Who's Who?

TRUSTEE

Your executors and trustees can be the same person. In fact, it is advisable to appoint the same person as the line between when the executorship ends and when trusteeship begins is difficult to define.

Their duties include:
1. Your trustee will continue to administer your estate in cases where the properties cannot be distributed, e.g. where there are minor beneficiaries or a life interest or a trust is expressly created under your Will.
2. Your trustee will manage your estate in accordance with your instructions or powers given to him under your Will or according to the Trustee Act, 1949, Malaysia.
3. A trustee cannot benefit by virtue of his/her office. All profits must be accounted for.
4. When there are minor beneficiaries, two trustees or a trust corporation should be appointed.
 

GUARDIAN

WHO IS OR CAN BE A GUARDIAN?

The father of an infant shall be the guardian of the infant's person and property. Where an infant has no father living, the mother of the infant shall be the guardian of his person and property. [Section 5 & 6, Guardianship of Infants Act, 1961, Malaysia]

If both parents of an infant are dead, the testamentary guardian (guardian appointed under the Will) if any, appointed by the last surviving parent shall be the guardian. [Section 7, Guardianship of Infants Act, 1961, Malaysia]

If both parents have died without appointing a testamentary guardian, the court or a judge may appoint a guardian of the infant's person and property or either of them. [Section 8, Guardianship of Infants Act, 1961, Malaysia]

DUTIES OF A GUARDIAN
(Section 3, Guardianship of Infants Act, 1961, Malaysia)

The guardian of an infant shall have the custody of the infant, and shall be responsible for his/her
 i) support, ii) health, and iii) education.

WITNESS

A Will must be attested to by two (2) witnesses present at the time the testator signs or affixes his or her mark.
Same for circumstances where the testator is unable to sign and someone else is signing on his or her behalf.
 

Utmost important that the beneficiary or beneficiaries of a Will (including his or her spouse)  CANNOT attest the Will or be the witness. The witnesses need not know the contents of the Will.

EXECUTOR

CHOOSING AN EXECUTOR
The choice of an Executor is of utmost importance. The reason for this is that the executor is the person responsible for the administration of the testator's estate. This brings into question the executor's trustworthiness and capability. Thus, to appoint an executor, several aspects must be examined. If the testators finds it difficult to appoint an individual as executor, there is always the Trust Corporations such as Rockwills Trustee Berhad.

Age
The minimum age requirement for appointment of an executor is 21 years old. It is advised that when considering the appointment, the desired person should preferably be the same age as the testator or someone younger or some one that is not too old. This is to prevent the executor predeceasing the testator, which if he does predeceases the testator, it will require obtaining the Letter of Administration with Will Annexed.

Willingness and Capability to Act
This is an important issue, as the executor must be willing to act, otherwise Letter of Administration with Will Annexed will have to be applied for instead of Grant of Probate. To prevent this from happening, there are two ways: (i) appoint substitute executors and (ii) obtain the consent of the person to be appointed prior to the appointment. The testator must ensure that at the time of the appointment, the executor is not incapacitated for example, mentally handicapped or insane.

Assets Management Skills and Professionalism
These points are important and should be considered carefully. If the testator has a large estate with many shareholdings and liquid assets, the executor's duty may even include direction to invest or continue certain businesses. Therefore, the executor in this instance ought to have some financial or management skills.

Integrity and Accountability

This is an integral part when considering the appointment, as upon the death of the testator, the estate will be vested to the executor and he/she alone will have the right to handle the estate. Due to this, there is a possibility of misusing or misappropriating the funds or assets of the estate. To prevent this, it is advised to appoint someone with integrity.

DUTIES OF AN EXECUTOR
The duties of the executor and trustee are generally set out in the Trustee Act and the Probate and Administration Act, in addition to the instructions in the Will, for the administration of the Estate. The duration of the office of an executor can sometimes be lengthy depending on the size of the estate.

Locating the Will & Funeral Arrangements
It is important to locate the Will as soon as the testator passes away and apply for Grant of Probate so to prevent any issue of tampering with the Will. As for funeral arrangements, it is usually done, thus, the family members may seek for reimbursement.

Calling in the Assets
The Executor in order to pay off debts and liabilities and facilitate distribution, must conduct a thorough inquiry among the beneficiaries, next of kin of the testator and close friends to determine the actual value of the testator's estate. This may not be enough.

The Will can be a guide to what the testator owned, but more so often, it does not contain all the assets of the testator, unless the Personal Assets Inventory Booklet is filled and updated. If there is not such inventory done by the testator, then the executor will have to "treasure hunt". This will involve him in writing to financial institutions and government departments.

The executor in performing his functions must act diligently and reasonably in the administration of the estate to facilitate the expedient administration of the estate.

Acting with Impartiality
The executor when acting in the capacity is to act impartially so as to prevent accusations of mismanagement and biases. If such accusations are proven, the executor will be liable for such loss.

Payments of Debts and Liabilities
In the administration of estate, debts and liabilities will have to be paid first before distribution of assets to the beneficiaries. The executor will use available assets of the estate to discharge the debts and liabilities. It is prudent for the executor to advertise in the Government Gazette or nation-wide newspaper for a stipulated period of time. This is especially important when handling a large estate.

Accounts of the Estate
Before distribution, the executor is to prepare and submit an account for the beneficiaries.
 

Distribution
After debts and liabilities have been paid, the remainder of the estate is to be distributed to the beneficiaries and if there are any minor beneficiaries, then the assets to them will be on trust.

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