When a loved one has passed away it can be difficult to know what their intentions were when it comes to their estate.
Sometimes loved ones will give specific instructions as to where their last Will is kept, however, unfortunately in most cases death can be sudden and unexpected.
So how do you find their will?
1. Search through the deceased’s personal belongings
Many people will keep a copy of their Will at home. You should ensure that their property is thoroughly checked. Important documents are usually kept safe and they may be locked away or hidden in amongst other paperwork.
2. Ask other family or friends
Sometimes, even the closest of people will not wish to disclose matters such as a Will with those who they are particularly close with as death can be a rather sensitive subject. However, it would not be uncommon for a person to confide in another family member, friend, or even work colleague as to the location of their Will.
3. Deceased will enquiry
There is no public registry of wills in New South Wales, however the NSW Trustee and Guardian often prepare and hold a large database of Wills. A search of their database can be done by contacting their local office, or through their website: http://www.tag.nsw.gov.au/deceased-will-enquiry-form.html
4. Contact a Probate Lawyer
If your enquiries fail to lead you to a Will then you should contact a probate lawyer who will be able to assist you in further searches, or advise you on intestacy.
If all of your searches fail to result in a will being found then the rules of intestacy would apply. Basically intestacy means that someone has died without leaving a valid Will.
In New South Wales if a deceased person leaves a spouse (whether married or de-facto) their spouse would receive the entire estate, even if there were children of that relationship.
However, what if the deceased had children to a previous marriage? The surviving spouse would then receive what is referred to as a ‘statutory legacy’, any personal effects and half of the residue of the estate. The remaining half residue of the estate is then divided between the children.
In the event that there was no surviving spouse or children then the estate would go (in order) to parents, siblings, grandparents, and aunts and uncles (including cousins if an aunt or uncle has predeceased) of the deceased. If there is no one remaining in the family the estate would go to the crown.
In other states the rules of intestacy vary, and you should contact a probate lawyer for further advice.