When we’re talking about how to find a Will, one can search for a Will that has been already provided as part of an application for probate. However, due to confidentiality, courts cannot inform whether the Will is the most current version or not.
Probate is a court procedure that administers a deceased’s estate. This process involves legalising a Will, paying off debts, and distributing assets to beneficiaries. The court retains the original copy of the Will only if the deceased and their executor has applied for a grant of probate.
A grant of probate confirms the authority of the executor in administering the estate of someone who has died. There are no legal requirements in applying for probate in every estate. Once a Will is filed in court, it becomes a public document and any person can view the Will for a fee.
In this article, we’ll discuss questions like how to find a Will and who is eligible to do so.
Who Is Eligible To Find A Will?
When finding a Will, a solicitor may make the necessary enquiries to check if the person who is locating the Will is eligible to do so. An executor is the only person entitled to see the Will and read its contents. The executor may decide to send a copy of the Will to family members or close friends and allow them to read its contents, upon their request.
Strictly speaking, an executor is not legally required to do so. No other person, including the beneficiary, has a legal right to see a copy of a Will. Each case is unique and therefore making the choice as to whether the deceased shares their Will with family members or close friends is up to them.
Before probate, Section 54 of the Succession Act 2006 states that any person who possesses the Will must provide copies of it to the following people:
1. Persons named in the Will
2. Persons or beneficiaries named in any previous Wills
3. The spouse and child of the deceased
4. The parents of the deceased
5. Persons who would have been entitled to a share of the estate had the deceased died without a Will
6. Persons who may have a claim against the deceased’s estate
7. Persons who were entrusted with the management of the deceased’s estate before the Will-maker’s death
8. Attorneys acting under an enduring power of attorney made by the deceased
How To Get A Copy Of A Will
In the process of administering estates, executors will notify beneficiaries, but this doesn’t have to happen unless the Will has been granted probate. Once a grant of probate has been made, the Will becomes available as a public record, however, a Will lodged with the court on the application for probate renders it invalid as a public record.
This process can take a long time so a person may have to wait until they can get a copy of a Will. If the Will is available as a public record, the best way to find a Will is to get the probate court file number from the executor. One can also access the file number by phone, in person, or online.
Click here for more information on how to find a Will in different states in Australia.
What If I Can’t Find A Will
A lot of family members and other people tend to not find a Will of a relative or a friend who has passed away. These people often believe that there is a central ‘Wills Registry’ for a solicitor’s easy access. Unfortunately, there is no such thing, and finding a lost Will can become costly in terms of both time and finances.
Most banks and insurance companies require a certified copy of a Will and death certificate before they release any funds. Depending on the amount or value of assets, these companies often require a Grant of Probate or Letters of Administration.
Diligence in searching for a Will is needed by the court as they will require solid and credible evidence in locating a Will. Here are some pointers if one is unable to find a Will at the deceased’s last known residence and by researching their possessions and personal documents:
- Contacting the person’s bank to see if they held a safety deposit box or if they have documents in custody
- Contacting online portals (depending on one’s state) that can allow them to search for Wills.
- Check the deceased’s personal devices if they have electronic copies of their Will and any evidence of their testamentary intentions for their beneficiaries.
If a Will cannot be found, but there is evidence to confirm it, then it is safe to presume that the Will has been intentionally destroyed by the Will-maker in order for it to be revoked. Here are things to consider in these types of cases:
- Change of relationships between the deceased and any person that were intended to be beneficiaries
- If the deceased had contact with someone regarding their Will
- If the deceased was able to destroy their Will
Case study example:
Brett Whitley, a famous Sydney artist who had hand-written his Will and had two independent witnesses with him as he hid it at his house. The artist also discussed the terms in his Will with his daughter and some of his friends on several occasions.
After his death, his Will was nowhere to be found, but an application was brought to Court and was reconstructed based on the pieces of evidence found about the terms of the existing Will. With this being said, the Court was able to reconstruct Brett Whitely’s missing Will.
Find A Will With Legal Advice
We take tedious efforts when we’re looking to find a will and locate beneficiaries. We encourage our clients and others to seek legal advice from JB Solicitors. Our lawyers who specialise in Wills and Estate planning are experts in the field and can handle all related legal matters when finding a Will.
Our fixed-fee prices also aid our clients by giving them a clear idea of legal costs. Head over to our YouTube channel for more information about various legal matters.
Looking to find a Will? Reach out to us today