The attorney-client relationship is a fiduciary relationship and, just as in other fiduciary relationship, the attorney’s dealings with the beneficiary – the client – are subject to special legal scrutiny. As one Illinois court has put it: The law places special obligations upon an attorney by virtue of the relationship
Aug 20, 2019 · Title Research has more than 50 years of experience tracing missing beneficiaries. We will only charge on a time and expense or fixed fee basis as we believe that the research requirements remain the same regardless of the sum at stake. It costs the same to locate a missing person due to receive £5,000 as it does one due £50,000.
May 12, 2021 · If an executor is not communicating with beneficiaries, beneficiaries have a right to petition the court to try to compel the executor to provide information or to try to have the executor removed. As a general rule of thumb, beneficiaries should have enough information about estate assets and estate administration to enforce their beneficiary ...
as some suggested steps that estate trustees can take to locate missing beneficiaries. 2. LEGAL OBLIGATION OF THE ESTATE TRUSTEE TO LOCATE MISSING HEIRS Estate trustees have a fiduciary duty and obligation to administer an estate. Equity imposes upon trustees a duty to disclose to beneficiaries, the existence of a trust in a variety of ...
If the executor never lodged the will, the beneficiary may have to contact the executor directly to demand a copy. To ensure that the will is valid and there are no ambiguities within it, beneficiaries should consider hiring a probate lawyer to review it.
Luckily, there are steps that can be taken to remedy the problem of an executor not communicating with beneficiaries. When an executor is withholding information , a good first step for beneficiaries is to send the executor a letter requesting the documents they want. It is best for beneficiaries to communicate in writing so there is a record ...
If an executor did not properly notify a beneficiary or heir about a decedent’s will, the beneficiary may have a right to bring a will contest to revoke admission of the will to probate. A will contest lawyer can assist beneficiaries with determining whether sufficient grounds exist for contesting the will. It is important for beneficiaries ...
It can be frustrating for beneficiaries when the executor is withholding information. An executor failing to operate transparently not only raises suspicion of misconduct, but it can render beneficiaries powerless to enforce their rights. Luckily, there are steps that can be taken to remedy the problem of an executor not communicating ...
A beneficiary lawyer can assist estate beneficiaries with obtaining the information they need from executors if the executor is failing to cooperate.
This means that beneficiaries should actively seek out information from the executor if they want to have a say in estate-related decisions, because what an executor considers to be a reasonable amount of information may differ from what a beneficiary considers to be a reasonable amount of information. If an executor of the estate is uncertain ...
When an executor cannot locate missing heirs or beneficiaries, the executor essentially has two options: (1) petition the court to allow them to deposit the missing beneficiary’s interest with the county, or (2) petition the court to have the missing beneficiary declared deceased.
In this decision, the estate trustee bought an application seeking a Benjamin Order which would permit him to distribute the residue of the estate as if one of the named beneficiaries had predeceased the testator.
The Benjamin Order is derived from the Chancery decision in, Neville v Benjamin48. In that case, the testator was survived by twelve children. A thirteenth, Philip, had disappeared while on vacation, and the disappearance, after he was suspected of having embezzled money from his employer. The court noted that the onus to provide that Philip survived was on his administration. The burden was not discharged. There was no reason why Philip would continue to absent himself in the circumstances. An order was made which permitted the distribution of the estate as if Philip had predeceased the testator. The Benjamin case has been followed in other cases including in, Re Green’s Will Trusts49, and in the Canadian decision of Re: Wieckoski Estate.50
Under the Absentees Act, an “absentee” means a person who, having had his or her usual place of residence or domicile in Ontario, has disappeared, whose whereabouts is unknown and as to whom there is no knowledge as to whether he or she is alive or dead. Upon application, the Court may declare the person an “absentee.” Such an application may be made by several individuals including next of kin, a creditor, married spouse or “any other person.”41 The Court may then make an order for the custody, care and management of the property of the absentee, and a committee may be appointed for this purpose. The committee has the same powers, and is subject to the same duties as a guardian of property under the Substitute Decisions Act42. The committee is also specifically authorized to expend monies for the purposes of locating the absentee, and in ascertaining whether he or she is alive or dead.43 In Lu (Re)44, the applicant’s husband disappeared on October 30, 2007. In 2008, the wife brought an application to have her husband declared an “absentee.” Neither the wife, nor the daughter had contact with Mr. Lu, and he had not contacted anyone else in his family, as well, he missed several important holidays with the family which was atypical for him. On the application, the wife filed a newspaper article as part of her evidence which suggested that the police thought Mr. Lu was a loan shark and had been killed. The wife also testified that the car her husband normally drove had gone missing.
No spouse and no issue? The estate then will be distributed to any surviving parent, or where both parents survive to each parent in equal shares.19 No parents? The estate would then be distributed to any surviving brothers or sisters.20 However, if there are any children of a deceased, brother or sister, those children would take that deceased’s share. Where no spouse, issue, parents or brothers/sisters survive, then the estate is divided equally among nieces and nephews.
The named beneficiaries in the Will are entitled to inherit in accordance with the deceased’s instructions. Those expressly named will be readily identified. When the Will simply says to “my children,” or to “my next of kin,” or “issue,” identification will be more complex.
If a disappointed beneficiary shows up after the estate has been distributed, the onus is on the estate trustee to demonstrate that they made reasonable inquiries in order to avoid potential liability in negligence.10 In Re Short Estate,11 the court held that casual inquiries by an estate trustee into the whereabouts of a beneficiary were not sufficient. The court found that: The defendant was negligent in not ascertaining the whereabouts of the infant plaintiff. . .if inquiry was made in this connection it was of the most casual kind. . .After all, a trustee does owe duties to a cestui que trust and one of the first of them is to let the cestui que trust know of his interest and something about the trust.12 A lawyer representing an estate trustee should advise their client to be diligent in locating heirs to relieve themselves of possible liability. Lawyers should put in writing to their estate trustee client that while the lawyer can assist them in their search for beneficiaries, the estate trustee is ultimately personally responsible for identifying and finding those persons who are to inherit.
