What Happens If a Beneficiary Cannot Be Found in Ontario?
The estate has been administered. The assets have been collected, outstanding liabilities have been addressed, and the executor is ready to distribute the inheritance.
There is just one problem.
One of the beneficiaries cannot be found.
Perhaps the beneficiary moved overseas decades ago. Perhaps the family has lost contact with a distant relative. In some cases, nobody knows whether the beneficiary is even alive.
What happens now?
Can the executor distribute the estate to everyone else? Must the missing beneficiary’s share be held indefinitely? Or can the Court authorize the administration to proceed?
In Ontario, an estate trustee cannot simply disregard a beneficiary because they are difficult to locate.
However, the law provides mechanisms for resolving the problem without necessarily leaving an estate open indefinitely.
An Executor Has a Duty to Identify and Locate Beneficiaries
One of an estate trustee’s fundamental responsibilities is ensuring that estate assets are distributed to the people legally entitled to receive them.
That responsibility includes taking reasonable steps to identify and locate beneficiaries.
An executor cannot simply distribute a missing beneficiary’s inheritance among the remaining beneficiaries because nobody knows where that person lives.
The obligation is particularly important where the missing individual has a clearly established entitlement under the will.
Distributing the estate incorrectly can expose the executor to personal liability, even where the mistake was unintentional.
The issue is therefore not simply whether the estate trustee wants to complete the administration.
It is whether the trustee can do so without improperly prejudicing the missing beneficiary’s rights.
What Constitutes a Reasonable Search?
There is no single search procedure that applies to every estate.
The steps required depend on the circumstances, including the information available about the beneficiary, the value of the inheritance and the likelihood that further inquiries will produce results.
Reasonable efforts may include:
• Contacting relatives who may have current information
• Reviewing correspondence and records belonging to the deceased
• Searching public records and available online databases
• Contacting the lawyer who prepared the will
• Investigating previous addresses or places of residence
• Making inquiries in other jurisdictions where the beneficiary may have lived
• Publishing appropriate notices
• Retaining a professional investigator or tracing service
An executor should also maintain a clear record of the steps taken.
If the matter ultimately comes before the Court, simply stating that the beneficiary could not be found will rarely be sufficient.
The Court will want to know what was done to locate the individual and why further efforts are unlikely to succeed.
What If the Beneficiary Lives Outside Canada?
International beneficiaries can present additional challenges.
An individual may have moved to another country many years before the deceased’s death, leaving little information about their current whereabouts.
The executor may have an outdated address, an old telephone number or only a general understanding of where the beneficiary once lived.
In those circumstances, reasonable inquiries may need to extend beyond Canada.
Depending on the circumstances, searches may involve foreign public records, local notices, professional tracing services or inquiries through relatives living abroad.
The existence of an international element does not eliminate the executor’s responsibility to account for the beneficiary’s entitlement.
However, it may affect what constitutes a reasonable search and whether further efforts are proportionate to the amount involved.
Can the Executor Distribute the Other Beneficiaries’ Shares?
Potentially, yes.
The inability to locate one beneficiary does not necessarily mean every other beneficiary must wait indefinitely.
An executor may be able to distribute amounts that are safely available to the remaining beneficiaries while retaining the missing beneficiary’s entitlement and sufficient funds for outstanding estate obligations.
The appropriate approach depends on the terms of the will, the financial position of the estate and whether the proposed distributions would create additional risk.
For example, where an estate has four beneficiaries entitled to equal shares, the executor may be able to preserve the missing beneficiary’s share while considering distributions to the other three.
However, the executor must be satisfied that the proposed distribution is legally appropriate and does not compromise the estate’s ability to meet its obligations.
The distinction between a prudent interim distribution and an improper final distribution can become important.
Questions about the timing of distributions also arise in the context of interim distributions in Ontario.
Payment Into Court May Provide a Solution
One option available under Ontario law is payment of the missing beneficiary’s entitlement into Court.
Section 36 of Ontario’s Trustee Act provides mechanisms through which trust funds may be paid into Court.
Importantly, section 36(4) specifically addresses circumstances where, following the passing of final accounts, money remains payable to a person whose address is unknown.
Where the statutory requirements are satisfied, the funds may be paid into the Superior Court of Justice to the credit of the person entitled to receive them.
This allows the money to be preserved without requiring the estate trustee to continue holding it indefinitely.
However, payment into Court is not simply a convenient way to dispose of an inconvenient obligation.
The executor must follow the applicable procedure and demonstrate that the circumstances justify the proposed payment.
Where a formal accounting is required, the process may intersect with a passing of accounts.
What Is a Benjamin Order?
Another important remedy is known as a Benjamin Order.
A Benjamin Order takes its name from the English decision in Neville v. Benjamin, decided in 1902.
The remedy permits an estate trustee, in appropriate circumstances, to distribute an estate on the basis of an assumed state of facts concerning a missing beneficiary.
For example, the Court may authorize distribution on the assumption that a missing beneficiary died before the testator, where the evidence justifies proceeding on that basis.
The order does not necessarily establish that the missing beneficiary is legally deceased.
Rather, it allows the estate trustee to administer and distribute the estate according to the assumptions authorized by the Court.
The order can protect the trustee from personal liability for distributing the estate in accordance with its terms.
Importantly, it does not necessarily extinguish the missing beneficiary’s underlying rights against those who ultimately received the property.
That distinction is critical.
When Will an Ontario Court Grant a Benjamin Order?
Benjamin Orders are not granted simply because an executor has been unable to locate someone.
