When a person dies, what remains, from a legal standpoint, is their estate and its beneficiaries (assuming he has them and they are alive). A corpse has no legal personality.
An estate comprises all the assets owned and liabilities owed by the deceased. Assets ordinarily comprise things like immovable assets (land), moveable assets (vehicle, guitar, clothes, etc.), shares, bank accounts, rent, legal rights to something, and anything of value really. Liabilities are debts like credit card charges, bank loans, friendly loans, subscriptions, etc.
To manage and administer an estate, a personal representative (‘PR’) must be appointed. Until that happens, nothing can be done about the deceased’s estate. Assets will be left unsupervised and deteriorate and liabilities will be left unpaid and attract greater penalties. These matters prejudice the value and integrity of the estate.
For this reason, a PR should be appointed as soon as a deceased person dies. It sounds cold, but that’s prudence.
There are 2 kinds of PR.
The first type of PR is an executor. He is named and appointed in the will. An executor must be appointed in a will or an Islamic will. That is one of the main reasons for a will. Even though an executor’s appointment starts the moment the will takes effect, he should apply immediately to the High Court for a grant of probate (‘Probate’) after the deceased dies. Probate is the legal recognition of the executor’s appointment to the world at large. An executor’s authority and power emanates from the will, not the court.
The second type of PR is an administrator. He must be appointed when the deceased did not draw up a will to appoint an executor to carry out his bequest. Any of the deceased’s immediate family members have a right to be appointed administrator. There is an order of priority for the right to administratorship. That order depends on whether it is a Muslim or non-Muslim estate. An administrator must apply to the High Court to be granted the Letters of Administration (‘LA’). The administrator’s authority and power emanate from the LA and is subject to court supervision.
The point of the Probate/LA is to declare to all and sundry in Malaysia (and the world beyond) that the appointed PR has the authority and power to deal with the deceased’s estate. The Probate/LA makes it easier for everyone to know whom to deal with for matters about the estate. The PR is the person to deal with.
The requirement for Probate/LA applies to Muslims and non-Muslims.
The function of a Fara’id Order, which applies only to Muslims, is twofold.
The first is to certify who the beneficiaries of the estate are. The second is to certify their respective inheritance portions. It has no utility or function beyond that.
Ordinarily, a Fara’id Order is not necessary. The reality of it is for the common run of cases it serves no purpose because both those matters can be easily determined.
Firstly, we usually know who our immediate family are (grandmother, grandfather, father, mother, sister, brother). Secondly, many accurate Fara’id calculators online can work out the inherited portions.
Any beneficiary can apply for the Fara’id Order at the Syariah courts. It is not necessary for a PR to apply for the Fara’id Order. It can be applied for at any time. There is no legal necessity for it to be obtained prior to applying for the Probate/LA. There never has been.
Despite that, over these last few years, I understand there are some Registrars who insist on it for no good reason. I disagree with this additional unnecessary bureaucratic requirement when applied without cause.
For the great majority of undisputed estates, there is no need for it. Not every case requires it. A majority of uncontested ones do not. As I said earlier, there is no statutory legal requirement for it anywhere. There is no religious injunction either that says a Fara’id Order must be applied for before the Probate/LA is applied for.
Imposing such a requirement adds unnecessarily to the cost of applying for a Probate/LA. It delays the process because of the need to apply for a Fara’id Order in the Syariah courts. Most times, everyone knows everyone and the estate is modest. It is common for beneficiaries to have full-time jobs and be busy with their lives. Sometimes beneficiaries collectively agree for the Fara’id distribution not to apply and agree to their own arrangement instead. They can do this on the basis of takharuj.
The courts ought to be empathetic to the general public’s experience and consider ways to make the process simpler and affordable for them instead of more tedious and costly. There needs to be discernment in requiring a Fara’id Order for a Probate/LA application. The administrator can always obtain one on their own later if they feel the need to.
So when should a Fara’id Order be applied for? When a family has a vigorous dispute about the estate and each other’s entitlement to it. A highly contentious and emotionally charged type of case. The Fara’id Order is to provide legal cover for the PR in how he goes about administering and distributing the estate. If there is any dispute, he can fall back on the Fara’id Order to justify his distribution of the portions, assuming he did it correctly.
It is important to appreciate that the determination of an inheritance portion by a Fara’id Order does not give the beneficiary a right to her inheritance. That right only arises upon the distribution of her portion of the estate. And distribution can only happen after the appointment of the PR. A Fara’id Order identifies, it does not bestow.
A Fara’id Order does not determine the contents of the estate. For a Muslim estate, where there is a dispute about what is or is not part of an estate is primarily determined in the Syariah courts.
This occurs when there is an action for pengesahan hibah i.e., verification of gift or harta sepencarian i.e., property acquired during the pendency of the marriage to which contribution was made either direct or indirect. These are two claims that have an impact on the estate. If in fact there was such a gift, or there was harta sepencarian due to the ex-wife or wife, those claims would reduce the value of the estate available for distribution.
To sum up, the Probate/LA has to do with the PR and his administration and distribution of an estate, Muslim or not. The Syariah courts are there to determine any dispute about the contents of a Muslim estate. The Fara’id Order certifies who the beneficiaries are and their respective portions to the Muslim estate.
