Missing Wills and Court Proceedures

Date: Dec 02, 2009
Document Type: Newsletter

Most of us realise that it is a smart step to have an appropriate will in place, but its important to make sure that your next of kin knows where the will is kept. If a will cannot be located, the estate will be dealt with as an intestate estate and your assets will be distributed according to the law and not necessarily as you would have wanted. The beneficiaries will also ultimately bear higher expenses.

What happens if a will cannot be found? Usually there will have been a thorough search of the home and enquiries made to the deceased’s bank to see if it is in safe custody, but often further detective work is required. Checking cheque butts or bank statements to see if there has been a payment to a lawyer may provide a clue, and--as many people make a will through the Public Trustee--that office should be contacted.

When Letters of Administration (the equivalent of Probate when there is no will) are applied for, the Supreme Court will seek evidence of the enquiries made. The Court provides a facility for depositing wills which must be searched. Another recourse is the Law Society Journal which provides an advertising service for enquiring whether any solicitor knows of the whereabouts of a will.

If all the efforts produce no sign of a will, then Letters of Administration must be applied for. The Administrator - or Administrators - must normally be beneficiaries, or guardians of any beneficiaries under the age of eighteen. The consent of other beneficiaries is required if not all are applying, otherwise the court will have to specially approve the appointment. Having a will available just makes things easier, quicker and cheaper.

How can one minimise the chances of a will not being found? In many cases, people leave their will with their solicitor in safe custody. It is sensible to keep a copy at home, with a note saying where the original document is held, and the executor should be told also. If the executor is not the next of kin, the next of kin should be told who the executor is. This does not mean that an executor or next of kin has to be given a copy of the will if the testator wants to keep that private.

The lesson - make sure you have a will, and that the relevant people know where it is stored.

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