Associate Harriet Edwards outlines the options available to individuals dealing with a deceased person’s estate in the event the beneficiaries of that estate are missing, including advice on how to trace a beneficiary and what to do when they cannot be identified.
When a person dies, their assets (known as their estate) pass to their beneficiaries. However, those beneficiaries can sometimes go missing or be difficult to identify. For example, if a beneficiary has moved address, or it is unclear which relatives have survived.
It may be your job to deal with a deceased person’s estate (i.e., as a personal representative). If so and you have missing or unknown beneficiaries, you will need to consider your options for dealing with them.
Is doing nothing an option?
Yes. However, a personal representative will continue to be responsible for managing a deceased person’s estate. This is potentially quite onerous and time intensive, depending on the size and complexity of the estate.
In addition, if a missing or unknown beneficiary does not exist or is dead, another beneficiary could be entitled to be paid instead. Therefore, waiting may not be a practical option.
How can I trace or identify a beneficiary?
If you have a missing beneficiary, there are professional tracing agencies who may be able to help you track them down, using public records and databases. The more information you have, the greater the chance of success.
If you have unknown beneficiaries, other specialists may be able to assist. Genealogists, for example, can help to research a deceased person’s family history or ancestry, to trace relatives. Private investigators can help to locate missing or unknown persons too.
The extent and sophistication of these tracing services varies, depending on how much you are willing to pay and what information you have already.
If there are unknown beneficiaries, personal representatives can also place statutory notices in newspapers and The Gazette, inviting anyone with a potential claim to contact them by a specified deadline. If this is done correctly and no one comes forward, the law gives personal representatives some protection if they then pay out to other beneficiaries instead. However, this only works for truly unknown beneficiaries; not missing beneficiaries.
What if I cannot trace or identify a beneficiary?
It may be possible to pay a missing or unknown beneficiary’s share of an estate to the beneficiaries you have identified instead. However, this does not release personal representatives from their obligation to pay a missing or unknown beneficiary if they later come forward to claim their share.
If paying out to someone else, personal representatives might consider asking for an indemnity from any adult recipients (children cannot give indemnities). This is broadly a promise from them to pay back the money if necessary and to cover any costs to deal with future claims. However, an indemnity is only as good as the person giving it. If the original recipient has spent the money, there may be no way of getting it back. Personal representatives will be personally liable for the money.
Another option is to buy missing beneficiary insurance. This will usually cover the cost of investigating and defending any future claims. It may also cover the full cost of paying out claims, depending on the insurance policy terms. However, this option can be expensive, depending on the amounts involved.
In high-value cases, it may be appropriate to make a court application either for directions or a ‘Benjamin’ order. This can provide greater protection for personal representatives. However, any court application is likely to be an expensive option as well.
Court directions are essentially instructions from the court, telling the personal representatives what to do. This may be useful, for example, if there are unknown beneficiaries and known beneficiaries wish to be paid without delay.
A ‘Benjamin’ application involves asking for a court’s blessing to do (or omit to do) something. For example, if the personal representatives have exhausted all reasonable searches for missing beneficiaries, the court may give them leave to pay the identified beneficiaries only. If it does this, the personal representatives will be protected against any future claims from those missing beneficiaries, who will have to pursue the other beneficiaries for their inheritance instead.
Finally, in exceptional cases, it may be possible to pay money into court, for a court to deal with instead.
Deciding what is right for you
It is possible (and sometimes necessary) to combine some of these options. Not all options may be suitable or cost effective, depending on your circumstances. Before deciding what is appropriate and to ensure adequate protection against any personal liability, you may wish to seek professional advice.
To prevent any of your beneficiaries missing out, please make sure your Will is up to date and that all beneficiaries can be easily located following your death. We suggest keeping a list of current contact details with your key documents.
The Russell-Cooke private client team can provide guidance and advice on including wills, probate, trusts and tax planning, as well as preparing lasting powers of attorney and making applications to the Court of Protection.
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