Real Time Web Analytics

Friday, September 3, 2010

What does an executor do if a beneficiary can't be found?


Let's say an executor has probated the deceased's Will and has begun to distribute the specific gifts made in the Will. One of the beneficiaries, let's call her Sharon, is supposed to receive the sum of $5,000 and her grandmother's jewelry. The executor can't find Sharon and nobody seems to know where she is. What should an executor do? What happens to the money and the jewelry?


The executor should turn first to the Will. Does it say anything about what to do in this situation? If Sharon hadn't been seen in years, her grandmother might have anticipated this would happen. Knowing that Sharon might not be found, her grandmother might have put a time limit on looking for her, and named someone else to receive the property.


Assuming that the Will doesn't say anything like that, the executor must make "reasonable efforts" to find Sharon. The specific methods used by executors will obviously vary depending on the circumstances but some of the most common methods are:


  • putting a notice in the paper in an area where Sharon once lived

  • asking around and putting up notices in places where Sharon might be expected to show up, such as church, union hall, etc.

  • contacting former employers, boyfriends, teachers, co-workers etc

  • checking social media like Facebook, MySpace etc

If there are any costs incurred in taking these steps, such as the cost of a newspaper notice, that can be taken out of Sharon's money.


If Sharon still can't be found within a reasonable time (a year is pretty standard), the executor can choose to put Sharon's property aside and hold it for her. In a case like this, the jewelry should be kept in a safe deposit box with a copy of the Will and an explanatory note showing that this is the jewelry Sharon was supposed to inherit.


An executor might also choose to deliver Sharon's inheritance to the Office of the Public Trustee, which is empowered to hold unclaimed property in this situation. Depending on the situation, the Public Trustee might publish a notice to Sharon, or might bring an application to have her pronounced dead, or might do neither of those things. They will hold the property for quite a long time (in Alberta, it's 10 years). Sharon can claim her inheritance from them at any time if she shows up. If not, the Public Trustee might eventually sell the jewelry and transfer the whole inheritance into its general revenue.


The advantage to the executor of delivering the inheritance to the Public Trustee is that the executor can close off the estate and not have this one thing hanging on forever. The executor can reassure the beneficiaries and the family that the executor hasn't just kept Sharon's inheritance for him/herself. It is up to each individual executor to decide what is best in each situation.

9 comments:

  1. I've been looking at these issues for awhile now... and it sounds like people with large claims or a great deal of missing inheritance assets need to be checking out some of the big time probate research investigation services or heir locator services... at least they appear to have deep legal connections and wide forensic genealogical access. From what I can see, seasoned probate investigation services, established probate and estate research firms, have all the access in the world to all the right databases and records... to help prevent fraudulent inheritance claims, plus provide estate attorneys and their executor clients the ability to quickly start connecting legitimate heirs to unclaimed inheritance assets. I'm not even sure that if it was me locating missing heirs, or locating a missing estate, or unclaimed inheritance assets, that I might need forensic genealogy to be finding missing heirs or unknown heirs... that is to say, missing heirs to unclaimed estates. I do know however that I certainly don't know enough about probate research investigation, like, for example, the American Research Bureau, the www.arb.com firm or maybe the www.heirfinder.com firm in Salt Lake City, Utah, where all the genealogical records are... I don't understand the basics for locating missing heirs and beneficiaries, to be involved with locating and verifying "rightful heirs", or verifying beneficiaries to an estate. I would surely need one of those seasoned heir location services, or get a referral from an attorney for a solid probate & estate research company that did case evaluations for trust and estate lawyers - the type of firm I could have some confidence in.

    ReplyDelete
    Replies
    1. Apparently you are American, since the references in your post are American. Firms that find heirs may be used a lot in your country, but in 30 years of wills practice, I've never used one, nor have I ever had a client ask about one. They really are not widely used in Canada, probably for the simple reason that we have far fewer people here.

      Lynne

      Delete
    2. Thank you Lynne. I am surprised to hear that, since heir finders and unclaimed estate finders are used widely in Ireland and England.

      Delete
    3. I have no doubt that it's an industry that will grow here as well. I really do think it's just that we have a much smaller population.

      Lynne

      Delete
  2. Shouldn't the first thing an executor do is check with the estate attorney?

    ReplyDelete
    Replies
    1. There is no estate lawyer until the executor hires one. When you say "estate attorney" do you mean the lawyer who drafted the will? If so, then yes it's a good idea to check with that lawyer to see whether he or she has any information about the beneficiaries.

      Lynne

      Delete
  3. My question is related but distinct. What happens when one of several beneficiaries cannot be located? Does that delay distribution to the others? In my case, the final tax returns have been filed but the Trustee has been indicating that he can't find one of the beneficiaries. He hasn't stated explicitly that he won't distribute the residue due to the others because of this but the only other hold up that I can imagine is that he is waiting for confirmation from CRA that the final return is accepted. Any advice?

    ReplyDelete
    Replies
    1. Actually, my original post covered this exact situation. If the trustee wants to close off the estate, he can contact the Office of the Public Trustee to see if they will accept the missing beneficiary's share. They may also have some ideas for finding him or her.

      I expect that the delay is actually caused by the wait for the CRA Clearance Certificate. That generally takes a good 6 months after the trustee applies for it, and he can't even apply until the tax returns are filed.

      Lynne

      Delete
  4. What happens if a beneficiary disappears after they received their inheritance but before they signed a form ? I'm in NS..have an odd situation where I have the releases signed, accounting not required forms signed but the court is forcing me to get a release for specific gifts although there are no specific gifts !! They will not accept the Accounting Not Required application without these other forms (form 36A in NS)...

    ReplyDelete

You might also like

Related Posts with Thumbnails