Estate trustees have a fiduciary duty and obligation to administer an estate. Equity imposes upon trustees a duty to disclose to beneficiaries, the existence of a trust in a variety of circumstances. Where the enforcement of the trust requires that a beneficiary receive notice of the trust's existence, and the beneficiary would not otherwise have such knowledge, a duty to disclose will arise.1 Courts have imposed an obligation on a trustee to notify beneficiaries of the existence of a trust in the context of a family trust, or a trust for minors: for example, in the cases of: Hawkesley v. May2; Brittlebank v. Goodwin3; and, in re Short Estate4. More recently, the majority in the Supreme Court of Canada decision of Valard Construction Ltd v Bird Construction Co.,5 confirmed a trustee’s obligation to take the steps that an honest, prudent and reasonably skillful trustee would have taken to notify potential beneficiaries of the existence of the trust.
When a person dies without a will (intestate), California law clearly outlines who inherits the probate assets. For example, if there is both a surviving spouse and children, the spouse inherits all the community property, and one-half (1/2) of the deceased’s separate property if there is one child and one-third (1/3) of the deceased’s separate property if there is more than one child. California law outlines distribution of estates for every family situation, with the State of California to receive the assets in the event no next of kin can be located.
For further information or to schedule an appointment with one of the probate attorneys in Los Angeles, contact the Keystone Law Group, P.C. at 310.444.9060 or visit www.Keystone-Law.com.
If you are the Administrator of an estate for which an heir or beneficiary cannot be located, get legal help, or the estate may be held open for a long time without distribution. There is also the risk that part of the estate will end up going to the State of California. Don’t take that chance. For further information or to schedule an appointment with one of the probate attorneys in Los Angeles, contact the Keystone Law Group, P.C. at 310.444.9060 or visit www.Keystone-Law.com
Normally, family members can identify and locate heirs and beneficiaries to a deceased California resident’s estate. Other times, extra efforts need to be taken to locate these persons so that they can be provided notice of their right to inherit or otherwise participate in the proceeding.
Some executors choose to apply for a “Benjamin Order” from the relevant Supreme Court. This provision derives from the Chancery Court decision in In re Benjamin; Neville v Benjamin [1902].
Alternatively, an executor can purchase missing beneficiary indemnity insurance to cover a modest bequest. This allows the executor to finalise the deceased estate administration with the proviso that if the missing beneficiary is later located, the insurance will pay out the entitlement.
A testator should make it as easy as possible for the executor of the estate to locate the beneficiaries of the will. The testator should confirm the contact details of beneficiaries when they regularly review and update their will.
When someone passes away, they leave behind an estate; it’s necessary to distribute that estate to the rightful heirs, known as beneficiaries. As the programme highlights, it’s not always easy to identify who should benefit from the estate or, if the beneficiary is known, to locate their whereabouts. How to find missing beneficiaries ...
If placing a notice doesn't produce any results, the personal representative of the estate must find other ways to trace the beneficiary, such as hiring a professional genealogist and international probate research agency like Fraser & Fraser to carry out a thorough investigation.
This insurance protects against the risk of a beneficiary, unknown at the time, coming forward later to make a claim to the estate after is has been distributed. The insurance covers the estate's value at the distribution date and an escalator clause, which accounts for any interest that may have accrued.
If there is no Will, meaning the person has died intestate, then the person’s next of kin (usually their spouse, civil partner or child) can apply for the responsibility of administering the estate as the administrator. Both roles, the executor and administrator, can simply be known as the personal representative.
Identifying the location of a known beneficiary, who could be mentioned in the Will, can be as simple as placing a deceased estate notice in The Gazette (the official UK public record) and in a newspaper that’s local to the deceased.
Unknown or untraceable beneficiaries, at the time of estate administration, can later file for a claim for their entitled share of the estate. If steps weren’t taken to identify or locate the beneficiary, the personal representative can be held personally liable to pay for the rightful beneficiary’s share.
Discharging your financial liability as the personal representative. Anyone responsible for dealing with the estate has a number of legal duties and obligations they must perform to ensure beneficiaries are correctly identified and located. If there is a Will, it will name an executor who takes on this responsibility.
The Personal Representative has the following options to ensure they are protected: 1 Obtaining specific insurance to protect against a claim by a missing Beneficiary 2 Applying to the Court for an Order to determine how the Estate is to be distributed 3 Making a payment to the Court under S.63 Trustee Act 1925.
The most common approach is to use a Tracing Agency who have various tools at their disposal to conduct the necessary investigation. Naturally the more information that is known about the Beneficiary, the higher the likelihood that they will be traced.
Making a payment to the Court under S.63 Trustee Act 1925. All these options should be considered by weighing up the value of the Estate and the risk of a potential claim. In a very small Estate it may be inefficient and disproportionately costly to apply for a Court Order.
When dealing with an Estate it may be that someone who is entitled to benefit from the Estate (known as a Beneficiary) cannot easily be located . This can cause significant delays in the Probate process and complex (sometimes costly) steps may need to be taken to track a missing Beneficiary down.
However, it could be that a Beneficiary simply cannot be located, and all reasonable means of identifying and searching for them have not been able to provide a result.
Firstly the Beneficiary is identified but their whereabouts are unknown. The other situation, which is more complex, is that the Beneficiary needs to be identified and their whereabouts located. This is usually the case when the deceased person did not leave a Will and as such the Rules of Intestacy will apply.
This is however relatively common in Estates where the deceased has not left a Will.