Searching for Missing Beneficiaries during Probate
29 August 2018
By Probate Solicitor, Mahua Jana
When dealing with an Estate it may be that someone who is entitled to benefit from the Estate (known as a Beneficiary) cannot easily be located. This can cause significant delays in the Probate process and complex (sometimes costly) steps may need to be taken to track a missing Beneficiary down.
There are two potential scenarios that will be explored in this article. Firstly the Beneficiary is identified but their whereabouts are unknown. The other situation, which is more complex, is that the Beneficiary needs to be identified and their whereabouts located. This is usually the case when the deceased person did not leave a Will and as such the Rules of Intestacy will apply. As a result it is necessary to locate, sometimes, unknown relatives to ensure they receive their due entitlement.
Locating a Known Beneficiary
If the Beneficiary's name is known, for example if they are specifically mentioned in the Will, then it is usually a simpler and less expensive process to locate them. The Personal Representative (Executor / Administrator) of the Estate must show that they have made reasonable efforts to try and locate them.
These efforts could be as simple as placing a notice in the newspapers. Prices vary from paper to paper and it is best to speak to your Probate specialist before placing the notice. If this result does not prove fruitful then the Personal Representative will need to look at other means of searching for the Beneficiary. The most common approach is to use a Tracing Agency who have various tools at their disposal to conduct the necessary investigation. Naturally the more information that is known about the Beneficiary, the higher the likelihood that they will be traced.
Locating an Unknown Beneficiary
Trying to find the whereabouts of a Beneficiary whose name or even existence may not be known might seem impossible. This is however relatively common in Estates where the deceased has not left a Will.
As a brief example, if someone died without leaving a Will, having never been married or had children then the Rules of Intestacy will come into play. These rules will determine who should be responsible for dealing with the Estate (the Personal Representative) and who would qualify as a Beneficiary.
Once the Personal Representative has been identified and appointed, they will need to identify who the Beneficiaries of the Estate are and then locate them.
It can be complicated to establish who the Beneficiaries are when there are no immediate relatives. As such it is important you speak to your Probate specialist who will be able to assist you further in identifying the Beneficiaries.
One of the first steps in locating missing Beneficiaries will be constructing a family tree. It is not always easy to construct a family tree and as such it is common to use experts in this scenario. Using a Tracing Agent can help reduce anxiety and time when locating unknown family members.
Remember that it is not just a case of finding the Beneficiaries but also ensuring that they are indeed entitled to benefit from the Estate. This can sometimes be done by looking at birth certificates, marriage certificates etc.
Beneficiaries that Cannot Be Found
The best case scenario is that all the Beneficiaries can be found and the Personal Representative can proceed with administering the Estate.
However, it could be that a Beneficiary simply cannot be located, and all reasonable means of identifying and searching for them have not been able to provide a result. In this scenario, the Personal Representative can still proceed with administering the Estate but must take steps to ensure they are protected should a Beneficiary come forward in the future to make a successful claim on the Estate.
The Personal Representative has the following options to ensure they are protected:
- Obtaining specific insurance to protect against a claim by a missing Beneficiary
- Applying to the Court for an Order to determine how the Estate is to be distributed
- Making a payment to the Court under S.63 Trustee Act 1925.
All these options should be considered by weighing up the value of the Estate and the risk of a potential claim. In a very small Estate it may be inefficient and disproportionately costly to apply for a Court Order.
Personal Representative is Financially Liable
Ultimately it is the responsibility of the Personal Representative to search for missing Beneficiaries and as such they should take legal advice from a Probate specialist before making any distributions (payments) from the Estate.
If a distribution is made without taking reasonable steps to search for a Beneficiary and obtain the necessary protection; and if a successful claim is made, the Personal Representative could be personally liable to pay that Beneficiary's share. If this is a high value Estate then this would be a costly mistake indeed!
In a previous Probate case, we were able to locate and verify a total of 19 Beneficiaries entitled to a share of an Estate, with the assistance of our tracing agents. See Probate Search for Missing Beneficiaries Case Study.
Co-op Legal Services is the largest provider of Probate and Estate Administration services in England and Wales, trusted to deal with over £1.3 billion in Estates annually.