Locating a Missing Beneficiary

Missing Beneficiaries and Benjamin Orders

Everything you need to know about locating missing beneficiaries and finalising the distribution of the Estate.

As an executor your role is three-fold: a) reduce the assets of the Estate into possession; b) pay the debts of the Estate; c) distribute the estate to those beneficially entitled under the Will. This can be straightforward, however, issues may arise where a beneficiary cannot be located and their portion of the estate cannot be distributed. So what do you do? Read on to find out how Streeterlaw can assist you.

What is a Benjamin Order?

A Benjamin Order is where an executor applies to the Supreme Court of NSW for an order to redistribute the Estate on a particular factual basis even though there may be some uncertainty as to the factual matter relevant to the distribution, such as a missing beneficiary presumed deceased. Interestingly, under a Benjamin Order, the executor is not personally liable if the missing beneficiary appears after the Estate is distributed, however the missing beneficiary may claim against other beneficiaries who have been paid out pursuant to the Benjamin Order.

In these applications, the Estate usually bears the costs of the application and the exhaustive searches required to be undertaken to satisfy the Court that on the balance of probabilities, the missing beneficiary is unlikely to re-emerge or be located in the near future.

Required Searches

In a recent NSW case of Application by Little (Estate of Bruce Frederick Little) [2023] NSWSC 402, the Court was satisfied that the executor had conducted an exhaustive search to locate the missing child of the deceased, an equal residuary beneficiary of the Estate. The search did not locate the missing beneficiary and the Court was satisfied that on the evidence, it was probable that all beneficiaries were identified and that no further enquiries could improve the state of evidence.

The type of searches required to be undertaken include but are not limited to:

1. Advertising in newspapers around Australia;
2. Electoral Roll searches in each state and territory of Australia;
3. National Property Ownership searches;
4. ASIC and Business Name, Personal Name searches;
5. Enquiries with government departments including Department of Corrections and Justice;
6. Births, Deaths & Marriages searches; and
7. Enquiries with Department of Defence.

If these searches do not reveal the location of the missing beneficiary, you will need to apply to the Court for a Benjamin Order to protect the Estate. If an estate is distributed without a Benjamin Order, it is important to note that there may be personal liabilities for the executors should a beneficiary emerge and request their distribution from the estate. A beneficiary may be entitled to sue the executor and/or the estate to recover their distribution.

Next Steps

A Benjamin Order is a complex but important step in completing the administration of an Estate in order to minimise the extent of any personal liability of the executor. It is important to remember that you also have an obligation to the identified beneficiaries to administer the estate without delay. As such, it is imperative that searches are done in a timely manner and an application for a Benjamin Order is made without delay.

Call Streeterlaw now to discuss your options and the risks involved in failing to properly administer the estate.

Written by Tamara Stevanovic

Tamara studied a combined degree in Law and Commerce at Macquarie University. She attained her Graduate Diploma of Legal Practice from the College of Law in 2021 and is currently undertaking her Masters of Law in Commercial Litigation. Tamara is passionate in taking a commercial approach to resolving all disputes in both commercial litigation and estate litigation matters and is a valuable asset to the Streeterlaw team

Call us on 02 8197 0105 to book an appointment with Tamara Stevanovic!