When a deceased individual leaves behind a will certain pieces of information are present, the most key being the beneficiary and executor.
There are multiple reasons when solicitors cannot locate the executor or beneficiary of the will. Some of the simple situations that have been found are that they have changed their legal names, or have already lost touch with the deceased, while the complicated cases involve locating unknown relatives— which may need the expertise of professional researchers.
Who can be considered as beneficiaries and what rights do they have? What is an executor and their responsibilities? What happens if both the beneficiary or executor cannot be found?
What is a beneficiary?
A beneficiary is the person written on the will that is eligible to receive assets from the estate. This person can be a friend, spouse, employee or a charitable organisation.
An estate includes real estate, financial accounts, life insurance and more. Beneficiaries are important because it prevents conflicts within family members and other persons involved who expect to receive inheritance when the estate owner dies.
There are different types of beneficiaries. These are:
- Primary beneficiary – this is the individual or organisation who is the first in line to receive the assets.
- Residuary beneficiary – this is the individual or organisation who is entitled to receive a share of the overall assets after all debts have been paid and specific gifts have been allotted.
A beneficiary has the right to:
- be informed that he or she has been named as a beneficiary under the deceased’s will
- be given a copy of the will
- be notified of the entitlement and liabilities of the estate
- receive an accurate ‘Statement of Distribution’ from the executor
- receive the entitlement within 12 months from the deceased’s death
If the distribution of entitlement is delayed, a reasonable explanation must be provided by the executor. A will cannot proceed without the executor and beneficiary present.
What is an executor?
An executor is a person appointed to administer the will of the deceased.
In some cases, the executor can also be the beneficiary of the will. The executor is appointed by the estate owner/testator or by a court if the testator failed to appoint one. He or she can be a lawyer, an accountant or a family member who is over the age of 18 and has no prior felony convictions.
The responsibilities of an executor include:
- Ensure that all assets are accounted for and estimate its value
- Ensure that the assets will be transferred to the correct beneficiary
- Ensure that all debts and taxes of the deceased are paid
What are the steps involved in locating the beneficiary or executor?
When a beneficiary or executor is missing or can’t be found, the interested party must prove that they have taken measures to locate the individual through the following:
- Contacting family and friends of the missing individual
- Contacting the organisations and social circles where the missing individual is a member
- Advertising in local news outlets
- Application of information to government agencies to acquire information such as birth, death, marriage, etc.
If unsuccessful, the role of the executor will be appointed to the next appropriate individual such as the beneficiary, who will then become the administrator of the estate. This will not impact the entitlement that the beneficiary will receive once he or she becomes the executor.
On the other hand, the executor may apply for a Benjamin order to the Supreme Court if the beneficiary can’t be located. The executor will no longer be liable once they distribute the estate to a person/s or organisation/s who they believe are the right beneficiaries even if more entitled beneficiaries are subsequently found.
Grant of Probate
The executor should apply for a Grant of Probate once they are located in order to legally administer the deceased’s last will and testament. A probate is a court order granted by the Supreme Court to confirm that the will is valid and that the executor has permission to distribute the estate according to the will.
The grant of probate usually takes 20 working days to process provided that the documents that have been submitted are clear and complete. To apply for a grant of probate, the executor should adhere to the following process:
- gather supporting documents
- publish a probate notice
- wait for 14 days
- submit a probate application
- respond to Requisitions from the court
What we offer
Worthington Clark helps locate unknown beneficiaries or executors to resolve the will. Our team of highly-experienced researchers will assist in finding executor and beneficiary locations across Australia and internationally. We have an extensive network of partners in multiple states nationwide as well as in the international genealogy community to provide us with accurate tools and the support we need for our beneficiary and executor search services.
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Our Worthington Clark genealogists and researchers are highly trained to conduct accurate, sophisticated and well-detailed research processes to best benefit our clients.