What happens if a beneficiary cannot be located?

I got a question over the weekend about what happens where a person dies (either with or without a Will) and it is not clear that a beneficiary who is missing (or their descendants) are dead or alive.

In a recent matter Karl Rex aged 72, died without a valid Will in February 2012.

Karl was born in Germany in April 1939. His father was reported to have died in action during the Second World War in 1943, subsequently his mother had also died. Karl had two siblings, Willi (born in 1941 and still living) and Olga (born in 1938 and killed in a traffic accident in 1949).

Karl emigrated to Australia in 1962,by all accounts he never married and had no children.

The NSW Trustee & Guardian as administrator of Karl’s estate sought a Court order to allow them to finalise the distribution of Karl’s estate to his brother Willi. This is known as a “Benjamin Order”. The basis of the order was a case where a beneficiary had disappeared nine months prior to the death of his father and it was not known whether he had died or if he had done so before the father.

Benjamin Orders are not common, however in certain circumstances such as these they are a useful way to ensure distribution of an estate following reasonable efforts to determine the rightful heirs.

Another benefit of a Benjamin Order is that it protects the executor (or administrator) of the estate if a person entitled to a portion of the estate subsequently appears. If such a person does appear, they may claim against beneficiaries who have already been paid.

The Court was satisfied that, in  the circumstances, all reasonable searches had been undertaken in both Europe and Australia to determine whether or not Karl had or has any other half or full-blooded siblings. The outcome of  these enquiries is that it appears that Karl’s only surviving relative is his brother, Willi. The Court felt that requiring the administrator to undertake further searches would be  unnecessarily expensive and time consuming  with no reasonable prospect of finding out any further information, and ordered:

“1. That the NSW Trustee & Guardian be at liberty to distribute the estate of the deceased, who died on 27 February 2012 in the manner set out below in the absence of conclusive evidence that the deceased was survived by:

  1. Any person who was his spouse;
  2. Any issue (children);
  3. His father; and
  4. Any siblings other than [the deceased’s brother].

  1. That the trustee be at liberty to distribute the deceased’s estate to [the deceased’s brother]….”

A more effective way to ensure that your estate is distributed the way that you wish is to make sure you have a valid Will & that you keep it up to date.

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