Looking for a will
It’s sad enough to lose a loved one. If you are unsure if they had a will or where it was located, it can compound your grief in this difficult time.
We all know how important it is to write a will, however less than half the population have one. There is no central register for wills. It is up to each individual to write their will, keep it current and safely store it. If your loved one passed away without a will or if you are unable to find it then they are said to have died ‘intestate’. We explain intestacy a little further on.
The best strategy is to ask your loved ones if they have a current will while they are still alive. If this is no longer possible then search the deceased’s files and property for their will or a copy. A will is a serious document it should be stored accordingly.
Tips on locating a will;
- Check the public trustee in the state or territory where the deceased resided or previously resided. The office of the public trustee may provide low cost or free will storage regardless of who wrote the will.
- Check with the state or territory Supreme Court. Some may offer free will storage.
- Check with the deceased’s solicitor. If the solicitor created the will they may have the original. Even if the solicitor has retired, there will be a legal firm that has taken on their files. If you are unsure if your loved one had a solicitor go though their files and bank records to search for any legal practices.
- Check with a solicitor, financial planner or accountant for a file copy of the will. While courts require the original will to grant probate, there are special circumstances where a file copy can be accepted.
- Check for a safe deposit box. It is commonly advised wills should not be stored at home.
- Check the deceased’s computer and smart phone. They may have a digital copy. Even though this may not meet the strict requirements for a will, if the document was intended to act as a will then it can be admitted for probate in special circumstances.
If you simply can’t locate the will consider if the deceased ever made one. A will maker needs to appoint an executor. The executor is the person responsible for managing the estate after they die. The will maker usually discusses the role of executor with the person they are nominating when drafting the will. Consider who this person might be; a relative, trusted family friend or legal professional. They may be aware if a will was made. This may confirm if you should keep searching. Note however, if a will was made but can’t be located then the court presumes that the deceased destroyed the will with the intention that it should not be valid. This presumption can be rebutted but evidence of the will needs to exist. The family should work with a legal professional as this can be a complex submission to court.
If the family is confident a will exists they have several months to locate it. Ideally a deceased estate should be settled within 12 months of the death. Some states require an application for probate within 6 months of death. If more than 6 months is needed to search for the will you should consider engaging a legal professional. You may be able to apply for probate after 6 months if you have a sound reason.
When no will exists
If no one is aware of the will ever existing and no evidence of it can be found, then the person has died ‘intestate’. Each Australian state and territory have legislation on how the deceased’s assets are to be distributed on intestacy. The senior next of kin usually inherits the entire estate, starting with the spouse. In this instance, the court would ask the spouse to become the ‘administrator’ to manage the deceased estate. The administrator needs to identify all assets, pay off all debts, sell assets if necessary then take the balance of the estate for themselves. If there is no spouse, the entire estate would fall to the children. If no children, then parents.