What to Do When You Can’t Find a Will in NSW
Probate and Estate Administration
If you cannot find the Will, the estate is not treated as though there was never one. Search the places Wills are normally kept, in order. If a signed Will once existed and only a copy survives, the Supreme Court can still accept the copy.
An estate is everything the person owned when they died. Most of the searching takes two to six weeks, and you can do all of it yourself. What you should not do alone is the court application that follows. What you must not do at all is pay anyone out of the estate while the Will is still missing.
Where to search, in order
There is no central register of Wills in New South Wales. So the search is a run of separate enquiries. Work through them and write down what each one tells you.
The deceased’s papers. Look for the Will, and for anything that points to it. A letter from a solicitor, an old bill, a business card or a storage receipt is often the real find.
Their solicitor. Then every solicitor they ever used, even for something unrelated like buying a house. Many firms store Wills for clients at no charge and never contact them again.
NSW Trustee and Guardian. They store Wills in a service called Will Safe. You can lodge a deceased Will enquiry online to ask whether they hold one. You will need the death certificate.
The bank. Banks have stored documents for customers for generations. Ask about any sealed packet or safe deposit box in the deceased’s name.
The Supreme Court. A person can deposit their Will with the Court’s Registrar while they are alive. Few people do it, so it is often skipped. Check anyway.
A law firm that has closed. When a solicitor dies or stops practising in New South Wales, their clients’ Wills can be deposited with the Supreme Court. If the firm has gone, ask the Court. Ask the Law Society of New South Wales where the files went.
The old Wills Register. From 2002 until 28 March 2014 the NSW Registry of Births, Deaths and Marriages ran a Wills Register. The service has closed. The Registry still holds those records, so check if the Will was made in those years.
If none of that works, a solicitor can write to firms in the area where the person lived. A solicitor can also post a missing Will notice that circulates to other solicitors. Those notices reach a limited audience, so they add to the other searches rather than replace them.
How long the search takes
Allow two to six weeks. Most of that is waiting for other people to answer you. The papers and the bank are quick. NSW Trustee and Guardian, the Court and other law firms take longer.
While you wait, do not clear out the house. Families throw away the decisive piece of paper in the first fortnight, usually while trying to be helpful.
Why you must not pay anyone out yet
An executor is the person named in the Will to deal with the estate. An administrator does the same job when there is no Will, or when nobody named is able to act. If that is you, this section matters more than the search does.
You can be left personally out of pocket if you pay money out too early. The same is true if you pay it out knowing that someone may make a claim. Two steps protect you.
Do not distribute the estate until at least six months after the death.
Publish a notice of intended distribution before you do. That is a public notice saying you intend to distribute the estate after a stated date, which must be at least 30 days away.
If you do both, and you have no notice of a claim when you pay out, you are protected for that distribution.
Certain family members and dependants can ask the Court for a share of an estate. This is called a family provision claim. It must normally be made within 12 months of the death. A late claim needs the Court’s permission, and that is not given as a matter of course. So the 12 months matters to you as well as to them.
Can you run the search yourself?
The searches, yes. Every step above is letter writing and phone calls. You do not need a solicitor for any of it.
Some estates need no court application at all. If the assets are modest or jointly owned, or the bank will release the money on a death certificate, you may not need to go to Court. Ask before you spend money on an application you do not need.
The court application is different. Probate is the Supreme Court’s confirmation that a Will is valid and that you are the person entitled to deal with the estate. Lawyers call that confirmation a grant. Where the original Will is missing, the application is not the standard one. It needs sworn written evidence prepared for the purpose, and it is not sensible to attempt alone.
If the original Will cannot be found
The law starts from an uncomfortable assumption. If the Will was last in the deceased’s own keeping and cannot be found, the Court’s starting point is that they destroyed it on purpose, to cancel it. Lawyers call cancelling a Will revoking it.
That is a starting point, not a verdict. Think of it as a door that is shut but not locked. Evidence opens it.
The Court can grant probate on a copy of the Will. To get there, you show the Court four things.
That a properly signed Will once existed, and what it said.
What searches you made, and that they were thorough.
