An executor’s legal duty is to distribute the estate according to the terms of the Will. This sounds straightforward, but what happens if one of the beneficiaries is unknown or missing?
BEWARE – as the executor, it is ultimately your responsibility to search for missing beneficiaries. If a distribution is made without taking reasonable steps to search for a beneficiary and obtain the necessary protection, and if a successful claim is made, you could be personally liable to pay that beneficiary's share. This could be a very costly mistake!
What to do if you can’t find a beneficiary
As an executor, you must show that you have made reasonable efforts to try and locate the beneficiaries.
- Instruct a genealogy firm
In a situation where someone died without a Will, it can be complicated to establish who the beneficiaries are when there are no immediate relatives. One of the first steps will be constructing a family tree with the use of genealogists.
- Place notices in the newspapers
If the beneficiary is known then it is usually a simpler and less expensive process to locate them. A notice should be placed in the newspapers local to the deceased and where the beneficiary was last known to live.
- Tracing agents
A tracing agent would be able to assist with conducting the necessary investigation to locate a beneficiary.
How do you protect yourself?
If a beneficiary cannot be located, you can proceed with administering the estate BUT should first take steps to ensure you are protected in case any missing beneficiary comes forward in the future to make a claim on the estate.
Alongside seeking legal advice, you have the following options to ensure that you are protected:
- Obtaining an indemnity from the other beneficiaries.
This would mean the estate would be distributed and if the missing beneficiary emerged then the other beneficiaries would need to pay their share of the legacy. This can be risky because as the executor you are still ultimately liable to repay the sum personally if the other beneficiaries are unable or unwilling to pay.
- Obtaining missing beneficiary insurance from a specialist insurer.
This means the estate can be distributed and if the beneficiary subsequently emerges the insurance will pay their entitlement. Any costs for the premium would be paid by the estate.
- Keeping a reserve fund to pay the missing beneficiaries’ share in the event that they emerge within the 12 year limitation period.
This would only generally be feasible for smaller estates, and would mean that your obligations would potentially continue for a number of years.
- Applying to the Court for an Order to determine how the estate is to be distributed (known as a Benjamin Order).
All these options should be considered by weighing up the value of the estate and the risk of a potential claim. Which option is taken would depend on the facts of the case, for example in a very small estate it may be inefficient and disproportionately costly to apply for a Court Order.
In essence, if you are dealing with an estate with missing or unknown beneficiaries – seek legal advice! The consequences of distributing without sufficient protection could be very costly for you.
For further information on the issues raised in this blog, please contact a member of our private client team.