After an estate trustee has had an opportunity to locate the testator's final will, he or she must locate all heirs of the deceased. An estate trustee has a duty to locate the beneficiaries of an estate and to inform them of their entitlement pursuant to the deceased's will or intestacy. Often, this is a simple task, consisting of contacting the immediate family named in the most recent will. When a testator has a large extended family, however, complications may arise in determining and locating all of the beneficiaries of a class gift or pursuant to an intestacy.
A good starting point is to make contact with the family, friends and neighbours of the deceased. These individuals may have important information, relevant to those who will need to be contacted during the administration of the estate, and may offer assistance in creating a family tree.
Many estate trustees find success searching online, for example, on Google or Canada 411, for contact or other information with respect to beneficiaries of the estate. After such self-help remedies have been exhausted, the estate trustee should consider seeking the assistance of a professional.
Researchers who work to track down beneficiaries are readily available to estate trustees in need. Researchers will generally charge for their service or, instead, in exchange for a finder's fee, should they be successful in their search. They routinely consult genealogical search engines and attend cemeteries to determine family relationships and the status of beneficiaries. Private investigators may also be a suitable option in areas where researchers, specializing in this work, are unavailable.
So-called heir hunters, whether individuals or companies, are professional genealogists who work the other side of the missing-beneficiary issue. Heir hunters keep an eye on probate cases, in which it seems likely that beneficiaries are unknown or cannot be easily found.
They then attempt to locate beneficiaries, and convince them to enter into contracts that will provide a percentage of their inheritance to the heir hunter. Heir hunters often refer beneficiaries to lawyers, to ensure that they will receive payment for their work.
In locating beneficiaries, an estate trustee will be held to the standard of reasonable efforts. A reasonable effort must be made to find any unknown or missing heirs. If one goes through the steps available to him or her independently, then consults a researcher or private investigator, the expectation that reasonable efforts are to be made may be satisfied.
If an estate trustee has remained unsuccessful in attempts to locate estate beneficiaries, he or she is able to go to court for assistance. It is important to document all steps fully so that adequacy of attempts can be considered, and proven, if necessary, before the court. Documentation presented to the court typically includes search results from online databases and a report prepared by the researcher. Courts are hesitant to make an order that adequate attempts have been made to locate missing beneficiaries, due to the significant consequences if one cannot be found and later emerges. The court may require that additional steps are taken or that a period of time passes to ensure that the missing beneficiaries will not come forward at a later time.
Judy Lynn Davis, from Jacksonville, Florida, disappeared in 1972. After her mother, predeceased by her father, died this year, her sister, Barbara O'Quinn, applied for probate. South Carolina Probate Court ordered that Barbara must publish a legal notice to Judy, as a beneficiary of her parents' cumulative estate, despite the fact that she has not been seen or heard from in over 40 years. The Court stated that it was making such an Order in the hope that the result would provide some closure to the remaining family. The missing person file has been closed since 1993.
Taking the time to search for unknown or missing beneficiaries of an estate may not be easy or have a high success rate, but it is an important early step in the administration of an estate. If a beneficiary misses out on a gift because inadequate measures were made to locate and contact them, an estate trustee may unnecessarily be leaving him or herself open to personal liability.
*Ian Hull and Suzana Popovic-Montag are partners at Hull & Hull LLP, an innovative law firm that practices exclusively in estate, trust and capacity litigation. To watch more Hull & Hull TV episodes, please visit our Hull & Hull TV page.