Simple Notes on Harta Pusaka for Muslim Families
Philip Reinagle (1807) copper etching with aquatint in “New Illustration of the Sexual System of Carolus von Linnaeus: And the Temple of Flora, or Garden of Nature”.
Here I focus on Muslims who died without a will because most of our clients fall into this category.
How to Administer the Property of Deceased Relative
Steps:
1. Gather all information about the Deceased’s Estate
2. File application for LA.
3. File application for Sijil Faraid.
4. File application for exemption of requirement to provide surety.
5. Obtain order (LA).
6. Obtain Distribution Order and register at Land Office (for land, house, shoplot)
For application of LA only you would need around 3-4 months.
Notes on Getting the LA
Is there a Time Limit to apply for LA?
No. I have been consulted in relation to harta pusaka where the deceased passed away before the First World War.
However, the longer you wait, the more the tendency of documents being lost, witnesses dying, beneficiaries dying or becoming untraceable, and other consequences.
Family Meeting
This is not a legal requirement but it is a good idea.
Do not avoid this even if you do not like some of your relatives or they dislike you. No more excuses with the use of Zoom and WhatsApp Groups.
Have a meeting with all the relevant family members / beneficiaries or tell them what you are planning to do. You will need them to sign documents later on, so it is nicer to inform them early on instead of telling them last minute and having to explain to them again and again.
Gather All the Information about the Deceased’s Estate.
Estate means all the property that belonged to the Deceased. Sometimes the Deceased owns all the property on their own. Sometimes they owned only a part (a share) of a property together with other people.
1. Obtain details of all beneficiaries who have the right to inherit from the relative.
2. For beneficiaries such as spouse and children, obtain documents that prove the relationship – for example Marriage Certificate and Birth Certificate.
3. Obtain details of all the property belonging to the Deceased Relative. This means Geran Tanah, copy of title for land and cars, share certificates, informal IOUs for friendly loans.
4. Confirm whether there exists a Will / Wasiat or other legal document. I hope to cover this topic another time.
5. Check whether there is any money owed to or owed by the deceased. Whether deceased has any legal cases.
Sijil Faraid
This is a requirement for the estate of a deceased Muslim.
Different states require the Sijil Faraid at different times. This is not a law matter per se but an administrative one. We have observed that Kuala Lumpur High Court Court does not require Sijil Faraid for an application for LA. However, Shah Alam High Court requires the Sijil Faraid up front.
To get the Sijil Faraid, you need to file an application at the right Syariah Court. If the estimated value of the estate is above RM100,000, the right court is the Syariah High Court.
The Syariah Court declares the rightful beneficiaries and their rightful portions of the estate. So it declares. Implementation of those rights is something else.
What else can I use the Sijil Faraid for?
Sijil Faraid is not mandatory in all cases. It is not a stand-alone item, but it is often a document required for you to do something else. Some examples of the other uses of a Sijil Faraid:
1. When the widow files for harta sepencarian – A Sijil Faraid is submitted to the Syariah Court to determine the beneficiaries entitled to their respective portions of the estate. Yes, harta sepencarian is not only for divorce cases.
2. If there arises a dispute or question on the entitlement of each beneficiary, you can apply for Sijil Faraid to have the question determined by the Syariah Court. For some people it is important that a Syariah Court determines it, it is something official and can be kept as record and shared. Otherwise it is not mandatory to have one in that context.
What You Can Do with an LA
LA means Letters of Administration. With an LA you can do this:
a. Deal with many types of property such as money in bank accounts and vehicles.
b. Sue for money owed or to make certain other claims on behalf of the deceased.
With LA alone you cannot deal with real estate (land, house, condominiums, shoplots). The Land Office will need a Distribution Order for that.
From Where do you get an LA?
File an application to any one of these 3 below:
a. High Court
b. Amanah Raya
c. Land Office
The application is made in different forms with different procedures for each.
