What happens if you can’t locate a Will for your loved one who has recently died?

If you are unsure whether your loved one left a Will, or you are having trouble locating it, here’s where to start:

1. Their lawyer or law firm

If the deceased had previously engaged a lawyer for property, Estate planning, or other legal matters, you should first contact that firm to see if a Will is being held for the deceased. It is common for a copy of the Will to be kept at home, with the original held by the law firm.

If you are unsure who the applicable law firm is, you could:

• review any legal correspondence or invoices

• check property settlement documents

• ask close family members.

If the law firm has changed hands, it’s likely that the acquiring law firm retained the previous firm’s safe custody records so you should still contact them to ask the question.

You should also contact all of the local law firms in the region where the person died to ask if they are holding the deceased’s Will.

(Note: There is no requirement for you to instruct the law firm holding the deceased’s Will in an application for probate. Once you have the death certificate and ID showing that you are the Executor of the deceased’s Will, you can retrieve that Will and take it to your law firm of choice, or instruct that it be forwarded to that law firm on your behalf).

2. Common places

Checking the locations where Wills are most commonly kept such as filing cabinets, safes, or locked boxes at home, folders containing personal paperwork or document wallets, bank safe deposit boxes, with accountants or financial advisers, with the Executor (the person appointed to carry out the Will), digital storage, such as email accounts, cloud storage, or password managers.

3. Search probate records

If someone has already started the process of administering the Estate, there may be a record with the Supreme Court of Victoria’s probate office. You can search the Probate Online Advertising System to see if a probate application has been lodged. Once probate is granted, the Will usually becomes part of the public probate record.

Grainger Legal can assist you with searching these records or interpreting the results if necessary.

4. Enquire with the Victorian Wills Register

Some people register the location of their Will (not the Will itself) with the Victorian Wills Register. A search may reveal where the Will is stored, if it has been registered. The registry does not store the Will itself.

What next?

If, after making reasonable enquiries, no Will can be found, the Estate may be considered ‘intestate’ (meaning the person died without a valid Will). In this situation an eligible person (usually a spouse, partner, or close relative) applies to the court for Letters of Administration and the Estate is distributed according to Victoria’s intestacy laws. These laws determine who inherits, generally prioritising the spouse/partner and children.

Grainger Legal can advise you on your eligibility to apply for Letters of Administration and guide you through the process.

It’s important that you document all of your searches and investigations so that if required, you can explain to the Court what searches you have undertaken.

If the wrong Will is used

It is crucial to ensure that the most recent valid Will is used when administering an Estate. Using an outdated or incorrect Will can have serious legal and financial consequences, including:

• distribution of assets contrary to the deceased’s true intentions

• potential legal challenges from beneficiaries or other interested parties, and

• the risk of the grant of probate being revoked or set aside by the Court.

Important: If you locate only a copy of the Will (and not the original), it may still be possible to apply to the Court to have the copy admitted to probate. We can advise you on the evidence required and assist with the application.

How Grainger Legal can help

Every situation is unique. If you would like tailored advice, please contact Grainger Legal and let us know your particular circumstances. We are here to provide clear, practical guidance and support you through every step of the process.

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