Unable To Locate Beneficiaries, What Can You Do?

In his latest Wills and Probate blog, Trainee Solicitor Connor Ball-Wood discusses what to do if you can’t locate beneficiaries….

As a personal representative (PR) one of your responsibilities is to deal with any claims against the deceased’s estate. One way for PRs to protect themselves is by placing a Statutory Advertisement in The London Gazette and the local newspaper – this is better known as a S.27 Trustee Act Notice.

By placing these notices, it demonstrates that an effort has been made to locate creditors and missing beneficiaries before distributing an estate.

S.27 advertisements do not however protect PRs if they are aware of a beneficiary’s entitlement but simply cannot find them. It would still be advisable to place the S.27 notices; however further steps must be taken to safeguard PRs where there are missing beneficiaries.

How To Protect Against Claims

In order to protect themselves from a protentional claim, PRs could:

• Pay the share of the missing beneficiary into Court and distribute the remainder of the estate. This is not an ideal solution as it is dependant on the missing beneficiary being found. If the beneficiary is never found, the money could end up remaining with the Court unclaimed.

• Consider distributing the estate to the known beneficiaries and take an indemnity from them. This option does however pose considerable risks. There is a dependency on the known beneficiaries to honour the indemnity if a missing beneficiary turns up and the PRs have to pay out from their personal resources. Secondly, if a known beneficiary has become bankrupt, how will they be able to pay back any money owed to the missing beneficiary?

• Apply to Court for a Benjamin Order. The order provides the PRs with leave from the Court to distribute the estate upon a particular assumption set out in the order, for example, that the missing beneficiary died prior to the deceased without any direct descendants.

Before an application is made, full enquiries should be made including S.27 Notices; further advertisements in the local papers of where the missing beneficiary was last known or instructing a private investigator. The court may also direct further enquiries it considers necessary.

If the assumption on which the order was made proves to be wrong, then the PRs will be fully protected. The beneficiary would have to seek remedies against the known beneficiaries.

• Obtain insurance cover against the risk of the missing beneficiary appearing. If the PRs were to use this option, it would still be necessary to place similar advertisements and undertake certain investigations.

• Instruct a genealogist who have experience of tracing missing heirs.

• Rely on a declaration under the Presumption of Death Act 2013. The High Court can decide that a missing person is deemed to have died if they are satisfied that the missing person has died or is not known to have been alive for a period of at least 7 years. The Court can also decide when someone is deemed to have died.

In order to mitigate the risk of any claim, all efforts should be made to locate the missing beneficiary before a distribution is made.

For further information on how to locate beneficiaries please contact me, Connor Ball-Wood on 01332 364436 or at c.ball-wood@timms-law.com