What Happens When a Will's Beneficiary Cannot Be Located?

Note: The following article is part of our Complimentary Articles Series, designed to provide additional insights and detailed information on specific topics within estate planning.

Alongside this article, we suggest exploring our pillar articles for a comprehensive understanding of general legal issues related to estate planning.

• Can I Challenge or Contest a Will?
• I Think a Will is Invalid. What Do I Do?
• What Are the Rules of Intestacy?
• How Should I Sign My Will?
• Can I Change My Will?
• How Can I Revoke a Will?

INTRODUCTION

Trying to locate a Beneficiary can present a number of challenges for any Executor trying to distribute an Estate. Sometimes, it seems like a Beneficiary has just disappeared off the face of the planet, and you might be tempted to give up.

However, if faced with this scenario, remember it's an Executor's fiduciary duty to demonstrate they've exhausted every possible avenue in the search for a Beneficiary. Failure to do so could result in legal and financial consequences, putting your personal liability at risk.

This article outlines the most important steps you should take as an Executor to ensure you've covered every angle in your search. 

DEMONSTRATE DILIGENCE

As Executor, you should ensure that no stone is left unturned in your search. You should use every conceivable method in an attempt to find the "missing" Beneficiary.

The usual search angles would typically consist of the following:

• Working through friends and family.
• Reaching out on social media platforms.
• Posting a notice under Section 27 of the Trustee Act in the local newspapers of the Beneficiary's last known address.
• Hiring a reputable genealogist or professional tracing agent.

RULE OF THUMB: TIE YOUR SEARCH TO THE VALUE OF THE LEGACY

All things considered, your efforts to find a missing individual remain the same, irrespective of the size of the Beneficiary's legacy.

However, you can reasonably balance your search effort against the legacy's value, questioning the time and resources you're investing for smaller versus larger legacies.

OTHER POST-SEARCH OPTIONS

If you can prove you've made all reasonable effort to locate the missing Beneficiary and still can't locate the individual, you can proceed with distributing the Estate. However, to protect yourself in the future in case the missing Beneficiary resurfaces, you should implement the following protective measures:

• Keep a Reserve Fund: Set aside the legacy for the statutory limitation period of 12 years. If the person does not come forward within this window of time, you are free to distribute their share of the legacy among the remaining Beneficiaries.

• Distribute With Consent: You may also distribute the missing person's legacy among the other Beneficiaries on the condition that they consent to pay back the missing person's portion should they ever reappear. However, given that the Beneficiaries will likely spend or allocate the money, the Executor will still be liable to repay the sum personally. Therefore, we do not recommend this option.

• Indemnity Insurance: In this scenario, you obtain beneficiary insurance from a specialist insurer, after which you distribute the Estate to the remaining Beneficiaries. If the missing person suddenly reappears, the insurance will pay their entitlement. The Estate would pay for any administration costs.

• Benjamin Order: You can ask the Court to declare the missing person deceased, thereby allowing the Estate to be distributed as though they had passed away. However, this procedure is time-consuming, complicated, and expensive – certainly not worth its while in the case of a small Estate.

PREVENTATIVE MEASURES – ENSURE TRANSPARENCY OF CONTACT DETAILS

A vital function of the role of the Executor is not just ensuring you carry out your fiduciary duties, but also protecting yourself legally and financially. In this context, a potential missing Beneficiary throws up all kinds of potential challenges for you further down the road.

Therefore, as you familiarise yourself with this role and prepare yourself for distributing the Estate at some point in the future, you may wish to share detailed contact info for all relevant parties involved in the Will to simplify your duties and make life easier for yourself later. Maintain regular contact with them to ensure their contact details are updated.

Need to know more?

If you have any questions about your Will or Estate, feel free to contact us for an initial free no-obligation call, where we'll bring you through some options to secure peace of mind for you and your loved ones.

Book a callback and we'd be happy to arrange a no-cost, no-obligation discussion with you to lay out the options available.

Alternatively, call us on 01233 659 796.

Or reach out to us here.