Losing a loved one is an emotionally challenging time, and managing legal matters after their passing can add further stress. One of the first steps in administering an estate is finding a Will in NSW and locating the deceased person’s original Last Will and Testament.
The people closest to the deceased are often responsible for managing these important estate administration tasks. A Will outlines how the deceased wanted their assets distributed and may also include instructions about the care of children, pets, and other personal matters.
However, finding a Will in NSW is not always straightforward. The original document may be stored in a variety of locations, and locating it can become a significant challenge for executors and family members responsible for administering the estate.
What Makes a Will Valid in NSW?
In New South Wales, a valid Will usually needs to meet certain formal requirements under the Succession Act 2006 (NSW).
These requirements generally include:
- The Will must be in writing;
- The testator (the person making the Will) must sign the document; and
- At least two competent witnesses must sign the Will.
If a document does not satisfy these formal requirements, it may be considered an “informal Will”.
For example, a document may fail to meet the requirements of a formal Will if it does not include the correct signatures or witnessing requirements.
However, in some circumstances, the Supreme Court of NSW may accept an informal Will for probate if the court is satisfied that the document reflects the deceased’s intentions.
Where Can You Find a Will?
The first step in locating a Will is to search the deceased person’s home and personal records.
Important documents are often stored in secure locations, such as:
- Safes;
- Filing cabinets;
- Desk drawers;
- Storage boxes; or
- Other places where important paperwork was kept.
The Will may also be held outside the home. Common locations include:
| Location | How to Check |
|---|---|
| Law firm | Contact the lawyer who prepared the Will, as they may hold the original document in safe custody. |
| Bank or storage facility | Contact the institution to determine whether the deceased used a safety deposit box or storage service. |
| NSW Trustee and Guardian | Check whether the deceased stored their Will with this organisation. |
| Supreme Court probate records | Search for probate applications if another person may have already located and lodged the Will. |
You can find further information about Will storage services through NSW Trustee and Guardian.
Contacting the Deceased’s Lawyer
The deceased’s lawyer is often one of the most useful places to contact when searching for a Will.
Many lawyers store original Wills for their clients in safe custody. They may also have records confirming whether they prepared a Will or where the original document is located.
If you know which lawyer prepared the Will, contacting their office should be one of the first steps in your search.
Searching Probate Records
If you cannot locate the Will, you may be able to search probate records through the Supreme Court of NSW.
A probate search can help identify whether someone has already lodged the Will with the court or received a grant of probate.
This may be useful where another family member, executor, or friend located the Will and started administering the estate.
Do You Need the Original Will?
In New South Wales, lawyers often prepare multiple copies of a Will. The testator usually receives a copy for their records, while the original remains stored securely.
Family members often find a copy of the Will after the person dies. However, the original document usually carries greater legal importance during the probate process.
The original Will helps the court confirm the document’s authenticity and determine the deceased’s testamentary wishes.
What Happens If the Original Will Cannot Be Found?
Sometimes, the original Will cannot be located after a person dies.
In these circumstances, the court may accept a copy of the Will in certain situations. However, additional evidence may be required to prove that the copy accurately reflects the deceased’s intentions.
This evidence may include:
- Statements from witnesses;
- Evidence confirming the copy’s authenticity;
- Evidence showing the deceased did not intentionally destroy the original Will; and
- Evidence that the copy reflects the deceased’s final wishes.
Using a copy of a Will can make the probate process more complicated. It may also increase the risk of delays, disputes, or challenges from beneficiaries or interested parties.
How Should You Store an Original Will?
To reduce future difficulties, people should store their original Will in a safe and accessible location.
Common storage options include:
- With a trusted solicitor or estate planning lawyer;
- With the executor of the Will;
- In a secure home location; or
- In a safety deposit box.
The executor and close family members should know where to find the original document when it is needed.
When Should You Seek Legal Advice?
If you cannot locate an original Will or are unsure how to administer an estate, you should seek advice from an experienced estate lawyer.
A lawyer can help you understand your options, explain your legal obligations, and assist with probate or estate administration issues.
Frequently Asked Questions About Finding a Will
Where is the most common place to find a Will?
Wills are commonly stored with the lawyer who prepared them, at the deceased’s home, in a safe, or with a secure document storage provider.
Can probate proceed without the original Will?
In some circumstances, the court may accept a copy of the Will. However, additional evidence may be required to prove its authenticity and the deceased’s intentions.
What happens if no Will can be found?
If a Will cannot be located, the estate may need to be administered according to intestacy laws. Legal advice can help determine the appropriate next steps.
Who can search for a deceased person’s Will?
The executor, beneficiaries, or people responsible for administering the estate may need to search for the Will. Access to certain records may depend on the circumstances.
Finding a Will in NSW: When to Seek Legal Assistance
Locating an original Will requires patience, organisation, and careful investigation.
Searching the deceased’s personal records, contacting their lawyer, checking storage locations, and reviewing probate records can help locate the document.
Finding the original Will is important because it helps ensure the deceased’s wishes are followed and allows the estate administration process to proceed correctly.
This information is general only and you should obtain professional advice relevant to your circumstances.
If you or someone you know wants more information or needs help or advice, please contact us on (02) 9818 2888 or email [email protected].