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Appointment of executor and trustee in a will and trust

What the roles involve

Executor	Named in the will. Applies for the grant and administers the estate.
Administrator	Appointed by the court where there is no will or no executor able to act
Trustee	Holds assets for beneficiaries under a will trust or a trust deed, subject to statutory duties
Who can be appointed	An adult of sound mind, or a trust company that provides trustee services
More than one	A will may appoint several to act jointly, and should name substitutes
Replacement	Trustees may retire and new trustees may be appointed, in the manner the trust instrument or statute allows

Executor and trustee are two different jobs

An executor gets the estate in and clears the liabilities. That role is finite. A trustee holds assets over time for somebody else's benefit, and that role can run for years.

They frequently sit with the same person. Where a will leaves a share to a child under 18, or sets up a trust for a spouse for life, the executor does not simply finish and walk away. They continue holding those assets as trustee, subject to the duties that role carries under Malaysian trustee legislation, including duties about investment, sale of trust property, and maintenance of minor beneficiaries.

This is worth thinking about when choosing. Someone who can manage a six-month administration is not necessarily the right person to manage a fund for the next fifteen years.

How to choose well

• Name a substitute. If your sole executor dies before you or cannot act, a grant of probate is no longer available and your family falls back to a harder application. A substitute clause costs nothing.
• Consider appointing more than one, particularly where a beneficiary is a minor, since the court will often want more than one person in place.
• Think about location. An executor living overseas complicates security, signing and attendance.
• Think about conflict. Appointing one of several children who are not on good terms puts that child in an impossible position.
• Consider a professional for a long-running trust, a business interest or a fractious family. A trust company or a professional can be appointed instead of, or alongside, a family member.
• Ask them first. Nobody is obliged to accept the role.

Replacing an executor or trustee

Appointments are not permanent and situations change. The route depends on the stage reached.

1. Before a grant is taken out, an executor who does not wish to act may renounce, and the estate then proceeds by a different application. Take advice first, because renunciation is not easily undone.
2. Where the sole executor cannot act, the court appoints someone to administer the estate according to the terms of the will.
3. Where a trustee wishes to retire, a replacement may be appointed in the manner the trust instrument allows or, failing that, as statute provides.
4. Where a personal representative has died mid-administration, a further grant may be needed to deal with the part of the estate not yet administered.
5. Where a trustee is not acting properly, beneficiaries may apply to the court. This is contentious work and the evidence matters, so take advice before confronting anyone.

What the role carries

Anyone accepting appointment should understand what they are taking on. A personal representative who distributes before liabilities are cleared can be made to make good the shortfall personally. A trustee holds legal title but must act in the beneficiaries' interests, keep trust assets separate, and account for what they do.

These are real obligations, not formalities. We brief the people you appoint so they know what is expected before they agree, which prevents the more common outcome of an executor discovering the duties only once something has gone wrong.

Frequently asked questions

Who can be an executor in Malaysia?

An adult of sound mind. Many people appoint a spouse, an adult child or a trusted friend, and a trust company that provides trustee services may be appointed instead. A beneficiary may be an executor, though a person who witnessed the will cannot take a gift under it.

Should I appoint more than one executor?

It is often sensible, particularly where a beneficiary is under 18, because the court will frequently want more than one person in place. At minimum, name a substitute in case your first choice cannot act.

Can my executor also be a beneficiary?

Yes, and it is very common for a spouse or adult child to be both. The separate rule is that a witness to the will, or that witness's spouse, cannot take a gift under it.

Can an executor refuse the role?

Yes. An executor who does not wish to act may renounce before taking out a grant, and the estate then proceeds by a different route. It is worth taking advice first, because renunciation is not easily reversed.

How do we remove a trustee who is not doing their job?

Where a trustee will not retire voluntarily, beneficiaries may apply to the court. This is contentious work and turns on evidence of what the trustee has actually done or failed to do, so take advice before raising it.

Can I appoint a professional instead of a family member?

Yes. A trust company providing trustee services may be appointed, either alone or alongside a family member. This is worth considering for a long-running trust, a business interest, or where the family is in conflict.

About this page. General information about non-Muslim estate matters in Malaysia. Muslim estates are dealt with under Faraid and fall within the jurisdiction of the Syariah Court. Where an estate is distributed without a will, the fixed shares apply in Peninsular Malaysia and Sarawak; Sabah has its own intestacy law and the shares there differ. Court thresholds, duties and fees are set by legislation and change from time to time, so we confirm the current position for your matter rather than quoting figures here. Nothing on this page is advice on your own situation. Tam Yuen Hung & Co. is a Malaysian law firm regulated by the Malaysian Bar.