How can I apply for probate if I cannot find a will?

How can I apply for probate if I cannot find a will?

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  • Vando
    Vando March 26, 2025 at 11:23 pm

    My mother passed away recently and I cannot find her will. I need to get access to her bank account and her accommodation bond at her nursing home. What can I do please? Thanks in advance.

    MV
    MV March 26, 2025 at 11:33 pm

    Hi Vando.
    If you cannot find a will, then rather than make an application for probate you would make an application to the Supreme Court for Letters of Administration. It is a very similar process, but a little more complex. If there is no will then the intestacy laws (dying without a will) apply and those laws determine how the estate is to be distributed. The persons who are entitled to share in the estate are typically, but not always, the persons who can apply to become the administrators of the estate. The intestacy laws vary from state to state, so do a search on the “succession act” in your state or territory.
    Let me know which state or territory you are in and I can provide some further guidance.
    Kind regards,
    MV

    • This reply was modified 1 year, 6 months ago by MV.

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    Vando
    Vando April 15, 2025 at 1:01 am

    Thanks MV.
    I am in NSW. Any suggestion would be great on what I need to do. Also, how long does the process take please? There is also an investment property in Victoria BTW.
    Thanks
    Vando

    MV
    MV April 24, 2025 at 12:52 am

    Dear Vando,
    I link to the Succession Act 2006 NSW is below:

    https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-2006-080#ch.1

    In NSW the rules about how the estate is to be distributed can be found in Chapter4 Intestacy, but in short:
    1. Spouse / domestic partner
    2. Children or grandchildren of a deceased child
    3. Parents
    4. Brothers and sisters
    5. Grandparents
    6. Aunts and uncles
    7. The State of NSW
    You can make the application if you are entitled to receive a benefit in the estate. If there are other persons equal to you or above you in the hierarchy, you will need their written consent.
    The process must be started within 6 months of the date of death and takes about 3 weeks top prepare the paperwork and once submitted, the probate Registry takes 4 to 6 weeks to process the application.
    I presume that the banks accounts are in NSW and the nursing home is in NSW? Then the application should be made to the Supreme Court on New South Wales.

    As there is real estate in Victoria (which falls under Victorian legislation, then once you receive the Grant of Letters of Administration in NSW, you will need to apply to the Supreme Court of Victoria to “reseal” the NSW grant. It is a similar process to the first application. It will need to be done before you can transfer the title for the real estate in Victoria.

    Kind regards,
    MV

    • This reply was modified 1 year, 6 months ago by MV.

    AussieLegal Moderator

    Vando
    Vando April 24, 2025 at 12:54 am

    Hi MV.

    The nursing home has given me some paperwork showing the details of the accommodation bond, but the bank will not give me exact information. How can I fill in the paperwork if I do not know the exact amounts?

    Vando

    MV
    MV April 24, 2025 at 12:56 am

    Hi Vando.
    All you can do is put in the numbers that you have from the nursing home and old bank statements.
    The bank cannot give you more information for privacy reasons until you are made the Administrator of the estate at which time you become the legal personal representative of the estate. An estimate is usually very acceptable. If there are new assets that you find after the grant has been issued, then all you need to do is send the Court an affidavit with an updated inventory of property. Nothing to worry about, really.
    Once you are the administrator you are legally responsible for administering the estate according to the state laws.

    By the way, when you send the nursing home a copy of the Grant of Letters of Administration, they will issue a cheque or transfer the money to an account in the name of the deceased, typically “The estate of NAME.” They will not release the money directly to you. So do not close the bank accounts until all the transfers have been made.

    Kind regards,
    MV

    AussieLegal Moderator

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