Genealogy is the study of lineages in families. Your family tree. Missing, unknown entitled beneficiaries or missing executors are situations which can delay administration of a deceased’s estate.
This page lists some resources where enquiries might be made to begin resolving difficulties of this nature. Alternatively it may be easier to engage a specialist genealogist who has done this type of work before, to undertake the search instead.
Genealogy is about tracing a person’s relatives, their family tree by researching family history to find out who their forebears and descendants are.
Situations delaying the administration of a deceased estate
Administration of a deceased estate may be delayed where:
- The executor cannot be found.
- One or more named beneficiaries cannot be found. This might be for a variety of reasons. For example when a child becomes estranged from their parents and contact has been lost.
- A gift under the will is to a class of persons, it is unclear who comes within that class and so entitled to share in the gift. Has anyone been left out, are all potential beneficiaries alive, and what is their current address? How can they be identified with certainty – and to the probate court’s satisfaction?
- A beneficiary has died but no substitute was named, and there are no other immediate relatives known, who will be entitled to inherit the deceased’s assets?
- Some potential beneficiaries may be living overseas, relatives with whom contact has been lost – who are they and are they alive?
- A deceased died intestate, or left a home-made (informal) will of some form, was born overseas, divorced then migrated to Australia. Whether any subsequent relationships were formed and were any children born of that relationship who may claim?
- An unmarried deceased migrated to Australia, died intestate leaving no relatives here, whether there were any de facto relationships here or in the country of birth, any children, and whether there are other relatives overseas?
Executor and administrator obligations
Among the legal obligations on an executor as part of their duties, it the obligation to identify and locate all the beneficiaries entitled under the will, or if no will, according to the laws of intestacy (in which case it is the job of the administrator). Executors are also under an obligation to identify all the assets of a deceased person, and as soon as possible.
The Australasian Association of Genealogists and Records Agents
They provide listings of genealogists and record agents by state and territory who offer family history and genealogy services as well as general record searching: legal obligations on an executor.
Legal genealogists Worthington Clark at https://www.worthingtonclark.com/ provide genealogy and asset research services including beneficiary and executor location research, including relatives entitled under the laws on intestacy.
The Society of Australian Genealogists – Sydney
The oldest family history society in Australia is the Society of Australian Genealogists in Sydney, at https://www.sag.org.au/. They state that they provide research services on request for tracing family history using their records for members and non-members. The service for non-members attracts a fee after a free time period.
Alternatively the Society provides a list of genealogists across Australia who offer genealogy searching services for a fee. To see the current list visit https://www.sag.org.au/
Genealogy information – Government Registries of Births, Deaths, Marriages, Name Changes and Relationships.
Each State and Territory maintains a public registry for the recording of life events occurring in that jurisdiction, namely births, deaths, marriages, and name changes. A document is issued to certify the event. In some jurisdictions registers of relationships are now kept, for example in South Australia, Victoria (a domestic relationship), Queensland (civil partnership) and Tasmania.
Researching family history – your genealogy
Most Registries provide an online searching service for those researching their family history. Searching may or may not be free, depending on what information, how far back in time and what life event certificate is sought, as records are restricted to certain periods of time.
There are strict requirements to be met around accessing records to protect privacy and concerns about identity theft.
If the information is to be used as evidence in court proceedings, it must be an official record of that registry, so its preferable to seek legal advice. See links below to some state and territory registries.
Divorce, adoption, change of gender, overseas death
Adoption, divorce and changes to gender may be recorded as well. For Australians who die overseas, a death certificate would ordinarily be issued by the relevant authority at the place of death.
New South Wales sources for genealogy tracing
The New South Wales Registry of Births, Deaths and Marriages is at https://www.nsw.gov.au/births-deaths-marriages.
Records which may be searched are restricted. for births, over 100 years, deaths over 30 years and marriages over 50 years. If you don’t want certified copies of certificates, you can use the services of family history transcription agents.
Did the deceased have children?
