Is it too late to seek details of late father’s will?

Children hit a brick wall when seeking details of late father’s will.

Is it too late to seek will info?

When Lorraine’s ex-husband died, his children never saw the will and were never given adequate advice by the solicitor. She wants to know if it is now too late to pursue information.

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Q. Lorraine
My ex-husband passed away in 2012. My two children have never seen the will and don’t know who the executor is. They got in touch with a solicitor about a year or two ago. They didn’t understand they probably had to do it sooner.

The solicitor said he was getting a court order but never got back to them. The secretary told them the deceased’s brother was the executor but that wouldn’t be so as they had nothing to do with each other. Then she said that he didn’t leave a will.

My kids have given up, but I would like to know if they are entitled to see the will, as they understood from their father that they would be entitled to the estate after his wife dies. What can they do? Things can change without their knowledge as they are not in contact with their father’s wife any more.

A. You should encourage your children to see a solicitor who specialises in probate and estate administration, as there are legal procedures that can be taken to secure a copy of the will. Be warned, however, that it may already be too late.

This answer is general information only, not specific legal advice. You should not rely on it without specific advice from an expert who can review all the relevant documents and circumstances.

Rod Cunich is a lawyer with more than 30 years’ experience in estate planning. If you have a question for Rod, email it to newsletters@yourlifechoices.com.au.

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    Disclaimer: This information has been provided by Rod Cunich and should be considered general in nature. Seek legal advice before acting on this information.





    COMMENTS

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    Triss
    6th Nov 2018
    10:32am
    I thought if a will has been probated it becomes public record and a copy can be be applied for at any time.
    Blossom
    6th Nov 2018
    8:51pm
    If the assets are below a certain value no probate is payable in SA.
    I don't know about other states.
    Joanbsails
    6th Nov 2018
    10:49am
    So did I. You have to pay $76 or something.
    Rosret
    6th Nov 2018
    12:10pm
    No will and a stepmother - no inheritance.
    It's a cruel fact of life that if a spouse remarries later in life that the biological children lose their right of inheritance. It really seems wrong to me. The law needs an upgrade.
    A second marriage needs a prenup.
    Karl Marx
    6th Nov 2018
    1:14pm
    ALL wills can be contested. Children from previous marriages are still entitled to contest the will as are siblings etc. By law anyone can contest a will. Even if the children are in the will but believe they are treated unfairly they can still contest the will.
    Any contesting of wills MUST be done as early as possible so always seek legal advice in this particular field.
    Prenups are not recognised in Australia to my knowledge, again, seek expert legal advice in this field. Even written settlement agreements on separation between both parties are not legally standing in the family courts unless ratified by the courts.
    Blossom
    6th Nov 2018
    8:59pm
    Any assets would have been distributed by now, probably within 12 - 18 months unless there was a retirement village involved, then it may have taken longer. I don't know if any claim can be made now. It would probably cost far more than they would receive if they succeeded. Unless the rules have changed only certain solicitors or lawyers can help you contest a will.
    Blossom
    6th Nov 2018
    8:48pm
    I live in SA. Unless the rules have changed since mid 2009, if you inherit a set amount of money you don't get a copy of the will. I don't know if you can get one on request.
    Paddington
    6th Nov 2018
    11:58pm
    My mother died and years later my Dad remarried. They were together nearly 20 years before my father died. I could not have cared less about the money but my brother fought tooth and nail until the estate was given to our sisters and brother. Determination apparently wins the day.