The Hidden Challenge: Finding the Will
CM Law's Ultimate 50 List - Probate Problem #13: How do I find a will?
Losing a loved one is always a difficult experience, and dealing with their estate can add to the stress. One of the first tasks you may need to undertake is locating their will. This document is crucial as it outlines how they wish their assets to be distributed. But what happens if you can't find it? This guide will walk you through the steps to locate a will in Australia, with specific advice for different states.
Who is Eligible to Access a Will?
Before you begin searching, it’s essential to know who is legally entitled to access a will. According to Section 54 of the Succession Act 2006, the following individuals are legally entitled to access a will in New South Wales:
- Beneficiaries named in the current or any previous will.
- Surviving spouse or de facto partner of the deceased.
- Children of the deceased.
- Parents or guardians of the deceased.
- Creditors with claims against the estate.
- Persons with enduring power of attorney.
These individuals can request to view or obtain a copy of the will, ensuring that the deceased's wishes are followed according to legal requirements.
How to Find a Will of a Deceased Person Online
Many people turn to the internet to search for a will of a deceased person, especially if they want to find out if the will has been made public. It’s important to understand that a will generally only becomes accessible online after the Supreme Court has granted probate.
Probate is the legal process of validating a will, and once granted, the will becomes a public record. Typically, probate is required for several reasons:
- Banks and land registries, such as the NSW Land Registry, require probate to release the deceased's finances and property.
- Beneficiaries who wish to contest or challenge the will will need to access it. A beneficiary is someone named in the will to receive a portion of the deceased's estate.
- Individuals with claims against the deceased's estate may also need access to the will after the testator's death.
Probate determines who has the legal right to manage the deceased's estate, ensuring that the interests of the deceased are central to all decisions made.
- Executors are responsible for distributing the deceased's assets and property according to the will after probate is granted.
- Administrators take on this role when someone dies without a will (intestate). The court appoints the administrator, who must follow the rules and laws governing intestacy.
Steps to Locate a Will
1. Search Personal Possessions
Start with the simplest step: checking the deceased's personal belongings. Wills are often stored in filing cabinets, desk drawers, or a safe at home. Important documents are usually kept in secure locations, so look for any safe deposit boxes or locked drawers. You may also come across correspondence that could give clues about the location of the will.
2. Examine Emails and Digital Files
In the digital age, important documents like wills may also be stored electronically. If you have access, search through the deceased's email accounts or computer files for any references to the will. Emails between the deceased and their solicitor or digital copies of the will might be stored on their computer or cloud storage services.
3. Contact Banks and Secure Storage Providers
Banks often offer safe deposit boxes where customers can store important documents like wills. If the deceased used such services, check with the bank to see if they have a deposit box in their name. You will need to provide a certified copy of the death certificate and your identification to access the contents of the box.
4. Consult with Solicitors
If the deceased had legal representation, their solicitor might hold the original will. Contact the solicitor directly, or if you are unsure who the solicitor is, reach out to local law firms in the area where the deceased lived. Law firms commonly offer will storage services and might have the document in their custody.
5. Reach Out to the Trustee Organisation
Each state in Australia has a public trustee organisation that might hold the will if the deceased used their services. In New South Wales, the NSW Trustee and Guardian provide a will storage service. You can make an online enquiry with the necessary details such as the deceased’s name, date of birth, and death certificate to see if they have the will in their records.
- NSW Trustee and Guardian: https://www.tag.nsw.gov.au/
- Victoria State Trustees: https://www.statetrustees.com.au/
- Queensland Public Trustee: https://www.pt.qld.gov.au/
- South Australia Public Trustee: https://www.publictrustee.sa.gov.au/
- Western Australia Public Trustee: https://www.wa.gov.au/organisation/public-trustee
- Tasmania Public Trustee: https://www.publictrustee.tas.gov.au/
- Northern Territory Public Trustee: https://nt.gov.au/law/bdm/public-trustee
- Australian Capital Territory Public Trustee: https://www.ptg.act.gov.au/
What if the Will Cannot Be Found?
If you have exhausted all avenues and still cannot find the will, it's possible that the deceased died intestate (without a will). When this happens, the estate will be managed according to the laws of intestacy, which vary from state to state. You may need to apply for a Grant of Letters of Administration from the Supreme Court to manage and distribute the estate.
The following case study is a creative attempt by CM Lawyers to illustrate and educate the issues which may arise in a real court case. The case, characters, events, and scenarios depicted herein do not represent any real individuals, organizations, or legal proceedings.
Example Case: Re Estate of Peter Jones (2018)
In the case of Re Estate of Peter Jones (2018), Peter Jones, a wealthy businessman, passed away suddenly without a trace of his original will. His family had only a photocopy of a will from several years prior. Despite exhaustive searches, the original will could not be located. The court was left to determine whether the photocopy could be accepted for probate.
Due to the absence of the original will, there was a presumption that Peter had destroyed it with the intent to revoke it. However, his family argued that he had simply misplaced it. The legal battle was lengthy and costly, with court fees, legal expenses, and additional administrative costs accumulating to over $150,000. In the end, the court accepted the photocopy for probate, but the estate had already suffered significant financial losses, and family relationships were strained due to the prolonged dispute.
This case highlights the importance of ensuring the safe storage of the original will and the potential financial consequences if it cannot be found.
In cases where a copy of the will exists but the original cannot be found, the court may consider the copy if there is sufficient evidence that the original was not destroyed with the intent to revoke it. Seeking legal advice in such situations is strongly recommended.
