What are the steps an estate trustee needs to take when it comes to locating missing beneficiaries?
The duty of an estate trustee is to “endeavor to locate all those who were to benefit under the will” (Re Short Estate, 1941 CanLii 421). That being said, it is not clear to what lengths an estate trustee must go to ascertain and locate missing beneficiaries. Section 24 of the Estates Administration Act provides that an estate trustee “shall make reasonable inquires” to locate missing beneficiaries.
Making reasonable inquires
The question then is, what constitutes a reasonable inquiry?
The courts have not provided much guidance on this issue, other than to note that “casual inquiries” do not constitute a reasonable inquiry. (Re Short Estate).
Therefore, it is essential that an estate trustee conduct a full and proper search. This requires time, effort, and, in many cases, expense, as an estate trustee should follow any credible leads they may obtain from family or friends of the deceased. Reviewing and searching through the deceased’s personal effects and documents is also an important way to go about attempting to track down missing beneficiaries. Thankfully, social media and genealogical sites have made the task of tracking down missing beneficiaries easier nowadays.
Additionally, section 24 of the Estates Administration Act includes the guidance that an estate trustee should search the records of the Registrar General of Ontario for missing beneficiaries.
Keeping records of the search
In some cases, a beneficiary can be identified but not found. Therefore, it is imperative that an estate trustee keep records and documentation of their search(s). If a missing beneficiary surfaces down the road and can prove that the estate trustee did not make reasonable inquiries to locate and contact them, the estate trustee could be held liable.
Protecting yourself from liability
Once an estate trustee has made reasonable inquiries into locating missing beneficiaries, there are a few options available to further protect against potential liability:
- The estate trustee could bring an application for advice and/or direction of the court, seeking to distribute the estate in a particular fashion;
- The estate trustee could seek a declaration that the missing beneficiary was dead under subsection 2(3) of the Declarations of Death Act; and
- The estate trustee could begin an application to declare the beneficiary an absentee under the Absentees Act, in which case the court could appoint an individual to act as committee of the property while the search continues.
If you are looking for further reading on missing beneficiaries, consider the blog posts below:
Missing Heirs and Probate Genealogy Going Digital?
Thousands Have Unclaimed Funds Waiting for Them!
Thank you for reading and have a great day!
Suzana and Geoffrey Sculthorpe