post to me sometime last week which suggested that:

1. It takes anywhere between 3 months to 3 years to obtain a Grant of Probate; and
2. Even after obtaining the Grant of Probate, you need to go to AmanahRaya for them to release the assets.

The whole point of the said social media post was to convince people that it is much better to set up a trust than to make a Will.

So, why is this view untrue?

1. Time taken to obtain a Grant of Probate

If a person dies leaving a Will, his executor who he has appointed in the Will would instruct a lawyer to apply for what is called a Grant of Probate. This Grant of Probate is the legal document that gives the executor powers to administer and distribute the deceased person’s estate.

Regardless of the value of the deceased person’s estate, only the High Court has the power to issue a Grant of Probate.

I will be writing more on the steps which you can take at the time you prepare your Will to ensure that your executor will be able to obtain a Grant of Probate expeditiously.

Suffice to say, for present purposes, that most seasoned probate practitioners will agree that in cases where all the assets, beneficiaries, and liabilities of a deceased person can be easily ascertained or discovered, it takes between 3 to 6 months from the time you engage a lawyer to obtain a Grant of Probate.

It is only in very extreme cases where there are serious disputes between family members, including disputes on the validity of the Will, that it may take a longer time to obtain a Grant of Probate.

So, for the majority of probate applications out there, they do not take up to 3 years to obtain!

I suspect the reason why anyone would think that it can take up to 3 years to obtain a Grant of Probate stems from the misunderstanding of Order 71 rule 5(6) of the Rules of Court 2012 which provides that where an application for Grant of Probate is made for the first time after 3 years from the death of the deceased, the applicant i.e., the executor ought to explain the reason for the delay in making the application.

Therefore, it is generally down to how quickly the executor and lawyer appointed by the executor can ascertain the necessary information and beneficiaries to enable the papers to be prepared and filed in Court.

But there are, of course, other factors out of our control that can determine how quickly you can get a Grant of Probate. One of it would be how quickly you can get a hearing date in court. Generally, we do get a hearing date in court 1 month from the date of applying. However, as we saw and experienced in 2020, due to the Covid-19 pandemic many court applications and hearings had to be postponed.

2. AmanahRaya’s jurisdiction over estates

The statement that even upon obtaining the Grant of Probate you would need to seek AmanahRaya’s assistance in releasing the assets is untrue.

AmanahRaya’s jurisdiction is in respect of summarily administering:

1. estates consisting of movable properties only;
2. where the value of the estate is below RM600,000.00; and
3. where the deceased person died without leaving a Will.

AmanahRaya, of course, can play the role of a public trust corporation where they can act as the executor and apply for a Grant of Probate in the High Court where:

1. the deceased person appointed AmanahRaya as executor of his Will;
2. the executor appointed under the Will had passed away before administration of the estate can be completed and for whatever reasons, no other executor is available to complete the administration. Although, the general position in these circumstances is that the deceased executor’s own executor will be the executor; and
3. the executor appointed under the Will declines the appointment and there are no other persons able to take up the position.

Further information on what AmanahRaya can or cannot do can be found at https://www.amanahraya.my/estate-administration/.

In conclusion, the sweeping statement that you still need to seek AmanahRaya’s assistance to release the assets upon obtaining a Grant of Probate is also untrue.

Conclusion

I hope I dispelled this misconception and that you will be better informed of the true position of the law when making estate planning decisions.

Trusts can be useful in many situations but not everyone will need to set up a trust. For many, a well-drafted Will would be more than sufficient to set their affairs in order.

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