Missing Beneficiary: What Executors Must Do

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.

The Executor’s Duty to Make Reasonable Enquiries

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:

• Family and social contacts: Asking other family members and friends who might know the beneficiary’s whereabouts
• Last known address: Writing to the last known address by recorded delivery
• Electoral roll: Checking the open electoral register at the local council for registrations at the last known or nearby addresses
• Social media: Searching LinkedIn, Facebook, and other platforms for the person’s name (particularly if they have a distinctive name)
• GP or other professional contacts: In some circumstances, a letter through a GP or professional contact may be appropriate
• Death records: Checking the General Register Office death index to determine whether the beneficiary may have died — particularly relevant for older beneficiaries

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.

Professional Tracing Agencies

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:

• Success-only fees: The most common arrangement for heir tracing — the agency charges nothing upfront and takes a percentage (typically 10% to 33%) of the located person’s share. This aligns the agency’s incentives with success and avoids cost to the estate if the search is unsuccessful.
• Fixed fees: Some agencies charge a fixed fee for their search regardless of outcome — typically £300 to £1,000 for a domestic search.
• Hourly rates: Used for complex international searches where the outcome is more uncertain.

The cost of engaging a tracing agency is a legitimate expense of the estate and can be paid from estate funds. Before instructing an agency on a success-only basis, check that the terms are reasonable and that the fee is calculated as a percentage of the missing person’s own share — not as a percentage of the whole estate.

The Benjamin Order: Court Permission to Distribute

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:

• Evidence of all steps taken to trace the beneficiary
• A statement of the proposed assumed basis for distribution
• A hearing in the Chancery Division (usually straightforward if the evidence is well-presented)

The legal costs of a Benjamin Order application (typically £3,000 to £8,000 in solicitors’ fees) are a legitimate expense of the estate. However, for smaller estates where the missing beneficiary’s share is modest, the cost of the application can sometimes exceed the share being protected. In those cases, missing beneficiary insurance is usually the more practical route.

Paying Into Court as an Alternative

Instead of obtaining a Benjamin Order, an executor can pay the missing beneficiary’s share into court under the Trustee Act 1925. This discharges the executor’s personal liability for that share. The money is held by the court until the beneficiary is found (or until the legal time limit for claims passes), at which point the beneficiary can apply to retrieve 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

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.

This is typically the fastest and most cost-effective route for protecting distribution in straightforward cases. Premiums are usually 0.5% to 2% of the value of the missing share (sometimes less for older searches where the beneficiary is likely to have died), and a policy can often be obtained within a few days from specialist legal indemnity insurers.

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.

Missing beneficiary insurance is now widely used in estate practice and is often quicker and cheaper than court proceedings. Many solicitors and professional trustees regard it as the default route when all reasonable tracing steps have been exhausted.