What Should an Estate Trustee do when a Beneficiary Cannot be Located?
An estate trustee’s duties in administering an estate include, among other things, the distribution of all estate assets in accordance with the terms of the Will or the rules of intestacy in the event there is no Will. However, in order to make such a distribution, the estate trustee will be required to identify any and all beneficiaries rightfully entitled to a share of the estate.
For most estates, this is often a simple and routine task. However, where the deceased has a large extended family, complications may arise in both determining and locating beneficiaries, particularly, in circumstances where the deceased dies without a Will.
An estate trustee must make “reasonable inquiries” to identify beneficiaries. Unfortunately, there is no statutory definition for what constitutes reasonable inquiries. What is considered reasonable will depend on the particular circumstances of the estate. However, this may include speaking with family, friends and neighbours of the deceased, searching through the deceased’s personal effects and papers for the beneficiary’s contact details or conducting searches using online search engines such as Canada.411, www.cyndislist.com; www.rootsweb.com; www.ancestry.com and www.jewishgen.org.
Often, estate trustees will hire a professional researcher or a genealogist to assist them in locating a missing beneficiary. Such professional researchers often have access to databases that are not available to the general public. The Archives of Ontario can provide a list of accredited researchers both in Canada and internationally. The International Commission for the Accreditation of Professional Genealogists also maintains a database on their website which can be accessed here.
Despite such reasonable efforts, an estate trustee may still be unable to locate a beneficiary or may have concerns that not all possible heirs have been ascertained. If the estate trustee wishes to proceed with the administration in such circumstances, he/she will need to bring an Application for the advice and direction of the Court and swear an affidavit in which he/she outlines the efforts taken to locate the missing beneficiaries. This affidavit must be filed with the Court on notice to the Office of the Public Guardian and Trustee. As such, it is important for an estate trustee to document any and all steps taken to locate a missing beneficiary, and if an expert is retained, obtain a copy of his/her search efforts as well.
On hearing the Application, the Court may require that the estate trustee take additional steps, or that a period of time passes to ensure that the missing beneficiaries will not come forward at a later time.
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