What Happens If an Executor or Beneficiary of a Will Is Missing?

Legal meeting about issues like a missing will executor or beneficiary

Like any other people, the individuals named as executors and beneficiaries in the Will won’t likely live or stay in the same place. They may move interstate or overseas for whatever reason. It’s also possible to lose track of their addresses and contact details over the years. That isn’t an issue—until it’s time to honour the Will and administer the deceased person’s estate. 

Interested parties should go to great lengths to contact the named executors and beneficiaries of the Will. That effort is necessary in case they need to prove to the court that those individuals are, indeed, missing. The process for finding an executor may vary slightly from finding a missing beneficiary—and each poses a different scenario to estate administration. 

Finding a Missing Executor

An executor’s role is to distribute the person’s assets following their passing. The executor is very important in a Will, and it is a great idea to select an executor who is likely to be around to carry out their role. It’s also good to appoint someone else as a secondary executor.

When searching for a missing executor, interested parties must prove they act in good faith. They must prove they have taken reasonable steps by showing proof of recent activities or communication. This can include but is not limited to:

  • Reaching out to the missing executor’s family members and friends (including genealogy searches)
  • Posting relevant advertisements in local newspapers and other publications
  • Seeking assistance from government agencies for necessary contact information
  • Contacting charities, sporting clubs or other organisations that the missing executory may be a member of

If you carried out the steps, such as the above, but still failed to find the missing executor, you could go to court and apply to have the executor passed over. Once approved, the role of executor can be passed to the next appropriate party, which is usually a beneficiary.

What If the Nominated Person Is Deceased?

If the nominated executor dies before they can perform their role, the second executor named in the Will assumes the duty of administrating the estate. If the Will fails to name a second executor, any competent adult can apply to the court to handle the estate administration. This individual doesn’t need to be a beneficiary to apply as a Will executor or administrator.

Locating a Missing Beneficiary

Now, what if the one missing is the beneficiary? Tracking down a missing beneficiary must also be done in good faith. Interested parties must prove to the court that the beneficiary is truly missing before taking any further action. They can apply for a “Benjamin” order, which allows the executor to distribute the estate to the known beneficiaries. 

The court can grant a "Benjamin" order for a missing beneficiary.

The “Benjamin” order removes the executor’s liability for estate distribution should the missing beneficiary come forward in the future. Any “missing” beneficiary may approach the court to reclaim their interest that was already distributed to other beneficiaries. But the court will likely look at practical considerations before granting their request to reclaim benefits from the estate.  

Consult with Top Lawyers in Adelaide

Locating a missing beneficiary or executor can take a lot of your time, energy and resources. It’s best to consult your case with Adelaide’s best estate lawyers. They can guide you through the complex processes of proving to the court that you search the executor or beneficiary in good faith. And if you don’t find them, experienced estate lawyers can assist you in applying to court.

What Happens If an Executor or Beneficiary of a Will Is Missing?

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