One of the most significant and sometimes onerous duties of an estate trustee is to ascertain and locate all beneficiaries who may have an interest in the estate.
Ascertaining beneficiaries
The obligation to “ascertain” beneficiaries generally comes up when a deceased has left part of his or her estate to a category of beneficiaries, such as “any children of mine”, rather than naming specific individuals in a Will. This obligation may also arise when an individual dies intestate (i.e. without a Will) because, again, the estate trustee may have to ascertain everyone that falls into a certain relationship category with the deceased. For example, if the deceased dies without their spouse, children, parents or siblings alive, his or her estate would pass to any nieces or nephews who were then alive. The estate trustee would therefore have an obligation to identify all nephews and nieces of the deceased.
Once all possible beneficiaries have been identified, the estate trustee then has an obligation to locate these individuals. In some cases, an estate trustee can skip this first step, such as when the deceased has identified all the beneficiaries to his or her estate by name under a Will.
Locating beneficiaries
To locate a missing beneficiary, the estate trustee should start by talking to the family and friends of the deceased, to see if they have any further insight into where the missing beneficiary is. If this does not assist the trustee, a next possible step is to advertise for the missing beneficiary in a newspaper local to where the missing individual is believed or known to have resided, and possibly online as well. Depending on the size of the estate, an estate trustee may also consider hiring a private investigator to help locate the missing individual.
What if a beneficiary can’t be found?
If an estate trustee still cannot locate a missing beneficiary, he or she can attend court and seek to have the missing individual:
- Declared dead under the Declaration of Death Act, 2002 (if there’s evidence to suggest they died before the deceased); or
- Declared an “absentee” under the Absentees Act (if there’s no knowledge as to whether they are dead or alive).
Either of these declarations from the court will allow an estate trustee to continue to administer an estate, despite not being able to locate the beneficiary. However, the court will expect the estate trustee to show he or she made reasonable efforts to locate the missing individual. What is “reasonable” is left up to the judge to decide on a case-by-case basis, having regard to the size of the estate and the amount the missing beneficiary is entitled to.
If you’re unsure about your obligations as an estate trustee, contact our Wills and Estates Group for further guidance.
