The Practical Application of a Living Trust in Malaysia

 Authored by Pravin Rakawan

1. Introduction

   
   

A living trust, also known as an inter vivos trust, is a legal arrangement where a person (the settlor) transfers ownership of assets into a trust during their lifetime. These assets are then managed by a trustee for the benefit of designated beneficiaries. In Malaysia, living trusts are recognised as express trust under the Trustee Act 1949, the Trustee Companies Act 1949, and principles of English common law. 

Unlike a will, which only takes effect upon death, a living trust is effective immediately once created. This makes it a versatile estate planning tool for asset management, incapacity planning, and probate avoidance.

2. How a Living Trust Works in Malaysia

1. Creation and Documentation

The settlor expresses intention to create the trust through a trust deed or declaration of trust. 

The trust must satisfy the “three certainties” as prescribed in Section 44c(3) of the Trustee Act as amended by Trustee (Amendment) Act 2025: -

1. Certainty of Intention: clear intent to create a trust,

2. Certainty of Subject Matter: identified assets,

3. Certainty of Objects: identifiable beneficiaries.

2. Parties Involved

   
   

Settlor: transfers assets into the trust.

Trustee: holds legal title and manages assets according to the trust deed. Trustees may be individuals or licensed corporate trustees (e.g., Amanah Raya, Maybank Trustees).

Beneficiaries: persons or entities who will benefit from the trust.

Protector/Appointor (optional): may be appointed to oversee trustees and ensure compliance.

3. Activation of Trust

The trust is effective once assets are transferred into it, even if certain provisions only come into effect on incapacity or death of the settlor.

It is common for a successor trustee to be named to take over management if the settlor becomes incapacitated.

3. Practical Benefits of a Living Trust

1. Avoiding Probate

Assets placed in a living trust bypass probate, allowing quicker and private distribution compared to the administration of a will.

2. Incapacity Planning

Unlike a power of attorney, which lapses if the donor loses mental capacity, a living trust continues to operate. A successor trustee may immediately assume control of the trust property, ensuring uninterrupted management.

3. Flexibility in Lifetime Asset Management

Revocable trusts allow the settlor to amend or revoke terms during their lifetime, whereas, Irrevocable trusts provide stronger protection but require the settlor to relinquish control.

4. Conditional or Discretionary Distribution

A trust deed can include conditions such as, income to children only after reaching a certain age, or provisions that take effect when the settlor is incapacitated.

5. Privacy and Continuity

Wills become public during probate, while living trusts remain private. They also ensure continuity of asset management across generations.

4. Compliance and Legal Formalities

1. Enforceability

To be enforceable in Malaysia, the following must be observed:

• Trust Deed must be in writing, stamped, and signed by the settlor and trustee(s).

• Asset Transfers must be properly completed for example, land registration under Section 344 of the National Land Code or share transfers recorded with companies.

2. Trustee Duties

Trustee Duties under the Trustee Act 1949 include:

• Keeping trust property separate from personal property,

• Maintaining proper accounts,

• Acting prudently and in good faith for beneficiaries’ benefit.

  
  

The trustees are also obliged to carry out the duties as provided under the Trust Deed or Declaration of Trust.

3. Court Recourse

Where disputes arise, trustees may seek orders from the High Court under the Trustee Act, including vesting orders under Section 53 and confirmation of powers under Section 67.

5. Challenges and Considerations

• Proper Funding: A trust without properly transferred assets is ineffective.

• Costs: Legal drafting and trustee fees add to the cost of establishing and maintaining a trust.

• Creditor Protection: Revocable trusts generally do not protect assets from creditors.

• Duration: Trusts in Malaysia are subject to the common law perpetuity period (maximum 80 years).

6. Conclusion

In Malaysia, a living trust is a practical estate planning mechanism that provides continuity, flexibility, and privacy in the management and distribution of wealth. It avoids probate, secures asset management during incapacity, and allows tailored distribution to beneficiaries. While the structure requires careful legal compliance and administration, its advantages make it a valuable tool for those seeking to preserve and transfer wealth efficiently across generations.