A Will is not always easily found, making it more difficult and stressful for family members after the death of a loved one. A valid Will usually appoints an executor which gives them the immediate rights to the administration of the deceased’s estate and the assets owned by the deceased. An executor must make sure any debts are paid and any remaining assets are distributed according to the deceased’s wishes located in the Will, or according to the laws of intestacy if there is no Will. If there is a Will, the executor will need to apply for a Grant of Probate from the court which ensures the Will is valid and that they have the court’s permission to carry out their duties as an executor. For this to occur, the executor must know the location of the Will or where to find it.
Where are Wills normally kept?
Unfortunately, there is not a central Will register. A Will can be kept with the nominated executor or can usually be found with the deceased’s lawyer or chosen trustee company. For the latter, the executor will need to contact the lawyer or trustee company to let them know the person has died and they will usually need to provide evidence of death to obtain a copy of the original Will. There are also online privately run Will registries that charge ongoing fees to store an electronic copy of the Will and an address as to where a hardcopy can be found. There is also the Victorian Will and Powers of Attorney Registry which is a free service for anyone to provide information about where they keep their Will.
Filing your Will with the Supreme Court
A good option is to file your valid Will with the Supreme Court of Victoria in its Wills register through the Probate Office. The Supreme Court then maintains the records of Wills that have been deposited through the court, through an online database that can be searched.
What happens if your executor doesn’t know you have died?
If your executor isn’t a close family member or friend, they may not know you have died. Furthermore, complications can arise if close family members to the deceased are unaware that a Will exists or who the executor is. They may then either ignorantly or fraudulently apply for a grant of letters of administration upon intestacy, which occurs when someone dies without a Will. These issues can be resolved if the Will has been filed with the Supreme Court because when the person applies for the grant of letters of administration, the court will search the Wills register. If a valid Will is found, the grant of letters of administration will be prevented and the Will will be provided to the nominated executor.
Nicola Maltman – Law Clerk – Matthies Lawyers
Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.