Selecting a beneficiary (or beneficiaries) is a key purpose of writing a Will, as it directs inheritance according to the preferences of the testator. It’s a process that involves careful consideration of how you want your estate to be distributed and requires you to clearly identify the beneficiaries of that distribution.
This clarity is super helpful when it comes time to administering your estate, at which point the executor of your Will is faced with a number of responsibilities and duties. You’d assume that locating the beneficiaries would be one of the more straightforward tasks for the executor, however it can prove challenging if these heirs are nowhere to be found!
Potential reasons why beneficiaries cannot be found
It may be many years, or even decades, between the time a Will is prepared by the testator and when they pass away. In that time, a named beneficiary may migrate to another state or country, lose contact with the testator altogether, or even change their name. It could be that the beneficiary has also died, or maybe they’ve just switched off their phone and deleted their Instagram (same, same). With all these variables in mind, difficulties can arise when the beneficiary cannot be located or identified, especially if a Will is not kept up to date by a testator.
Beneficiaries may also be ‘missing’ if a person dies without a Will or there has been a lack of appropriate estate planning. In this circumstance, certain living relatives would be in line to receive an interest in the deceased estate, according to the rules of intestacy. However, if very little is known about the deceased person’s family history, and records are hard to come by, it can be difficult for the person tasked with administering the estate to determine who and where any living relatives may be.
Enter: the Benjamin Order
The good news is that there is a work-around when faced with uncertainty about who should rightfully and legally inherit from an estate, and when a thorough search has failed. If an executor can show they have made sufficiently extensive enquiries to find the missing beneficiary (to no avail), then they have the option to seek a declaration from the Court in the form of a Benjamin Order. This Order will set out the basis for the distribution of assets if the identity, whereabouts or even existence of a beneficiary cannot be verified.
The Benjamin Order enables the executor to seek a declaration from the Court as to who should benefit from the estate. In this way, the Court orders the executor to be at liberty to distribute the estate, which removes any liability from the executor so they can distribute the estate to whoever they believe are the correct beneficiaries (even if the missing beneficiaries are subsequently discovered).
Any known beneficiaries patiently awaiting their inheritance can breathe a sigh of relief when the Court agrees to a Benjamin Order. This is because the administration of the estate cannot be finalised unless the court grants the executor liberty to proceed with distribution. So, all of the other beneficiaries will not receive their inheritances until the Benjamin Order has been issued.
One of the executor’s main duties – to uphold the Will – can be difficult if they need to search high and low to discover beneficiaries of an estate. Save them the hassle by writing your Will online, and keeping across your beneficiaries’ business!
Disclaimer: The content of this blog is intended to provide a general guide to the subject matter. This blog should not be relied upon as legal, financial, accounting or tax advice.