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Megan Manganaro
Megan Manganaro ,
PARALEGAL
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What should a Personal Representative do when a beneficiary or creditor cannot be located?
15 November 2019

What is the role of a Personal Representative?

A Personal Representative (PR) is a collective term for executors and administrators. Executors and administrators differ in that executors are appointed by Will whereas an administrator will act where there is no Will or the whole or part of the Will is ineffective (e.g. a Will that does not appoint executors).

PRs manage a deceased person’s estate and during administration they will be required to:

  • Collect in the assets of the deceased
  • Pay debts of the deceased and
  • Properly distribute the assets to those entitled under the will or according to the terms of the intestacy rules 

Where a PR breaches their duty, they shall be held personally liable to beneficiaries (of the deceased’s will or on intestacy) as well as third parties, such as creditors.

Missing or unknown beneficiaries

The nature of family relationships can be complex, especially where people lose touch or divisions occur. There are instances where it can be difficult to ascertain who the beneficiaries are, especially where someone died without a Will and/or there are no immediate relatives.

These situations make a PR’s duty to properly distribute the estate much more difficult to perform and, should a breach of duty occur, can open them up to personal liability.

As a PR, it is your responsibility to make all reasonable enquiries in order to locate missing beneficiaries. 

How might I find missing beneficiaries/creditors?

The length to which a PR is expected to search for beneficiaries varies from case to case. A PR should be guided by circumstances of the case and the costs involved ensuring that any expenditure is justified. How a PR conducts a search for missing beneficiaries is therefore largely governed by the value of the estate and the risk of a potential claim.

  • Speak to family and friends and following leads, such as previous addresses, is an easy and traditional first step in gathering information about the estate and who may be entitled to benefit from it. Importantly, if beneficiaries are found using these methods, you still need to verify that they are the correct person in line with the Will/intestacy rules.  

Should this fail, or under certain circumstances, it may be appropriate to instruct a professional to assist in locating missing individuals. In today’s society where social media and digital footprints feature heavily in our everyday lives, it may seem absurd that individuals can go missing. However, for a manner of reasons, it does happen and the cost in employing a professional can save both time and later liability. Professionals such as:  

  • Tracing agents can be instructed to investigate and locate a beneficiary. 
  • Genealogical researchers, commonly known as ‘Heir Hunters’ after the BBC television programme, trace missing beneficiaries and identify heirs to estates and assets worldwide by searching various records such as the electoral roll and birth, marriage and death records. With the knowledge they gather through their research, family trees are constructed to prove relationships and discover individuals who may be entitled to benefit from the estate. 

How can I protect against unknown beneficiaries/creditors?

Placing a S27 Trustee Act 1925 Notice

Under S27, the PR can give notice by advertisement in the London Gazette that they intend to distribute the estate after a given date (usually a period of two months) and inviting parties with an interest in the estate to make a claim. In some cases, especially where the estate involves land, it may also be sensible to advertise in a particular area or district where the deceased was last known to reside.

The notice is not a legal requirement, however, protects a PR from any personal liability for failing to pay debts or distribute the estate properly, should claims from unknown beneficiaries or creditors arise after the estate has been distributed.

The protection under S27 does not extend to the other beneficiaries, who can still be pursued during the period of notice by unknown parties with a claim to the estate.

If the unknown beneficiary or creditor fails to make a claim within the period provided by the PR, the PR is free to pay any debts and distribute the estate to known parties with an interest in the estate. The unknown beneficiary or creditor would be unable to pursue the PR for any sums they claim are due to them.

It is important to note that S27 only allows protection against anyone with an interest who is unknown to the PR. It will not protect claims from beneficiaries or creditors whose existence is known but who cannot be traced. 

How can I protect against missing beneficiaries/creditors?

If a beneficiary still cannot be located after reasonable enquiries, in order to avoid having to postpone the distribution of the estate, there a number of choices available to the PR:

Make a payment into court

The PR can pay the amount due to the missing beneficiary or creditor into the Court Funds Office. The receipt of the court officer provides the PR with proper and full discharge in relation to that sum. The PR is then free to distribute the rest of the estate.

This can be an unpopular decision with the other beneficiaries, who may be aggrieved that sums otherwise due to them are made unavailable.

Obtain indemnity from other beneficiaries

Under this option, the PR would distribute the missing beneficiary or creditor’s share of the estate to the other beneficiaries on the basis that, should the missing party subsequently appear, the beneficiaries will repay their share of the legacy.

This is considered a dangerous option for the PR as they will remain ultimately liable if the beneficiaries are unwilling or unable to pay.

Apply to the court for a Benjamin Order

The PRs can apply to the court for an order for permission to distribute the estate known as a Benjamin Order. This is an expensive route and therefore only a proportionate option where the amount due to the missing beneficiary or creditor is large. It is however the only method which fully protects a PR from personal liability.

In order to obtain an order from the court, there must be evidence that all possible enquiries were made to trace the missing person. If this is proven, the court makes the order on the basis that the missing individual has likely died. 
Should the missing individual later emerge, a Benjamin order works to protect the PR from personal liability.

However, the other beneficiaries can still be pursued to recover the assets. 

Obtain indemnity insurance

As an alternative to Benjamin orders, insurance can provide a more cost effective way to protect from personal liability where the risk is not substantial, for instance where the value of the estate is modest or a claim is considered remote under the circumstances.

The advantage of this option is that the administration of the estate can be finalised. In the event that the missing beneficiary or creditor later emerges, the insurance will pay their entitlement.

How else could I be personally liable as a PR? 

Inheritance (Provision for Family and Dependants) Act 1975

PRs can also attract personal liability where an applicant under the I(PFD)A 1975 makes a successful claim that reasonable financial provision was not made for a close relative or dependant. The claim is usually made by individuals who may be aggrieved because they have been left out of a will or do not inherit on intestacy. An individual may also apply where they have received a benefit but are dissatisfied with the amount.

How can I protect myself against a claim under the I(PFD)A 1975?

An application under the act must be brought within 6 months of the Grant of Representation; therefore, it is advised that the PR wait the 6 month period before distributing the estate. PRs that wait before distributing the estate are protected from liability under the Act.

Comment 

When someone dies, it is a PR’s duty to ensure that the funds are distributed to the right person. This becomes a difficult task in circumstances where a beneficiary or creditor is unknown or missing for any reason. The consequences of distributing incorrectly or without sufficient protection could be very costly.

Whether the protection discussed above is necessary and which protection is most appropriate will vary from case to case and very much depends on the particular facts of a matter.

However, where someone makes a Will, steps can be taken to save the PRs time, pressure and associated costs in the distribution of an estate. For instance, by providing and reviewing contact details of beneficiaries.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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