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An executor has a legal duty to make reasonable enquiries to locate all beneficiaries before distributing the estate. If a beneficiary cannot be found after exhausting reasonable steps — family contacts, electoral roll, social media, tracing agencies — the options include giving notice under section 27 of the Trustee Act 1925, applying for a Benjamin order from the Chancery Division to allow distribution on an assumed basis, paying the missing beneficiary’s share into court, or obtaining missing beneficiary insurance to protect the distribution. This guide describes the law of England and Wales; Scotland and Northern Ireland have their own procedures.
Missing beneficiaries are more common than you might expect. Wills written decades ago may name people who have moved abroad, changed their name, or lost contact with the family. The executor cannot simply ignore an entitled beneficiary — but the law provides practical routes to completing the distribution while protecting everyone involved.
An executor who distributes an estate without making genuine efforts to locate a missing beneficiary can be personally liable to that beneficiary if they later come forward. The law requires “reasonable enquiries” — a term that courts interpret contextually, but which generally includes:
These steps should be documented carefully. If the matter ever comes before a court (either as part of a Benjamin Order application or a later claim by the missing person), you will need to demonstrate the steps you took and why they were reasonable in the circumstances.
If initial personal enquiries are unsuccessful, a professional tracing agency — sometimes called an heir tracer or genealogist — can be instructed. These firms specialise in locating individuals using databases and specialist search techniques that are not available to members of the public.
Fee structures vary between firms. The three you will encounter are a success-only percentage of the located person’s share, a fixed fee payable whatever the outcome, and hourly rates for complex or international searches. Heir tracing is an unregulated commercial market and no official body publishes rates, so the only reliable figure is a written quote from the firm you are considering.
The cost of engaging a tracing agency is a legitimate expense of the estate and can be paid from estate funds. On a success-only basis, check whether the fee is calculated as a percentage of the missing person’s own share or of the whole estate — the difference is large, and it is the beneficiary who bears it.
Document every step
Whatever tracing route you take, keep a detailed written record: dates of all enquiries made, responses received, agencies instructed, and results. If a Benjamin Order application becomes necessary, or if the missing person later comes forward, this documentation is your evidence that you acted properly.
Before any of the more elaborate options, there is a statutory step that costs very little and is often skipped. Section 27 of the Trustee Act 1925 lets a personal representative give notice of an intention to distribute “in the Gazette, and in a newspaper circulating in the district in which the land is situated”, requiring anyone interested to send in particulars of their claim within a period of not less than two months. Once that period has expired, the executor may distribute having regard only to the claims of which they then had notice.
The notice is usually described as a creditor notice, but the section is not limited to creditors: it covers any person interested, and a beneficiary the executor does not know about is within it. It does not help with a beneficiary you do know about and cannot find — you have notice of that claim — which is why the rest of this guide exists. It also does not stop anyone following the property into the hands of a person who received it other than as a purchaser. See our guide on advertising for creditors in the Gazette.
If all reasonable enquiries have been exhausted and the beneficiary still cannot be located, an executor can apply to the Chancery Division of the High Court for a Benjamin order — named after the 1902 case Re Benjamin.
A Benjamin order allows the executor to distribute the estate on an assumed basis — for example, on the assumption that the missing person has died without issue before the testator, or that they simply cannot be found. The order provides legal protection to the executor: even if the missing person later appears and claims their entitlement, the executor is not personally liable for distributions made under the order.
However, the missing person retains the right to bring a claim against the beneficiaries who received their share. The executor is protected; the estate may not be.
A Benjamin order application typically requires:
The legal costs of a Benjamin order application are a legitimate expense of the estate. No official body publishes what one costs, so treat any figure you are quoted elsewhere as an estimate rather than a published rate. The point that matters is the proportion: where the missing share is small, the application can cost more than the share it protects, which is why insurance is often used instead.
Instead of obtaining a Benjamin order, an executor can pay the missing beneficiary’s share into court under section 63 of the Trustee Act 1925. This discharges the executor’s personal liability for that share. Practice Direction 37 sets out the procedure: a witness statement describing the trust and naming the people interested in the money, filed at Chancery Chambers at the Royal Courts of Justice, a Chancery district registry, or the county court hearing centre where the case is proceeding. The money is held by the Court Funds Office until the beneficiary claims it.
This route is administratively straightforward but has the disadvantage of tying up funds for an indefinite period. It is most appropriate where the amount is significant and the executor wants certainty of their own discharge rather than relying on insurance coverage.
Missing beneficiary insurance is an indemnity insurance policy that the estate (or the executor) takes out to cover the risk of the missing beneficiary coming forward after distribution. The insurer agrees to meet any valid claim the missing person makes against the estate or the executor, up to the policy limit.
It is a commercial product from specialist legal indemnity insurers, and a policy can usually be arranged quickly. Premiums are priced case by case and no official body publishes them, so the only meaningful figure is a quote: the size of the missing share, the age of the search and the strength of the tracing evidence all move it.
Insurers will require evidence of the steps taken to trace the beneficiary before they will issue a policy. The greater the effort to trace, the more favourable the premium. If no effort has been made at all, insurers may decline to quote or charge a significantly higher premium.
Insurance is a commercial arrangement, not a statutory protection. It pays a claim; it does not extinguish the missing person’s entitlement, and it does not stand in for the section 27 notice or for the reasonable enquiries an executor is expected to have made.
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