Missing Beneficiaries

When it comes to administering entitlements under a Will, the executor or administrator has a duty to make reasonable attempts to locate beneficiaries and distribute the estate accordingly. But what happens if a beneficiary cannot be found?

In the event of a missing beneficiary, Executors can make an application to the Court seeking a Benjamin Order. This allows an Executor to distribute the assets within an Estate when a beneficiary cannot be located. The Order allows for the Estate to rely on a presumption that where there has been no contact and all reasonable attempts to locate the beneficiary have failed, that the beneficiary has died and their share can instead go to the next entitled person.

This runs contrary to conventional practices of establishing death; a Benjamin order does not require evidence proving that the beneficiary has deceased – it simply requires an absence of evidence that suggests the beneficiary is alive.

It is worth noting that the successful application for a Benjamin order does not prevent that beneficiary (if ever located) from claiming their testamentary entitlement. The beneficiary is able to make a claim up to 12 years from the date of the Will makers death, however it protects the Executor from any personal liability distributing the Estate in the circumstances.

Any attempt to apply for an order requires the administrator to prove that they have made all necessary and reasonable attempts to locate the individual. Inquiries can be made through family members, electoral rolls, phone records, and with the registry of births, deaths and marriages. Facilities like private investigators and missing heir’s services are also available, however both can be costly and complex – especially if the estate is not substantial.

When making your Will it is important to give consideration to who you are appointing as your executor and beneficiaries and the risks of those persons losing contact. We recommend keeping a record of names and contact details of beneficiaries, and updating this regularly. Keeping this record with your Will and other important documents can also help your executors as they navigate the details of your Estate when you are no longer around. It can also help avoid additional legal costs being incurred.

Madeline Crnkovic, Paralegal at Zande Law Solicitors, Suite 9, Norwinn Centre, 15 Discovery Drive, North Lakes, is the author of this article, training in the area of Wills and Estates.

The information in this article is merely a guide and is not a full explanation of the law.  This firm cannot take responsibility for any action readers take based on this information.  When making decisions that could affect your legal rights, please contact us for professional advice.