FAQs
Can I seek out the solicitor who prepared the Will to find out if I am included as a “beneficiary”?
Yes, you can seek out the solicitor who prepared the will, but the solicitor is under no obligation to confirm whether you are included as a beneficiary. The solicitor is only required to notify the executor of the will upon the testator's death. Once the executor begins administering the estate, they will notify all named beneficiaries.
Who is entitled to inspect or obtain a copy of the Will?
A person who has possession or control of a will of a deceased person, whose estate is to be administered, must allow a person to inspect or have a copy of the will if they are:
- A person named or referred to in the will, whether as a beneficiary or not.
- A person named or referred to in an earlier will as a beneficiary of the deceased person.
- The surviving spouse, de facto partner (whether of the same or the opposite sex), or child of the deceased person.
- A parent or guardian of the deceased person.
- A person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate.
- A parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator if the testator had died intestate.
- A person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person.
- A person committed with the management of the deceased person’s estate under the Trustee and Guardian Act 2009 immediately before the death of the deceased person.
- An attorney under an enduring power of attorney made by the deceased person.
- A person belonging to a class of persons prescribed by the succession regulations.
Note that a copy of the will may be made available to you at your own expense. You can lodge your request to obtain the will with the Probate Registry of the Supreme Court.
How do I know when the Will has been lodged? Is there any way I can find out?
The Probate Registry of the Supreme Court maintains an index that is searchable by the general public. This index is organized by the year and the surname of the will’s testator. It can take weeks or even months for the will to be lodged, so it’s advisable to check the index regularly. Marking a time in your calendar to check once a fortnight might be helpful.
Essential Resources: Government and Non-Profit Organizations
For more information and assistance regarding probate in NSW, the following government and non-profit organizations provide valuable resources:
Government Resources
- NSW Government – Wills, Probate, and Inheritance
URL: https://www.nsw.gov.au/law-and-justice/wills-probate-and-inheritance
Description: Information on wills, probate, and inheritance laws in NSW, including how to apply for probate and what to do if there is no will. - NSW Supreme Court – Probate
URL: https://www.supremecourt.justice.nsw.gov.au/Pages/sco2_probate/probate.aspx
Description: The official site for the Supreme Court of NSW’s probate registry, offering resources on how to apply for probate, required forms, and fees. - NSW Trustee & Guardian
URL: https://www.tag.nsw.gov.au/wills-and-estates
Description: Provides services related to wills, estates, and managing financial affairs, including acting as an executor, trustee, or administrator for deceased estates. - Australian Government – Moneysmart – Managing Someone Else’s Money
URL: https://moneysmart.gov.au/managing-debt/managing-someone-elses-money
Description: Guidance on managing the finances of someone who has died, including dealing with their estate. - Step by Step Guide – Applying for Probate – Legal Aid NSW
URL: https://www.legalaid.nsw.gov.au/publications/factsheets-and-resources/step-by-step-guide-applying-for-probate
Description: A detailed guide from Legal Aid NSW that walks you through the process of applying for probate. - Applying for a Grant of Probate – Supreme Court NSW
URL: https://www.supremecourt.justice.nsw.gov.au/Pages/sco2_probate/sco2_probate_grant/sco2_probate_grant_procedure.aspx
Description: Provides information on the procedures for applying for a grant of probate through the Supreme Court of NSW. - Probate Checklist – Supreme Court NSW
URL: https://www.supremecourt.justice.nsw.gov.au/Documents/Probate%20Checklist.pdf
Description: A checklist provided by the Supreme Court of NSW to ensure all necessary steps and documents are completed for a probate application. - Get a Grant of Probate or Letters of Administration – NSW Government
URL: https://www.nsw.gov.au/topics/wills-and-probate/get-a-grant-of-probate-or-letters-of-administration
Description: Information on how to apply for a grant of probate or letters of administration in NSW. - Online Probate Notices – Supreme Court NSW
URL: https://onlineregistry.lawlink.nsw.gov.au/content/probate-notices
Description: Access the online registry to search for or publish probate notices in NSW. - Complex Probate Proceedings – Supreme Court NSW
URL: https://www.supremecourt.justice.nsw.gov.au/Pages/sco2_probate/sco2_probate_complex.aspx
Description: Information on handling complex probate proceedings, including contested wills and large estates.
Non-Profit Organizations
- The Law Society of New South Wales – Probate and Estate Administration
URL: https://www.lawsociety.com.au/legal-help/probate-estate-administration
Description: Offers information on probate and estate administration, as well as how to find a lawyer to assist with these processes. - Justice Connect – Wills, Estates, and Funerals
URL: https://justiceconnect.org.au/resources/wills-estates-and-funerals/
Description: Provides free resources and legal advice on wills, estates, and funerals, particularly for those who may not afford legal services. - Seniors Rights Service – Wills and Estates
URL: https://seniorsrightsservice.org.au/legal-services/wills-estates/
Description: Offers legal services and advice specifically for seniors in NSW regarding wills and estates. - Australian Centre for Grief and Bereavement
URL: https://www.grief.org.au/
Description: While focused on grief support, this organization also offers resources for those dealing with the legal and emotional aspects of managing a deceased person’s estate.
Conclusion
Locating a will is a critical first step in managing the estate of a deceased loved one. Following these steps can help you find the document and ensure that the deceased's final wishes are honored. If you encounter difficulties, consider seeking legal advice to navigate the complexities of probate and estate administration. The right support can make this challenging time a little easier to bear.
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