The Court must be satisfied that sufficient inquiries have been undertaken and that the circumstances justify proceeding without definitive confirmation of the missing beneficiary’s status.
Relevant considerations may include:
• The length of time the beneficiary has been missing
• The circumstances surrounding the disappearance
• The searches undertaken
• Whether professional investigators were retained
• The likelihood that further inquiries will succeed
• The amount of money involved
• The expense and delay associated with continued searching
• Whether another remedy would adequately address the problem
The Court must balance the interests of the missing beneficiary against the practical need to administer the estate.
Two Ontario decisions demonstrate how that analysis operates.
Steele v. Smith: When the Search Was Sufficient
In Steele v. Smith, 2018 ONSC 4601, the Ontario Superior Court of Justice considered an application involving a beneficiary who could not be located.
The estate trustee had undertaken extensive efforts to find the missing individual.
Those efforts included inquiries through family members, online searches and the involvement of a professional tracing service.
Despite those steps, the beneficiary remained missing.
The Court was satisfied that the inquiries were sufficiently thorough and that further searching was unlikely to produce a different result.
A Benjamin Order was granted, allowing the estate to be distributed on the basis that the missing beneficiary had predeceased the testator.
The decision demonstrates that an executor who can establish a comprehensive and reasonable search may obtain relief allowing the administration to proceed.
It also illustrates the importance of having evidence of the search itself.
Durand v. Hamilton: When More Work Was Required
The result was different in Durand v. Hamilton, 2024 ONSC 2914.
The estate trustee sought a Benjamin Order concerning a beneficiary believed to have lived in Hungary.
Although attempts had been made to locate the individual, the Court was not satisfied that the available avenues of inquiry had been adequately pursued.
There were outstanding questions about the beneficiary’s circumstances and additional steps that could reasonably be taken.
The Court declined to grant the requested order at that stage.
Instead, the matter was adjourned so further inquiries could be undertaken.
The distinction between the two decisions is instructive.
An executor cannot simply demonstrate that a beneficiary is difficult to find.
The executor must demonstrate that reasonable efforts have been made to resolve the uncertainty.
A Benjamin Order Is Not the Same as Declaring Someone Dead
This is another important distinction.
A Benjamin Order may permit an estate to be distributed on an assumed set of facts without conclusively determining whether the missing person is alive or deceased.
A declaration of death is a different legal remedy governed by separate statutory requirements.
The two procedures should not be treated as interchangeable.
In many estate administrations, the objective is not to obtain a definitive declaration concerning the missing person’s status.
It is to determine whether the estate can be distributed safely despite the uncertainty.
The appropriate remedy depends on the evidence and the nature of the problem.
What If the Missing Beneficiary Eventually Reappears?
The possibility that the beneficiary may later be located is one reason these applications require careful consideration.
Where money has been properly paid into Court, the beneficiary may be able to pursue the funds through the applicable Court process.
Where a Benjamin Order has authorized distribution on an assumed set of facts, the missing beneficiary’s potential remedies may be different.
Depending on the terms of the order and the circumstances, the beneficiary may retain rights against those who received the property.
The estate trustee’s protection arises from complying with the Court’s order, not from a general assumption that the missing person’s rights have disappeared.
This is why obtaining appropriate relief before distributing the estate can be so important.
Can the Executor Simply Hold the Money Indefinitely?
An executor may initially retain the missing beneficiary’s entitlement while reasonable efforts are made to locate them.
However, indefinite retention is not necessarily an appropriate long-term solution.
Estate trustees have obligations to administer estates diligently and bring the administration to a proper conclusion.
Keeping an estate open for years can generate unnecessary expenses, prolong accounting obligations and delay final distributions.
The longer the problem continues, the more important it becomes to consider whether a Court-supervised solution is appropriate.
The objective should be to preserve the missing beneficiary’s rights while avoiding unnecessary delay and expense for the estate as a whole.
What Should an Executor Do Before Seeking Court Intervention?
Before bringing an application, the executor should carefully assess the available evidence.
That includes determining:
• The precise nature of the beneficiary’s entitlement
• Whether the beneficiary’s identity is known
• Whether the uncertainty concerns their address, their whereabouts or whether they are alive
• What information is available about their last known circumstances
• What searches have already been completed
• Whether further reasonable inquiries remain available
• Whether the inheritance can be preserved separately
• Whether payment into Court or a Benjamin Order is the more appropriate remedy
The distinction between a beneficiary whose address is unknown and a beneficiary whose survival is uncertain may be legally significant.
An application should be structured around the actual problem rather than simply requesting broad relief because the executor wants to close the estate.
A Practical Perspective
Missing beneficiary cases create a difficult balance.
An executor cannot disregard someone who is legally entitled to inherit.
At the same time, the law does not necessarily require an estate to remain open indefinitely while unsuccessful searches continue.
Ontario courts recognize that estate trustees sometimes need assistance resolving these situations.
The available remedies include payment into Court, applications for directions and, in appropriate cases, Benjamin Orders.
The central issue is whether the executor has acted diligently, preserved the beneficiary’s interests and obtained appropriate authority before making a distribution that may be difficult or impossible to reverse.
For executors, the most important lesson is straightforward.
Do not confuse an unsuccessful search with a sufficient search.
The quality of the investigation, the evidence supporting it and the remedy ultimately sought can determine whether the estate is permitted to move forward.
Where the uncertainty cannot be resolved through reasonable inquiries, obtaining Court directions through Estate Litigation may be the appropriate next step.