The death of a loved one is already a stressful time. Discovering the original will is lost only compounds the anxiety.
This is what you should do:-
- Thoroughly search for the missing will. Read more: how to find a will;
- Is there a copy? A photocopy of a will can be admitted to probate;
- Can’t find the Will? Here’s what happens when someone dies without a will “intestate”.
Searching for a Missing Will
There are several places you should search for a lost will:
- Among the deceased’s papers (in their home / work);
- Check with the bank for any safe custody or safe deposit boxes;
- Check with the Public Trustee in your state;
- In some states, the Supreme Court maintains a registry of wills.
These are the most common places you should search for a lost will. Read more about how to find a will.
Lost Wills and Probate
If you believe a will existed but you can’t find it, all hope is not lost as the Court can still admit a will to probate.
There are five essential matters to be proven before a lost will can be admitted to probate:
- that a will actually existed;
- that the will revoked all previous wills;
- it must be proven the will was not destroyed by the will-maker;
- there must be evidence of the terms of the will; and
- evidence that the will was properly executed.
A photocopy of a missing will goes a long way as it should help to answer element 1, 2, 4 and 5 above.
There is a presumption that a will was destroyed by the will maker with the intention that it no longer be their last will if the original cannot be found. This presumption can be rebutted depending on the circumstances. For example, if it can be shown the will maker did not have possession of the will (as it was held in safe custody by a bank or solicitor), then there may have been no opportunity for the will-maker to destroy it with the intention of revoking it.
Lost the original will? Contact a probate lawyer for a free consultation or call us today on 07 3073 2405.
No Will?
So what happens if you can’t find any will? The assets of a person who dies without a will in Australia are distributed in accordance with the intestacy rules.
There are two important roles which need to be identified:
- who has priority to be administrator? That’s the person charged with responsibility for collecting assets and distributing them to beneficiaries;
- who are the beneficiaries?
In many cases the administrator and the beneficiaries will be the same. In most states the order of priority is: spouse (if any), a child (or children), grandchildren, parents, brothers and sisters etc.
Read more: What happens if you die without a will in Queensland