What the deceased said and did about the Will, and whether that fits with the people named in it.
That nothing suggests they wanted to cancel it.
You also promise the Court that you will prove the original if it turns up later. A grant made on a copy says so on its face, and it holds good only until the original is proved.
A rough note is a different question
Sometimes there was never a properly signed Will. A document can still count. A letter, a note, a diary entry or a file on a phone can be accepted as an informal Will, if the Court is satisfied the person meant it to be their Will.
That is a separate application, and it is not the same as proving a lost Will. The evidence you need is different. If you are holding a handwritten note and nothing else, say so early, because it changes the whole application.
If no Will ever existed
Then the estate is shared out under a fixed order set by the Succession Act 2006. Dying without a Will is called dying intestate. A spouse or de facto partner comes first, then the children, then parents, then wider family.
A Will can also be partly ineffective. If it does not deal with everything the person owned, the rest is shared out under that same fixed order.
That order takes no account of what the person actually wanted. In a blended family the result is often a long way from it. That is why the search is worth doing properly.
Who is allowed to see the Will
Nobody has a right to see a Will while the person is still alive. Not the executor, and not a beneficiary, meaning someone who gets something under the Will.
After the death the rules change. Whoever holds the Will must let a range of people inspect it or take a copy, at their own cost. That includes the following people.
Anyone named or referred to in the Will, whether they get anything or not.
Anyone named as a beneficiary in an earlier Will.
The surviving spouse or de facto partner.
The children, grandchildren and any other descendants.
A parent or guardian of the deceased.
Anyone who would inherit if there were no Will.
Anyone who has or may have a claim against the estate, including a creditor.
Anyone who held an enduring power of attorney, meaning written authority to manage the deceased’s money and property.
Anyone who was managing the deceased’s affairs under a tribunal or court order.
This right is wider than it looks. It covers a copy of a Will, a Will that has been cancelled, and a document that only claims to be a Will. So a copy of the missing Will is within it, and you can ask for one.
Once probate has been granted, anyone at all can obtain a copy of the Will from the Supreme Court on paying the fee.
What it costs to prove a lost Will
The reasonable costs of administering an estate, including a solicitor’s costs of obtaining the grant, are ordinarily paid out of the estate and not by the executor personally. That is the general position, and for most executors it is the answer.
Here is the other half of it. An executor who acts unreasonably can be ordered to pay costs personally.
For a straightforward first grant, a solicitor’s costs are fixed by regulation and worked out on the disclosed value of the estate’s assets. The firm does not set that figure. The law does. GST may be added.
That scale covers the grant work only. A missing Will changes the job. Sorting the papers, running the searches, advice on an informal Will, and working out whether an asset even forms part of the estate all sit outside the scale and are charged separately. Anyone who tells you the grant fee is set by law, and stops there, is telling you half the story.
What to do now
Stop. Do not clear the house, empty the filing cabinet or throw out any paper.
Photograph anything that looks like a Will, including the envelope and any handwriting on it.
Write down who told you a Will existed, when they told you, and what they said it contained.
Keep the devices. The phone, the laptop and any diary. A note on a device can matter.
Record every search. Work through the seven searches above and note the date and the result of each one, because the Court will want that record.
Pay out nothing. Do not pay out a cent, and do not promise anyone anything.
Get advice in time. Well before 12 months from the date of death has passed.
How we can help
The first conversation is free.
We can run the searches with you, tell you whether you need a grant at all, and prepare the application if the original Will cannot be found. We also act for beneficiaries who have been told there is no Will and do not believe it.
Call us on 1800 571 113.
We act for executors and beneficiaries, and we also act for people bringing claims against estates. So before we advise you, we check that we are not already acting for someone on the other side. Please call rather than sending details of the estate through the website.
Disclaimer
This article is general information about the law of New South Wales as at 21 September 2026. It is not legal advice, and reading it does not create a solicitor and client relationship with Dormer Stanhope. It does not take your circumstances into account, and the law in other States and Territories differs. The law also changes. If you cannot find the Will of someone who has died, speak to a solicitor about your own position.
