Rockwills2u.com.my - Frequent Ask Questions

Can I state my funeral arrangement in my Will?
Yes, you can. In a Will, you can mention your wishes and the appointed Executor will have to carry out your wishes.
In my Will, can I create a 'Trust Fund' to pay the maintenance expenses of my elderly parents and my retarded nephew that I loved very much?
Yes, you can. It can be known as ‘Maintenance Trust” for your elderly parent and your nephew. ‘Trust Fund’ can also be created for payments of education expenses, medical expenses, monthly donation etc.
If I write my Will today and pass on tomorrow, is my Will valid?
Yes, it is valid as long as the Will is written in accordance with the Will Act 1959, signed and witnessed by two independent witnesses.
What is a residuary clause?
It is one of the vital clauses in a Will. Any asset which the testator forgot to will away will automatically fall under the residuary clause. Thus, with a residuary clause, there is no partial intestacy of a Will.
I have written a Will recently. I am going to purchase some new assets next month, do I need to rewrite again? Will there be anyone receive these assets when I passed on without writing a new Will to include these new assets?
No, the new assets will fall under the residuary clause and distribute accordingly. However, if you do not want the beneficiaries named in the residuary estate to benefit from these new assets, then you need to write a new Will and name your preferred beneficiary for the new assets acquired after the date of the Will.

If I have already set up a Trust Account, should I write my Will and vice versa?
A Will is a necessary document to facilitate smooth and efficient distribution of your estates to intended beneficiaries. A Trust on the hand is an estate planning arrangement to prevent the necessary assets from being frozen or falling into the distribution process under the Will or the Distribution Act 1958. They are complementary instruments and you may need both, depending on your specific circumstances.
Can I keep my Will written by Rockwills franchisee in my safe deposit box in my bank?
It is not advisable because the safe deposit box will be frozen when you passed on. Thus, your family members may not be able to retrieve it for application of Grant of Probate.
It is stated in my Will that "I give my wife X RM10,000". After a divorce, she is no longer my wife and the description of my relationship with her is no longer valid. If I do not rewrite my Will, will she still able to inherit RM10,000 from me?
The former wife will still be able to inherit the RM10,000.
I bought a house recently and it is charged to the bank. If I give the house to my son, would my son have to settle the housing loan with the bank before he inherits the house?
Yes, he has to. Thus, it is advisable to purchase a Mortgage Reducing Term Assurance (MRTA) to pay for any outstanding loan should you passed on suddenly. Alternatively, it can be mentioned in the Will that the loan is to be paid from the testator’s estate.
I have withdrawn RM50,000.00 from my EPF account to invest in some unit trust fund. If I passed on, will my nominee for my moneys in the EPF account able to receive my unit trust investment as well?
No, your nominee will not. These unit trust investment form part of your estate not part of your EPF account. You can will this investment in your Will.
I have nominated my sister in my life insurance policy but was told that my wife and children are the true beneficiaries. Is this true? If yes, how to I ensure she gets the money?
Yes, it is true if you do not have a Will as the Insurance Act 1996 states that any person other than spouse, children and parent (if single) will only receive the policy money as an executor and must pass the money back to the deceased estate (or beneficiaries i.e. wife and children in this case). If your parents are alive they are entitled to a quarter of the money. Therefore, if you want her to receive this money, you can either assign the policy to her or write a Will in which you name her as the beneficiary to this particular policy.
In what circumstance a Will need to be rewrite?
They are a few situation you should consider rewriting your Will:

Your Will is lost or destroyed;
You intend to reallocate your assets to your beneficiaries;
You want to change your beneficiaries, Guardian(s), Trustee(s) or Executor(s);
There is substantial change in your financial situation;
A new arrival in the family;
You separate from or divorce your spouse;
You remarry;
You enter into a de facto relationship;
You intend of set up a Trust fund for your beneficiaries;
The death of both witnesses of the Will or difficult to locate both witnesses or if they migrate to another country;
There is a change in legislation such as death duties.

If I inherit a house from my father when he passed on, do I need to pay government estate stamp duty before transferring the house to my name?
Yes, you do, only a nominal amount, it is not according to the current market value of the house. The estate stamp duty was abolished on 01/11/1991.
Can I will away my immovable properties outside Malaysia in my Will?
No, the immovable properties will normally follow the law governing the immovable properties as it can vary from country to country. Thus, it is advisable to write a separate Will for these immovable properties.
I have only a house to will away to my son, can I write a simple Will myself and just mention that I give my house to my son on my demise, sign by me and two witnesses? Is this simple will valid?
If you write a simple Will without mentioning appointment of Executor/Trustee, a residuary clause and other essential clauses, your Will might become partial intestacy. Thus, it is always advisable to get a professional Will-writer to draft your Will to ensure it is a 100% valid Will.
I have a son, named John from my relationship with a man whom had left me. Recently, I am married to A, if I do not write a Will, will my son John able to receive part of my estate under the Distribution Act 1958?
No, as he is not a legitimate child. You need to write a Will to include him.
My client is a major shareholder of a Private Limited Company. Can he will away a piece of land which is registered under the name of the Company?
No, the Private Limited Company is a separate legal entity and is the true owner of the piece of land. He only owns it indirectly through the shareholdings in the Company and as such he cannot will it away. However, he can instead will away his shares in the Company.
I own a Private Limited Company. Can I will the shares to someone but, at the same time, put in a condition that the shares cannot be sold without the consent of a particular person?
No. Putting the condition in the Will cannot be legally effective because the Will does not bind the Company whose shares are being held as it is a separate entity. Any restriction on transfer of shares has to be mentioned in the Memorandum and Articles of Association of the company concerned.
Can I put everything under my company's name instead of writing a Will?
The first issue that will arise is what will happen to your shares in the company when you pass away. Who are going to benefit and how are you going to effect the transfer of those shares? Secondly, if it is not purely a holding company you should consider the risk of losing everything should the business fail and this defects the purpose of limited liability. Thirdly, any immovable property registered under a company will attract real property gains tax upon disposal irrespective of how long it was acquired. Last but not least companies will need to submit their annual reports and audited accounts every year and these will be considered public documents. As such, there will be a lack of confidentiality.
Can a Power of Attorney be used to transfer my assets to my family upon death?
A Power of Attorney normally allows the person whom the power is granted (the ‘donee’) to deal with the property of the donor e.g. selling, leasing or charging it or to enter into other legal transaction on behalf of the donor. A Power of Attorney will be revoked upon the death of either the donor or donee and as such it cannot be used like a Will to effect transfer of your assets to your family upon your death.

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If you have any queries on Will-Writing, please call us 03-7877 9939 or e-mail alvinleow@rockwills2u.com.my