MISSING BENEFICIARIES

It can sometimes be difficult to locate a beneficiary. They may be distance relatives you have not heard from for years. It might be possible to find information to assist with this in the deceased’s papers or amongst other persons connected to the deceased and you must made a valid attempt to locate these missing beneficiaries. 

Beneficiaries have up to 12 years to start an action against personal representatives (PR’s) to recover their entitlement. It is therefore essential the PR’s protect themselves by keeping records of all they have done  to ty and trace them.

The costs of any such search will come out of the residue of the estate and it may be deducted from the share of the person to be traced.

If the beneficiary cannot be traced then the PR’s should think about insuring against the risk and they may take  indemnities from the other beneficiaries or if necessary you can apply to the Courts for a Benjamin Order.

A Benjamin Order is a direction by the court where a beneficiary cannot be traced. You would ask the court to find that the beneficiary should be treated as pre-deceasing the deceased. The court may also order that monies be set aside, it depends on the specifics of the case.

You would apply for an order pursuant to CPR r.64.2 (“a Benjamin Order”). A Benjamin Order comes from the case of Re Benjamin; Neville v Benjamin [1902] 1 Ch 723),.

However, prior to embarking on the aforementioned options, it is advisable for personal representatives to make reasonable enquiries so as to demonstrate that the missing beneficiary is in fact missing. For example, personal representatives should consider placing an advertisement in a newspaper local to the missing beneficiaries last known residence, instructing a genealogist or a private investigator.

Uncooperative Beneficiaries

Where a beneficiary is refusing to accept their share of the estate, the personal representatives have two options. Firstly, they can apply under CPR Part 64 for court directions, or secondly, they pay the share into court.

A PR can pay the beneficiary’s share into court. This has the equivalent effect to obtaining a valid receipt from a beneficiary. 

Where a beneficiary is resident outside of the United Kingdom and is entitled to the share a payment into court is a reasonable approach also a payment into court is justified where the personal representatives have genuine doubts as to whether the person in question is actually entitled to the share.