Locating beneficiaries is one of the most important duties for executors and administrators. If someone entitled to a share of the estate cannot be found, it can stall the entire process and leave personal representatives exposed to risk. Fortunately, the law provides practical solutions, including the use of a Benjamin Order, so estates can be distributed fairly and safely.
How to Make Reasonable Enquiries
Start by carefully reviewing the will and any family tree information. Double-check spellings, married names, and last known addresses. It’s often helpful to speak with relatives, friends, and professional advisers who may have up-to-date contact details or know of life changes such as marriage or emigration.
If initial efforts don’t succeed, more formal tracing steps are needed. Search the electoral roll and consider using credit databases through a professional tracing agent. Social media can be surprisingly effective for finding people who have moved or changed names. Probate genealogy firms specialise in tracking down missing heirs, especially in cases involving distant relatives or complex family structures. Publishing public notices in newspapers or online can also help, especially if the beneficiary may be living abroad.
While Section 27 notices are aimed at creditors rather than beneficiaries, publishing them demonstrates that you are administering the estate thoroughly and can help protect against unknown debts.
Managing Risk When Beneficiaries Remain Missing
If, after proportionate searches, a beneficiary still cannot be found, you must manage the risk of future claims. Indemnity insurance is a practical option, especially where the missing person’s share is modest and the risk is low. This insurance covers the estate if the beneficiary later comes forward.
Another approach is to retain a portion of the estate—holding back a reserve—pending further searches or until a set time limit expires. You may also ask beneficiaries to give undertakings to repay their share if the missing person is found later.
When to Seek a Benjamin Order
If exhaustive searches have failed and the missing beneficiary’s share is significant, it may be time to apply to the court for a Benjamin Order. This order allows the estate to be distributed as if the missing person were dead, or directs a pragmatic distribution based on the evidence. You’ll need to provide the court with a detailed account of your enquiries, including expert reports from genealogists or tracing agents.
Benjamin Orders are especially useful in cases involving complex family structures, such as disputed paternity, adoption, or foreign elements that complicate entitlement. The court’s decision protects executors from personal liability, allowing the estate to move forward.
Worked Example
Suppose a residuary beneficiary named in a will decades ago cannot be traced. The executors check family records, contact relatives, and hire a probate genealogist. Notices are published in relevant newspapers and online. After all reasonable steps, the beneficiary remains missing. The executors retain legal counsel and apply for a Benjamin Order. The court grants permission to distribute the estate to known beneficiaries, with a reserve held back and indemnity insurance in place. If the missing person later appears, their claim is limited to what remains and the insurance policy response.
Key Takeaway
Executors must act methodically and document every search. For low-risk cases, insurance and retention may be enough. Where the missing beneficiary’s share is substantial or the family situation is complex, a Benjamin Order provides court protection and allows the estate to be distributed with confidence.
Disclaimer: This article is for general information only and does not constitute legal, financial or tax advice. Every estate is different, and outcomes depend on your specific circumstances. Take time to familiarise yourself with the rules and keep your paperwork up to date.