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7-05-2019

Solicitor David Toms examines the ways in which a person can deal with missing or reluctant beneficiaries.

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The reality of missing or reluctant beneficiaries.

One might assume that all beneficiaries of a will or intestacy would be very keen to claim their inheritance and that we all secretly live in hope of receiving a windfall from a long lost uncle who was last heard of many years ago in the Australian Outback.

The reality for many personal representatives or solicitors administering an estate is that it can be a challenge locating and successfully distributing an estate to all the entitled beneficiaries.

Personal representatives are expected to make reasonable efforts to determine the whereabouts of any beneficiaries. They are also advised to place statutory notices in the local press and The London Gazette to protect themselves from any beneficiary claims of which they have not had notice. Insurance can also be obtained to protect against claims from beneficiaries that are unknown to the personal representatives at the time of distribution of the estate. However, advertisement does not protect personal representatives against known beneficiaries who are missing.

Where beneficiaries are known but missing and the deceased left a will, the number of beneficiaries is likely to be smaller and they may be traceable using the information contained in the will. Other beneficiaries or family members may know the whereabouts of the missing beneficiary and failing that, tracing agencies or genealogists may be able to locate them. In intestate estates, the number of beneficiaries may be particularly large and in many cases neither knew the deceased nor have any contact with other family members. In those situations a genealogist may be needed to ascertain and trace the entitled beneficiaries.

If beneficiaries are known about but cannot be traced despite the reasonable efforts of the personal representatives, then they have several options available to them:-

The personal representatives can obtain missing beneficiary insurance for known beneficiaries, paying a premium to insure against the missing beneficiary appearing at a later stage to claim their inheritance. They can then distribute the estate to the remaining heirs, safe in the knowledge the insurer will meet the costs of any later claim. Whether this insurance is available will depend on the insurer’s assessment of the likelihood of the missing beneficiary reappearing and may not always be available for a reasonable premium.

They can retain the funds due to the missing beneficiary for 12 years, after which a beneficiary is barred from making a claim for their share. However, this option has its problems in that neither the personal representative (nor a solicitor) is likely to want to retain the funds for this period of time and also the estate cannot be finalised. Additionally, if the missing beneficiary fails to come forward after 12 years, the personal representatives may be faced with a further distribution of the funds to other beneficiaries, who may have died themselves or lost contact during the intervening period.

A further option is to distribute to the located beneficiaries and obtain indemnities from them whereby they agree to repay part of their entitlement should the missing beneficiary ever resurface. Again this is potentially problematic, as despite giving an indemnity, the other heirs may have spent the funds and may be unable to repay them when requested.

A safer alternative to this is to obtain an indemnity from a large registered charity and to pay the funds due to the missing beneficiary to them. 

A more expensive and time-consuming option is for the personal representatives to apply to court for a Benjamin Order (after the case of Re Benjamin (1902) 1 CH 723) where the court may make an assumption that the missing beneficiary has predeceased and allows the estate to be distributed on that basis. An application can also be made to pay funds into the Court Funds Office.

Occasionally, personal representatives are aware of the identity of a beneficiary and his whereabouts, but that beneficiary will not respond to any form of contact, whether to accept of formally disclaim their entitlement to a share in an estate. This is more likely in intestacy cases where many beneficiaries are told that they are entitled to an inheritance from a distant relative that they have never met or were even aware existed.

It is often unclear why these beneficiaries do not respond, but it may be that they do not feel comfortable accepting an inheritance from someone they do not know or more often, they believe they are being targeted in a fraud or scam and cannot be reassured.

In these circumstances, insurers are unlikely to provide any cover as the beneficiary is both known about and has been located.

Often the only practical solution in these cases is to send the funds to a charity in exchange for an indemnity or to pay the funds into court.

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