Missing Beneficiaries NT
It is an executor’s duty to distribute a deceased estate according to the testator’s wishes as set out in their will. In many cases, it is a straightforward process to pass bequests on to the designated beneficiaries. In fact, the executor and the main beneficiary of the estate are often the same person. Even when there are multiple beneficiaries, executors are often very familiar with (if not related to) the people named in the will. The situation becomes more complicated when an executor does not know and cannot locate a beneficiary. This article explains the implications when there are missing beneficiaries in a deceased estate in the Northern Territory.
Locating A Beneficiary
An executor is charged with passing bequests on to the designated beneficiaries of a will. Consequently, one of the executor’s first duties is to track down these beneficiaries and inform them of their inheritance.
A well-organised testator regularly updates their testamentary documents so that it is an easy task to locate beneficiaries. This may be in the form of a document attached to the will that shows the current address and contact details of all beneficiaries. When a testator does not regularly update their will and provide supporting documentation, the process can become more difficult. Over time, beneficiaries may move or change their name. In that case, an executor may struggle to locate a beneficiary named in the will.
An executor must take every reasonable step to locate missing beneficiaries. It is not enough for the executor to just conduct basic enquiries, such as writing to old addresses or doing an internet search. An executor should start by enquiring with the deceased’s family and friends to see whether they can identify the beneficiary and share their location. The next step is for the executor to advertise locally and online and search records for any trace of the missing beneficiary. If the bequest is sizable, it may be worth hiring an investigator to track down the beneficiary.
The executor must conduct these enquiries while fulfilling their duty not to waste estate funds. This means that they should evaluate what measures are appropriate given the size of the bequest and the overall estate, the precise wording of the will, and the chances the beneficiary may actually be found.
If Beneficiary Cannot Be Found
An executor can follow several different routes after exhausting all reasonable measures to locate a missing beneficiary. The executor can:
- reserve the bequest in a fund so that if the beneficiary is ever found, it can be passed directly to them. This option is not without drawbacks, as the executor will continue to have a limited obligation to the estate until the funds are delivered;
- pass the bequest to other beneficiaries of the estate. In that case, the beneficiaries must undertake to return the bequest (or the value of the bequest) if the missing beneficiary is eventually located. This option, too, is not ideal, as the beneficiaries may struggle to repay the bequest in the future if the missing beneficiary reappears;
- buy beneficiary indemnity insurance. In this scenario, the executor can divide the bequest amongst other beneficiaries and take out insurance cover in case the beneficiary ever emerges. This has the advantage of allowing the executor to fully finalise the estate administration, but it is an additional cost to the estate;
- apply for a Benjamin Order from the Supreme Court of the Northern Territory. This precedent was established in In re Benjamin; Neville v Benjamin . In this case, the administrator in charge of the estate could not locate one of the deceased’s children. As the administrator had exhausted all searching options, the court ordered that the administrator could distribute the missing child’s inheritance to his siblings. This Chancery Court decision established that when a missing beneficiary is presumably dead, a court can make an order redistributing the deceased estate. In that instance, an executor is indemnified from liability if the beneficiary is later located (although the other beneficiaries may need to return the bequest). While this option is a popular choice with executors, it does incur considerable costs to the estate, with legal and court fees and the requirement for professional searches.
Avoiding Having Missing Beneficiaries
Naturally, it is best to avoid having missing beneficiaries in the first place. A testator can take certain steps to facilitate their executor’s duty to locate all beneficiaries. The most important step a testator can take is to regularly update their will, checking that beneficiaries’ contact details remain up-to-date. Some testators provide further assistance by leaving beneficiary profiles in a Letter of Wishes attached to their will. These profiles include each beneficiary’s residential or postal address, phone number, email, social media handles, employment details and next of kin.
Please contact Go To Court Lawyers on 1300 636 846 if you have questions about the implications of missing beneficiaries on deceased estate administration. Our experienced civil lawyers can provide specialised advice on an executor’s responsibility and their legal options given their specific circumstances.