Hafiz Zubir & Co.

Comparing Roles and Functions: Estate Administrator, Trustee and Power of Attorney in Malaysia

1. Estate Administrator

  • The legal framework for estate administration in Malaysia is primarily governed by the Distribution Act 1958 (for estates without a valid will) and the Wills Act 1959 (for estates with a valid will).
  • The Probate and Administration Act 1959 sets out the procedures for obtaining a grant of representation, such as a grant of probate (for wills) or letters of administration (for intestate estates).
  • The High Court of Malaysia has jurisdiction over estate administration matters and applications for grants are typically made to the court (for properties valued more than RM2,000,000.00).
  • The Estate Administrator, also known as the Executor or Administrator, has legal responsibilities and duties, including managing the estate of the deceased person, paying debts and taxes and distributing assets to all beneficiaries as instructed in the will or as per the laws of intestacy.

2. Trustee

  • The Trustees Act 1949 governs the creation and administration of trusts in Malaysia.
  • A trust is created by a Trustor through a trust deed or instrument, which specifies the terms and conditions of the trust, the Trustee’s powers and duties and the beneficiaries’ entitlements.
  • The Trustee is an individual or a corporate entity appointed by the Trustor or by the court in certain circumstances, to manage, safeguard and administer assets held in trust for the benefit of beneficiaries.
  • The Trustee holds legal ownership of the trust assets and must follow the instructions provided by the Trustor, exercise due care and act in the best interests of the beneficiaries, ensuring the assets are protected and distributed appropriately to the beneficiaries in accordance with the trust deed.
  • By transferring assets to a trust and appointing a Trustee, Trustor can protect his/her assets from potential risks, such as creditors, lawsuits or financial instability. This can help shield the assets from personal liabilities and ensure their preservation for future generations.
  • A trust can be specifically structured to provide for the ongoing support and needs of the beneficiary with special needs. The Trustee can manage the trust assets and ensure that they are used to enhance the quality of life and support the unique requirements of the individual with special needs.
  • Trusts can also be utilized for philanthropic purposes. By establishing a charitable trust and appointing a Trustee, individuals can contribute assets to support charitable organizations or causes they care about.
  • The trust deed may outline the circumstances under which the Trustee can be removed or replaced.
  • The Malaysian courts have jurisdiction over trust matters and Trustees are subject to the court’s supervision and can be held accountable for any breaches of their fiduciary duties.

3. Power of Attorney

  • A Power of Attorney (POA) is a legally binding document that empowers the recipient of power, known as the Donee, to act as an attorney on behalf of the giver of power, known as the Donor.
  • This legal tool is designed to grant specific powers to the Donee, aiming to accomplish certain objectives.
  • In Malaysia, the creation and utilization of a POA are regulated by the Powers of Attorney Act 1949. The Act outlines the essential formalities that must be adhered to, including the requirement for the document to be in writing, bearing the signature of the Donor and witnessed by two individuals.
  • The Act also specifies the scope of powers that can be granted, which can be general or specific to particular matters.
  • This arrangement is particularly useful for situations involving an elderly individual or a property owner seeking to delegate authority to family members or third parties, facilitating smoother management of property-related transactions.
  • The Donor must have the legal capacity to grant a POA and he/she can revoke or modify it as long as he/she is mentally competent to do so.
  • A notable provision within the POA pertains to its revocable or irrevocable nature. An irrevocable POA signifies that neither the Donor’s intent nor his/her passing can invalidate the registered POA. Consequently, the POA remains in effect even after the Donor’s demise.
  • The Donee, who is also known as the legal representative or agent, must act in the best interests of the Donor and within the authority granted in the POA.
  • A POA enables the Donee to make decisions and take actions on behalf of the Donor, such as managing finances, making legal decisions, signing legal documents or handling healthcare matters based on the authority granted in the POA.

In conclusion, as individuals navigate the realms of estate administration, trust management and the delegation of legal authority, seeking the guidance of legal professionals is vital. With proper legal advice, due diligence and adherence to established legal frameworks, individuals can confidently engage in informed decisions, secure their assets and ensure that their intentions are meticulously executed.