Earlier, my sister applied for LA through Amanah Raya. Now I need to apply for a new LA at the High Court. Any issues?
If you have earlier filed an application for LA, and then you want to later apply for another LA, you need to cancel/withdraw the earlier LA or LA application. There is a Borang C that you need to cancel.
Check Bahagian Suratkuasa Wakil at the relevant office at the state court.
How do I find out if there exists an LA application … without informing my sister?
As mentioned above, check with Bahagian Suratkuasa Wakil at the respective court, usually there is one office per state. Call them first.
If it was a court application, you can conduct a file search if you know the case number. Sometimes the court staff can help if you only have the name of the applicant but not the case number – but it depends on the individual court staff whether they feel like helping you.
If your sister filed through Amanah Raya, they might not entertain a query from you because you are not their “customer” registered in their system.
What is the difference between LA applied to or through the High Court, Amanah Raya and Land Office?
High Court has the widest powers and can administer almost anything. It is also the most costly and you should appoint a lawyer for this work. Use the High Court route if the property is valued above RM2 million, or involves some potential controversy (for example, contentious appointment, no name registered or just interest in land or other rights). Typically, you can obtain an LA from the High Court in about 3-4 months.
Amanah Raya has good reach through its numerous branch outlets at strategic locations and its online and postal services (you can send them documents by post). But they have limits on what they can administer on their own.. Use Amanah Raya for moveable property valued below RM600,000. For this category of assets, they have the power to issue LA on their own without going to Court.
Amanah Raya provides lawyer-esque services too. For immoveable property (land, house, shoplifts) up to RM2 million, they provide a service whereby on your behalf they can apply to the Small Estates Distribution Unit under the Land Office. But you might as well do this own your own (see next paragraph).
Section 13 of the Public Trust Corporation Act 1995 also empowers Amanah Raya to apply for LA to the High Court for assets valued above RM2 million, but I have not come across this scenario in my own practice. You might as well appoint a law firm to do this end to end. You will not get personalised service from Amanah Raya, not like you would from a typical lawyer.
As mentioned above, Amanah Raya also maintains ground-floor offices at strategic locations, so it is easier for common folk to walk-in (subject to pandemic conditions of course). Sometimes Amanah Raya or their staff also try to sell you some other products, which I would not express any opinion here. Apparently, Amanah Raya provides services such as locating untraceable beneficiaries or holding the properties on trust for them until they have filed a legal claim.
Land Office is cheap and involves you filling forms and presenting documentation to the officer. By my assessment it is rakyat-friendly because you can deal with the land office staff at the counter and they are used to deal with everyday folk. Chit chat with them, be humble and courteous, and you may even get useful tips from them. The location of their offices may not always be convenient for you, and their on-line service is often non-existent or not very user friendly. Land Offices also have little quirks and differences from one Land Office to another, which is impossible to detail here. The scope of services is also limited in its jurisdiction. There is more footwork involved. Land Office is good for those scenarios where the deceased left behind a house or a few plots of land in the same hinterland within the Land Office’s jurisdiction. Do not use this method if you are a super-busy individual. Some Land Offices are busier than others. During the pandemic, the service delivery of certain Land Offices in high-population states have been affected adversely.
What are the Legal Fees for appointing a Lawyer for an LA matter?
Many lawyers look at the value, number, location of properties as a way to valuate the fees. You can get quotes from different lawyers and decide accordingly.
Can I apply for LA at the High Court without a lawyer?
Yes, but it would be against my best advice. You will need to draft the Originating Summons, Affidavits, various attachments, you will need to vet the documents to make sure everything is in order, you will to ensure things are filed as they should, apply for exemption of surety if necessary and other steps. You will need to check on the court, extract the cause papers when dates are fixed. You would also need to answer the Court’s questions if there are any, and you will need to draft, file and extract the Court order.
In my view, if you are going to go it on your own, your best bet would be the Land Office, subject to the limitations mentioned above.