Author: Stacey Staios - Articling Student
Edited By: Ryan Carson

Administering an estate is often a straightforward process. Once an individual has passed away, the named executor has a duty to distribute the deceased’s estate according to the terms of their Will. This includes, but is not limited to identifying and locating the beneficiaries who are set to receive an inheritance. However, what happens when the executor is unable to locate a beneficiary?

 One of the most significant and sometimes onerous duties of an executor is to locate any and all beneficiaries who may have an interest in the estate. Courts have imposed an obligation on an executor to notify beneficiaries of the existence of a trust. In 2018, the Supreme Court of Canada confirmed an executor’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 that trust.1 
 
 Aside from this statement, it is unclear how far an executor must go to identify and locate potential beneficiaries. Under section 24 of the Estates Administration Act, the trustee must search the records of the Registrar General of Ontario and make other reasonable inquiries to identify the beneficiaries.2 
  
    To locate a missing beneficiary, the executor should start by reaching out to any family members or friends of the deceased to determine whether they have any insight as to where the missing beneficiary may be. If the executor is unsuccessful, they may post an advertisement for the missing beneficiary, perhaps in a local newspaper where the individual resided. Depending on the size of the estate, the executor may want to consider hiring a private investigator to assist in locating the beneficiary. However, the steps taken by the executor should be relative to the size of the estate. In the event that the executor, having gone through the options above, still cannot locate the missing beneficiary, they may choose to appear in court and seek to have the missing individual declared dead under the Declaration of Death Act, or declared an absentee under the Absentees Act. In this case, the court will expect the executor to show that they made reasonable efforts in attempting to locate the beneficiary. If proven, the court will allow someone else accept the bequest on behalf of the missing beneficiary.
    
  Another option is for the executor to appear in court and have the missing individual declared as predeceasing the testator. This would result in the missing beneficiary’s share being divided among the rest of the beneficiaries. The purpose of this order is to protect the executor in the event the missing beneficiary reappears in the future.3  They may be eligible to go after the other beneficiaries to get their share back, but that would be time consuming and costly. These orders are not commonly granted in Ontario, but they protect the executor’s liability.  
    
   Every executor has an obligation to ascertain beneficiaries when administering the estate. This obligation usually comes up when the deceased has left part or all of their estate to a category of beneficiaries, such as ‘any children of mine’, rather than naming specific individuals. This obligation may also arise when the individual has died intestate, namely without a will. The executor in this scenario would have to ascertain the beneficiaries who are next in line if members the deceased’s family are no longer alive.

Articles written by Stacey Staios:

Power of Attorney Disputes
Independent Contractor vs. Employee
Family Law Litigation - Part 2
Family Law Litigation - Part 1
Family Status Discrimination
Social Media Policies in the Workplace
Calculating Equalization Testamentary Capacity Aggravated and Punitive Damages Leaves of Absence in Ontario Co-Parenting In The Age of a Pandemic Corollary Relief Disability Accommodation in the Workplace
Estate Planning: A How To Guide Should You Consider A Cohabitation Agreement? What Is Wrongful Dismissal?

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References

¹ Valard Construction Ltd. v Bird Construction Co., [2018] 1 SCR 224, 2018 SCC 8
² Estates Administration Act, RSO 1990
³ Neville v Benjamin (1902) 1 Ch. 723