HHG Legal Group, Associate, Amy Dunlop, outlines the possible course of action you can take when beneficiaries are missing or unidentified.
Missing or unidentified beneficiaries? You may need a Benjamin Order
The duties of an executor or administrator (legal personal representative) can sometimes be exhausting and when you finally have the estate in a position ready for distribution, this job can get even more difficult if you cannot find or identify a beneficiary.
A Benjamin Order is a court order that can be applied for in cases where there are missing or unidentified beneficiaries to an estate, allowing the estate to be distributed to the known beneficiaries, without the personal representative fearing they may be held personally liable if a missing beneficiary later comes forward.
When will a Benjamin Order be necessary?
People disappear and lose communication with family for a myriad of reasons, maybe as a result of trauma or conflict, or perhaps for reasons unknown to any person. A beneficiary could have moved overseas, changed their name, be ignoring attempts for contact, or have died. The quest can be particularly difficult if that person has not been seen or heard from for a significant length of time.
With the rise of migration and people dying intestate (being that they made no will), locating potentially entitled persons can be cumbersome. Trying to figure out if a person who would be entitled to distribution of an estate exists, when the personal representative has little to no information on family structure, can be very difficult.
It may be impossible to say with any certainty if a person even exists or if they do, whether they are actually still alive at the time a personal representative needs to contact them to distribute a share of an estate.
Enquiries to Locate a Beneficiary
It is an executor's job to ensure a gift bequeathed to a beneficiary under a will is provided to them. If the person named in the will, or a person entitled on intestacy, is missing or unknown to the executor/administrator, the executor/administrator must undertake reasonable enquiries to locate the beneficiary.
These enquires can involve;
- speaking with the lawyer who drafted the will
- making enquiries with family members and those close to the deceased
- reviewing the deceased's paperwork for clues of the missing beneficiary's whereabouts
- undertaking searches with public record agencies such as electoral rolls, Landgate, Registry of Births Deaths and Marriages
- placing advertisements in newspapers
- undertaking searches with public record agencies such as electoral rolls, Landgate, Registry of Births Deaths and Marriages
- contacting government agencies
- utilising social media platforms or
- engaging private investigators
If at the end of the searches the executor/administrator could not find the beneficiary or entitled person, they may apply to the Court for direction to distribute the estate to the known beneficiaries.
Application to the Court
If the Court is satisfied that the personal representative has fulfilled their duty and made adequate attempts to locate the missing beneficiary or entitled person based on the information to hand, and the Court is also satisfied:
- that no reasonable further enquiries could be made which would improve the knowledge of the missing beneficiary's whereabouts;
- it is probable that the beneficiary under a will or persons entitled on intestacy have been ascertained; and
- undertaking further searches would be an unnecessary cost and time commitment,
the Court will grant a Benjamin Order to the personal representative.
It is a practical impossibility to prove a missing beneficiary is in fact alive and if every reasonable step has been taken to trace the person and those have been unfruitful, there has to come a time when a personal representative can move forward with estate administration and distribute to the known beneficiaries.
Effect of a Benjamin Order
Once a Benjamin Order is granted, the executor can distribute the estate in accordance with the Court's directions and know they will not be held personally liable for any loss suffered by the missing beneficiary if they later come forward.
A Benjamin Order relieves the personal representative of liability should the hypothesis on which they are permitted to distribute the estate turns out to be wrong.
If a beneficiary or entitled person who was thought to have disappeared or predeceased subsequently appears, or the children of a predeceased person come forward, they will not be entitled to bring a claim against the personal representative.
Reach out if you are having difficulty finding a Beneficiary
Being an executor or administrator of an estate can be challenging in the best of circumstances, without the added stress of missing or unidentifiable beneficiaries. If you are an executor or administrator in this position and require assistance, please talk to one of our estate team lawyers for guidance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.