Missing Heirs

missing heirs 2People, including heirs, go missing for all sorts of reasons all the time. This of course presents a problem to an executor who must serve all heirs under the will, and anyone who would inherit on an intestacy, along with a copy of any application for probate with a copy of the will attached.

I am frequently contacted by enquiries on my website asking if there is any way in which one can in effect , be notified or a website that can be visited  as to  search someone’s death .

Regrettably, there is not. The problem is compounded by spouses taking another  spouses surname .

One advantage with inheritances is that people often will eventually hear word of the passing of a loved one and may seek out a possible inheritance .

The executor must use all reasonable means possible to try and determine the location and serve the perspective heir with notice of the probate application .

This will typically involve professional search locators who can essentially find anyone  as long as they “participate in society “by doing such things as filing tax returns, etc.

Many people do not.

The problem  out of the missing heir for the executor then becomes how does he or she finalize the estate so as to be discharged of his or her duties?


The answer lies in sections 39 and 40 of the Trustee act or the personal representative can obtain a discharge for the missing beneficiary  by obtaining an order that, the personal representative be at liberty to distribute the estate, including of the payment of the missing person share, but into court.

If the evidence of the missing their approaches something similar to a presumption of death order , in other words, very strong inference can be drawn  that the heir is “not about “so to speak get  a “Benjamin order”. If such order is granted, the trustee may then be discharged by distributing the estate, including the missing heirs portion, to the remaining beneficiaries.

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