What Happens When a Beneficiary Can’t Be Found?

The smooth administration of an estate hinges on identifying and distributing assets to rightful beneficiaries. But what happens when a beneficiary can’t be found? In England and Wales, there’s a legal framework for handling situations like this. This ensures a fair outcome for missing beneficiaries and the estate.

Due Diligence is Key When Tracing Beneficiaries

The executor or administrator of the estate (depending on whether there’s a Will) holds the primary responsibility for locating beneficiaries. They must make every reasonable effort, including:

1. Consulting the Will or Intestacy Rules

Wills often provide clues about the beneficiary’s whereabouts, such as past addresses or names of relatives. If there’s no Will (intestacy), the rules dictate inheritance based on family relationships.

2. Searching Public Records

Birth certificates, marriage licenses, electoral rolls, and social media platforms can offer valuable leads. Placing a ‘Statutory Advertisement’ in local media close to the beneficiary’s last known residence is also beneficial. Also known as Section 27 Notice, any potential creditor or beneficiary is given two months to make a claim on the estate. This doesn’t eliminate the risk of a claim but offers some protection.

3. Engaging Professional Tracers

Specialised firms with expertise in locating missing persons can be invaluable, especially for complex cases.

4. Presumption of Death

If, despite these efforts, the beneficiary remains untraced for a significant period, the executor/administrator can seek a court order known as a Benjamin Order. This order presumes the missing beneficiary is deceased, allowing the estate to be distributed to the remaining beneficiaries.

Benjamin Order

1. Threshold for Application

There’s no fixed timeframe for applying. Courts consider the beneficiary’s age, last known contact, and evidence suggesting they might be alive.

2. Protection for the Executor or Administrator

Once granted, the order shields the executor or administrator from future claims by the missing beneficiary, who is presumed dead.

3. Beneficiary’s Right to Claim

Should the missing beneficiary resurface later, they can still claim their rightful share from the remaining beneficiaries who received the inheritance under the Benjamin Order.

Alternatives to a Benjamin Order

1. Holding Funds in Trust

If the executor or administrator is unsure about what has happened to a beneficiary, they can set up a trust to hold the inheritance for a set period. This provides a safety net for uncertain situations and allows time for the beneficiary to come forward.

2. Paying Money into Court

Under section 63 of the Trustee Act 1925, it’s possible to pay money into court to be later claimed by missing beneficiaries. The court will typically require evidence that you’ve made reasonable efforts to find the missing beneficiary (adverts, genealogist, etc). However, court fees are applicable, and this option might only be practical for smaller estates, as it can delay its finalisation.

3. Insurance

Specialised missing beneficiary insurance can provide some protection. If the missing beneficiary resurfaces later, the insurance company reimburses the estate for the claimed inheritance.

Our Advice

Navigating the legalities of unlocated beneficiaries can be complex. Engaging a professional, experienced probate specialist can undoubtedly help. They will guide the executors or administrators through the appropriate steps, including assessing the evidence, preparing a Benjamin Order application, or representing the beneficiaries in court.

We have many years of experience advising clients about a wide range of Wills, trusts and probate matters. For more information or advice, please get in touch. We’re here to help.

Please note that all views, comments or opinions expressed are for information only and do not constitute and should not be interpreted as being comprehensive or as giving legal advice. No one should seek to rely or act upon, or refrain from acting upon, the views, comments or opinions expressed herein without first obtaining specialist, professional or independent advice. While every effort has been made to ensure accuracy, Curtis Parkinson cannot be held liable for any errors, omissions or inaccuracies.

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