We can't find our loved one's will. What happens now?

Published 28 Jun 2016

The passing away of a loved one is a harrowing time for friends and family, particularly when the death is unexpected. An individual's sudden death may mean they have not left a will or discussed the issue with those close to them.

So what happens if you've recently lost a loved one and you're unable to find their will? There is NSW legislation in place that covers how an estate is distributed when the final wishes of the deceased are unknown.

However, before you take those steps, here are some other pieces of advice you may wish to consider first.  

1. Search the deceased's property

Many people keep a copy of their will at their home, so ensure you check all the paperwork located at the property thoroughly. Important documents may be locked in a safe or secreted away with other valuables to keep them secure.

2. Ask friends and family

Even if you were very closed to the deceased, you should check with their friends, relatives and even neighbours or colleagues to see whether they left instructions in case of their death. Estate planning can be a sensitive subject and they may have not wished to burden you with the details.

3. Deceased will enquiry

Some individuals complete a will using the services of NSW Trustee & Guardian. The organisation maintains these documents within a database and you can request a search of your loved one's will via the website. 

4. Contact a probate lawyer

Once you've exhausted your available options and have been unable to find a will, you should get in touch with an experienced probate lawyer to help you take the next steps. They may have other suggestions on how to locate the will or, if there isn't one, advise you on intestacy legislation.

What is intestacy?

When a person is ruled to have died without a will, it is called dying 'intestate'. The deceased's estate is distributed according to a formula among eligible beneficiaries in these circumstances.

If the person who died was married, the surviving spouse receives the entirety of the estate, regardless of whether or not they had children together.

Where the deceased had children from a previous relationship, the spouse receives a statutory legacy, any personal effects and half the estate. The remaining 50 per cent is split between the children. 

In situations where the deceased left no spouse, partner or children, the money would go to their parents, siblings, grandparents, aunts and uncles or cousins in descending order. If no surviving family members can be found, the estate goes to the crown.

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