Jakob Puntschart, contentious probate solicitor, discusses the steps personal representatives can take when dealing with missing or uncooperative beneficiaries, including the legal options available to help progress the administration of an estate.
Executors and administrators of deceased estates are collectively known as personal representatives or “PRs”.
A PR’s key responsibility is to ensure that an estate is administered efficiently and without unnecessary delay.
However, some factors are beyond a PR’s control, including uncooperative or missing beneficiaries. Where a beneficiary refuses to engage or accept their inheritance, the administration of the estate can be brought to a standstill.
If there is a beneficiary of an estate who is failing for some reason to accept their entitlement, in such circumstances, a PR may be able to apply to the Court under section 63 of the Trustee Act 1925 for permission to pay the beneficiary's entitlement into the Court Funds Office. This allows the estate administration to be completed while ensuring the beneficiary's funds remain protected until they are claimed.
The Court Funds Office is a government service that safely holds money paid into Court during legal cases. It acts as an independent custodian, protecting funds until the Court decides who is entitled to receive them or how they should be distributed.
To pay an uncooperative beneficiary's entitlement into Court, a PR must make an application to the Court and provide evidence of the efforts made to pay the beneficiary. As part of the application, the PR can ask the Court to order that the costs of the application be deducted from the beneficiary's entitlement, rather than being borne by the estate or the PRs personally.
If the Court grants the application, the funds can be paid into the Court Funds Office. The money will then be held securely, and may earn interest, until the beneficiary comes forward and claims their entitlement. This allows the PR to finalise the administration of the estate without being indefinitely delayed by an unresponsive beneficiary.
If a beneficiary cannot be located, certain steps should be taken before any Court application is made. PRs must first make reasonable efforts to trace the missing beneficiary. This may include contacting family members and friends, making enquiries at the beneficiary's last known address, and reviewing any available records that may assist in locating them. Where the value of the entitlement justifies it, a professional tracing agent may also be instructed, particularly where there is reason to believe the beneficiary may be living abroad. The cost of these enquiries is generally payable from the estate.
In addition, section 27 of the Trustee Act 1925 requires PRs to place statutory notices in the London Gazette and a local newspaper, giving creditors and potential claimants at least two months to come forward before the estate is distributed. Where a beneficiary is known to have connections to a particular area, it may also be sensible to place an advertisement in another relevant local publication.
If these steps do not result in the beneficiary being found, the PRs may make a Part 64 application to the Court. This application would seek directions from the Court, who would provide a way for the administration to be distributed and finalised.
Under the Civil Procedure Rules, a PR may ask the Court for the following directions concerning a missing beneficiary.
One option available to the Court is the making of a Benjamin Order.
A Benjamin Order allows the PRs to distribute the estate on the assumption that the missing beneficiary has died, or that they cannot be found, provided sufficient enquiries have been undertaken. The order protects the PRs from personal liability if the missing beneficiary later reappears and seeks their entitlement.
However, the beneficiary's interest does not disappear; instead, any claim would generally lie against the recipients of the estate who benefited from the distribution. A Benjamin Order is therefore often used where the cost and delay involved in continuing searches would be disproportionate to the value of the missing beneficiary's potential entitlement.
A retention, sometimes referred to as a contingency fund, is a sum of money retained by the PRs of an estate to protect against future liabilities or unresolved claims. In the context of a missing beneficiary, the Court may direct that a fund be set aside representing the beneficiary's potential entitlement. The retained funds are held pending the occurrence of a future event, such as the beneficiary being located or further evidence becoming available as to their entitlement.
This approach enables the administration of the estate to progress whilst safeguarding the interests of the missing beneficiary and protecting the PR from the risk of having to recover funds from beneficiaries if a claim later arises. Where appropriate, the retained funds may be held by the PRs, trustees, or paid into the Court Funds Office pursuant to an order of the Court.
If you require assistance dealing with a missing or uncooperative beneficiary, our Inheritance Disputes solicitors can advise you on the options available and guide you through the process.
Whether this involves tracing a beneficiary, obtaining a Benjamin Order, establishing a contingency fund or making an application to the Court under Part 64 of the Civil Procedure Rules, we can provide clear, practical advice tailored to your circumstances. Please get in touch with a member of our team to discuss your case and how we can help.
Call us on 01206 593933 today to speak with one of our contentious probate solicitors. Or complete the form below.
Disclaimer
The content of this article is provided for general information only. It does not constitute legal or other professional advice. The information given in this article is correct at the date of publication.
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