Legal personal representatives may search for whether or not the deceased had children.
In New South Wales the law (s 50 of the Births, Deaths and Marriages Registration Act 1995, below), provides for an executor, administrator or trustee of a deceased estate to conduct a search of the register as to whether or not the deceased is recorded as being a parent of any children in NSW, and if so their names.
“Issue of a certificate relating to children of deceased person, section 50 of the Births, Deaths and Marriages Registration Act 1995 (NSW).“
State/territory registries of births, deaths and marriages
In Victoria, the Registry of Births, Deaths and Marriages is at https://www.bdm.vic.gov.au/.
The South Australian Births, Deaths and Marriages Registry is at https://www.cbs.sa.gov.au/births-deaths-marriages/ where you can find proof of a birth death or marriage in South Australia.
The Queensland Births, Deaths,Marriages and Divorces Registry is at https://www.qld.gov.au/law/births-deaths-marriages-and-divorces.
The Tasmanian Registry of Births, Deaths and Marriages is at https://www.justice.tas.gov.au/bdm. The Registry records changes of name. Also they allow for the registration of significant relationships. Information is also available on researching your family tree with an online search including a link to the Tasmanian Archive and Heritage Office here.
The Western Australian Registry of Births, Deaths and Marriages https://www.bdm.justice.wa.gov.au/default.aspx
Northern Territory
In the Northern Territory, the Births, Deaths and Marriages is at https://nt.gov.au/law/bdm, the contact details of locations of the Registry here. In the Northern Territory it is possible to change your name legally every 12 months. This needs to be kept in mind if searching for a beneficiary, that there may be multiple names involved.
Historical records may be searched. For the requirements to search the Registry’s records go here.
In the Australian Capital Territory, births, deaths and marriages resources can be found on the Access Canberra site. Sources for researching family history in the ACT are available here.
Ryerson Index
Another source are the death notices using the Ryerson Index https://www.ryersonindex.org/. This is an Australian index of death notices which have appeared in Australian newspapers. It was established in New South Wales. Searching is free, at least at the time of writing.
With the closure of many newspapers Ryerson began indexing notices from Funeral Directors’ websites in 2020.
Cemetery records
Searching cemetery records may assist. The National Library of Australia has an information page on cemetery records https://www.nla.gov.au/research-guides/cemetery-records.
Libraries and State Records for genealogical records
Other places to research family history are public libraries, and the state and territory government records archives, some sites below:
National Library of Australia, Family History, https://www.nla.gov.au/research-guides/family-history.
National Archive of Australia, Family History at https://www.naa.gov.au/collection/family-history/
State Records of South Australia, now State Archives, https://www.archives.sa.gov.au/, family history records.
The State Archives and Records Authority of New South Wales (NSW State Archives and Records) https://www.records.nsw.gov.au/. The Authority has records on Family History, Probate and Wills. Probate packets contain the original will can be searched online with other probate documents including codicils.
Genealogy researchers overseas
Finders International, London, United Kingdom, https://www.findersinternational.co.uk/. They trace heirs to estates and assets world-wide. Accordingly they offer a wide range of services to both the public and professionals.
Family tree to record your genealogy
Some people know who they want to leave their property to and the full names and other details of their intended beneficiaries.
Others may wish to leave something to be divided among a particular group of people, certain relatives for example.
Knowing one’s family tree is important and can be helpful to executors, especially those not familiar with the family, to compile a family tree record. A family tree template form to get started is available for download here.
Lawyers sometimes seek independent verification from genealogist researchers. This is to verify the accuracy of a family tree, so as to reduce the potential for mistakes and any omissions.
When all searches fail – what can be done?
Despite thorough investigation it can happen that a beneficiary cannot be found. The next step is to apply to the Probate Court of the Supreme Court for a special order. Specialist legal advice and assistance is required. This order is for dealing with the problem of a missing beneficiary so as to finalise a deceased estate is called a Benjamin Order.
B Stead
BHS Legal
15 October 2018, updated June 2023
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