When someone close to you dies it can be a difficult time, which can only be made worse when you don’t know if they had a will or where it is. This means it’s important that your loved ones, particularly the executor of your will, are made aware of its existence and location.

But if a loved one dies and you don’t know whether or not they have a will or you need to locate the original, there are steps you can take.

Finding the original will

Usually if a will is prepared by a lawyer, their office will hold the original in safe custody. If a will was made, usually the details of the lawyer responsible will be on the document and you can contact their office. If that office is no longer in practice, then the Law Society of the state where the deceased resided should be able to advise where that office’s safe custody is now held.

If you’re the executor of the will and you have the death certificate and your personal identification, you should be able to obtain the original will from the lawyer’s office.

When there is no will

Even if you know your loved one did not have a will, it is still necessary to conduct the appropriate searches. This is particularly important if an application to the Supreme Court is required to administer the deceased’s estate. The usual places searches are made include:

  • The deceased’s personal papers held at home or work;
  • Any solicitor the deceased may have dealt with;
  • The financial institutions of the deceased where a safety deposit box may hold a will;
  • The Trustee and Guardian in the state where the deceased resided.
  • Some Supreme Courts have a will register.

When a will cannot be located

If you can’t locate the will, the laws of intestacy govern who is entitled to the deceased’s estate. In New South Wales, these laws are contained in Chapter 4 of the Succession Act 2006.

In many cases an application to the Supreme Court is required to enable the deceased’s estate to be administered. Usually, the person with the greatest entitlement to the estate, under the intestacy laws, will make an application to the Supreme Court to be appointed the administrator of the estate.

If only a copy of a signed will can be located

If only a signed copy of the deceased’s will can be located, then an application to the Supreme Court can be made by the Executor appointed under that will for Letters of Administration with the will annexed. If a grant is made by the Court, then distribution of the estate will be made in accordance with the deceased’s will.

In light of the above, it is extremely important to have a will and to ensure your loved ones and more importantly your executor is aware that you have a will and where that will is located. It will enable your estate to be administered in a timelier and cost-effective manner.

If you have any questions as a result of this article or we can assist you with the preparation of a will, please contact us.

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