The job of the executor or administrator of an estate includes distributing assets to the beneficiaries. When a beneficiary cannot be found, it can cause complications.
After someone dies, their estate will be wound up by their personal representative. If they have left a Will, this will name an executor to carry out this job. If they did not leave a Will, then someone who is entitled to inherit from the estate can apply to become the estate administrator.
The personal representative is tasked with collecting in and valuing assets, discharging any debts, preparing estate accounts and distributing the estate to the beneficiaries. If the deceased made a Will, the beneficiaries will be named in this. If there wasn’t a Will, then the estate will be distributed in accordance with the Rules of Intestacy, which specify will inherit.
The personal representative is liable for ensuring that each beneficiary receives what they are due from the estate. If there are any mistakes made, then the personal representative could potentially be held personally liable for any losses that arise.
Finding a missing beneficiary
Every effort should be made to trace beneficiaries. You can make enquiries among the deceased’s friends and relatives and if this does not help, there is the option of instructing a specialist probate tracing company to try and locate missing family members.
You should also place a notice in the local paper nearest to where the deceased last lived. This is known as a section 27 (Trustees Act 1925) notice and will give a potential beneficiary two months in which to make a claim on the estate. While this does not necessarily absolve the personal representative of all personal liability, it can help to show that they have made every effort to trace all beneficiaries.
When a beneficiary cannot be found
Care must be taken in respect of the monies owed to a missing beneficiary to ensure that the administrator or executor does not end up with personal liability for paying this.
The money can be placed in a reserve fund and kept there for the missing beneficiary. The rest of the estate can then also be distributed to any other beneficiaries.
Alternatively, it is possible to purchase an insurance policy that will cover the payout in the event that the missing beneficiary ever comes forward.
All the money can be distributed to the available beneficiaries in return for them signing an indemnity agreeing to return the share that should have gone to the missing beneficiary, should they ever appear. This could be problematic for a personal representative if the beneficiaries do not have sufficient funds if and when a claim is made.
The final option is to apply to the court for an order permitting the estate to be distributed to the known beneficiaries. This is known as a Benjamin Order and is made when the court presumes the beneficiary has died. Evidence of attempts to trace them will need to be provided. Should the beneficiary later appear, the personal representative will be protected from a claim against them by the existence of the order.
As a personal representative, if you are unable to trace a beneficiary, it is recommended that you seek legal advice to ensure that you have done everything possible to protect yourself from liability.
If you are dealing with the administration of an estate and you would like to speak to one of our team ring us on 01634 353 658 or email us at rob@pembrokewillwriters.com.