After someone dies, one of the first things that their loved ones will need to do is locate a last Will and testament. This provides instructions for how an estate should be managed and who is responsible for doing so. However, not everyone has a Will, and it is crucial to be sure of this before you move ahead with administering the estate, because, if a Will turns up later, this can lead to significant legal challenges and financial difficulties.

It is not always straightforward to find a person's Will after their death, so at JMW we can explain where to look for a Will, and what you need to do if you cannot find an original copy.

How to find a Will

It is the role of the deceased’s close friends and family members find out whether or not there is a Will, and locate the document themselves. This is paramount, as the executor named in the Will is the only person who can legally access the deceased's assets and begin the estate administration process. While the deceased's bank may accept a death certificate to close the account, there are also limits on how much you can withdraw without a grant of probate. This means that you will often need to find a Will even for small estates. There are a few approaches you can take to find out if someone has a Will, and several places to start your search:

The deceased's home

A copy of the Will may be stored at home, in a safe, a filing cabinet, or with other important personal documents. It is worth looking for paperwork marked 'Will' or 'Last Will and Testament.' Many people believe that you can only create a legally valid Will by working with a professional Will writer; however, it is possible to write your own, provided that it is signed by two independent witnesses. Any documents bearing these signatures may be legal Wills if they meet certain criteria; as such, you should consider that the Will you are searching for may not look like a typical legal document.

Their solicitor or law firm

If you know which solicitor or law firm the person might have used, you can contact them directly. They may hold a copy of the Will for safekeeping, especially if they helped to draft it. Searching through the deceased's home may locate correspondence with a law firm that you could contact for help. While there is no guarantee that the firm will have a copy of the Will, it is common for solicitors to offer this type of Will storage service.

The National Will Register

The National Will Register is a database for registered Wills, which allows you to search for Wills that have been registered by solicitors and individuals. Anyone can register their Will, so even if the deceased prepared their own Will, it may be possible to find it on the database.

If the Will has been registered with a Will registry, such as the National Will Register, you may find a Will registration certificate instead. While this is not the same as a valid Will, it can indicate that the person who died has a Will and tell you where you can find a copy.

The Probate Registry

After someone dies and probate has been granted, their Will becomes a public document. While this does not help executors, who need to find and verify the will before applying for probate, it could help beneficiaries who are seeking their own copy of the document. You can access copies of any original Will and other important documents online at any stage of the probate process, or access Wills and probate records dating back to 1858, through the government's probate service.

Other options

If you believe that the person made a Will but cannot find it, you can inquire with the Public Trustee in England and Wales, who may be able to help locate unclaimed assets or a Will. Some people store their Wills with their bank, in a safety deposit box, or with an insurance company. You can contact the deceased person’s bank or insurer to check if they hold a copy of the Will - this is something you will need to do anyway when you begin to manage the deceased's assets.

If you still cannot find a missing Will, you can ask the Probate Registry for help. They may be able to guide you on how to proceed if probate has not been granted yet. You may also need to accept that the deceased died without making a Will. This is never an ideal situation, but it may be necessary if the original Will cannot be located.

It is also important to note that, if you are the named executor of the Will, you must identify the latest Will before applying for probate, and use the most up-to-date version. If there have been later revisions that are not reflected in the copy of the Will you have found, this could lead to serious legal consequences, family division and disputes, and the need to undo certain decisions made during the estate administration process.

What should you do if you cannot find a Will?

In cases where there is no Will, the person is said to have died intestate, and the estate must be distributed according to the rules of intestacy. Managing the deceased's estate can be simpler in these cases, but the rules of intestacy can also lead to disputes because of the simple way that they determine inheritance.

If you are a close relative or a representative of the family, you can apply for Letters of Administration to legally manage the deceased person’s estate in cases where there is no Will or named executor. Letters of Administration are the equivalent of probate, but are only issued when there is no Will. Subsequently, the process of managing the estate is largely the same, except that there are limited beneficiaries who can inherit from an intestate estate.

You will need to establish the total value of the deceased’s estate, including assets such as property, savings, investments and personal possessions. Depending on the value of the estate, you may need to pay Inheritance Tax, usually within six months of the person’s death. Once taxes and debts are paid, you must distribute the remaining estate according to the rules of intestacy. Family members inherit from the estate in the following order of priority:

• The surviving spouse/civil partner
• Any children or grandchildren
• Parents
• Siblings (or nieces/nephews if siblings have died)
• Half-siblings (or half-nieces/half-nephews if half-siblings have died)
• Grandparents
• Aunts and uncles (or cousins, if aunts or uncles have died)
• Half-aunts and half-uncles

If no eligible relatives are found, the estate passes to the Crown under the concept of bona vacantia.

It is often best to seek legal advice in these cases if the estate is complex, or if you have any concerns about the validity of a Will or the estate management process. Our probate and estate administration solicitors at JMW can help you to locate missing Wills and avoid disputes while managing the entire estate in line with your legal obligations.

Similarly, where disputes do arise, if someone believes they are entitled to a share of the estate that the intestacy rules do not provide for, such as cohabiting partners or dependents, or if there are concerns about the legitimacy of the Will, for example, our contentious probate experts at JMW can help to provide legal support.