Loved one passed away, what to do with their estate 

Where a person passes way, they may leave behind a Will in which they state, among other things, what their beneficiaries receive and who they appoint as the executor.  The executor is responsible for administering the estate, which generally involves the executor gathering all the assets, paying any liabilities that the deceased still owes, and then distributing the remainder to the beneficiaries pursuant to the terms of the Will.  In most cases, to do this, the executor needs to obtain a grant of probate from the Court, which is done by way of an application with the original Will and death certificate. 

So, after the death of a loved one, it is very important for the executor (usually the partner, child, or a close friend of the deceased) to obtain the original Will.  If the original Will cannot be found, feel free to check out our article on Missing Wills. 

First things first, where can you find a Will?

In an ideal world, a Will maker (also known as a ‘testator’) will tell their loved ones and proposed executor where they have stored their important documents, particularly their Will, so these can be easily found in case of an emergency or upon their death.  However, this does not always happen, and can lead to the Will becoming lost, usually because it is misplaced during testator’s lifetime, or the executor / family members cannot locate it. 

Nevertheless, if the family members are unaware if the deceased even had a Will, the first step in trying to locate it is thoroughly searching the deceased’s home.  If this does not render results, there are a number of further steps that you can take to try to determine if find it or determine if one exists. 

Finding the Original Will 

If the deceased had legal representatives and / or accountants during their lifetime, the next of kin can contact these parties to confirm if they have the original Will, as it is common practice for law firms and accountants to hold original documents for their clients.  At the very least, a solicitor may be able to confirm if they drafted a Will for the deceased and whether they hold a copy.  If no luck there, the next of kin could also contact the deceased’s family and friends, their bank, the Queensland Law Society, and the Public Trustee regarding the existence of an original Will.  Ads can also be placed in the classified section of the local newspapers where the deceased lived asking for information about the Will.  Legal representatives can also be engaged to assist with this search. 

A next of kin in this situation will probably be wondering, “how far do I have to go to figure out if there was a Will, if all my searching cannot find it?”.  At the end of the day, at law, the next of kin must take reasonable steps to try to locate the original Will or determine whether a Will existed.  However, if their best endeavours are used (by undertaking all or most of the steps above) and no Will can be found, then what happens next?  

If the Will cannot be found, the deceased will be considered at law to have died intestate, which means that they died without a Will.  In this case (and is the case, when the next of kin / family know that the deceased did not have a Will), the next of kin can make an application for a grant of letters of administration to be appointed as the administrator of the estate – this is the same as probate, but just the term used when there is not a Will.  If the application is successful, the next of kin will be appointed as the administrator of an estate and will be given the same powers as an executor. 

Summary 

• When someone dies, it is usually necessary for the original Will to be found, so that the estate can be administered.  
• The deceased’s next of kin must take reasonable steps to try to find the original Will or determine if one exists.
• If there is no Will, then the next of kin can apply to become the administrator of the estate, so that they can administer the deceased estate.

Our Services

Our team of lawyers provide clear and timely advice and services on all areas of Wills and Estates law Australia-wide. Given that the legislative requirements for the construction and content of Wills, their execution, probate and administration and more changes from jurisdiction to jurisdiction, it is highly beneficial to engage legal experts who are well-versed in these rules and regulations across all areas of Australia.

Contact one of our offices today to discuss any legal issues you may have from preparing Wills to challenging them.