What Does an Executor Do When a Beneficiary Cannot Be Found in BC?

Part of an executor's job is getting the estate to the people entitled to it. That is hard when a beneficiary has moved, lost touch with the family or simply cannot be found. The estate cannot simply wait forever, and you cannot just ignore the gap.

In British Columbia, the Wills, Estates and Succession Act (WESA) and related rules give you some tools. This article explains the main ones in plain language. The right path depends on the facts, so a lawyer can confirm what fits your estate.

This article covers the law of British Columbia.

Start with a careful search and the right notices

An applicant for a grant of probate or administration must make a diligent search and inquiry for the deceased's property and liabilities. That duty is about the estate's assets and debts, but a careful, documented approach is just as sensible when you are trying to find a person who is owed something from the estate.

Before applying for a grant, you must deliver a notice of proposed application (Form P1) to the people the Supreme Court Civil Rules require. Where there is a will, that includes each beneficiary under the will. Where there is no will, it includes the intestate successors and creditors whose claim exceeds $10 000. If you cannot find someone who must receive the notice, that is a problem to deal with early, and legal advice is worth getting.

• Check the will, the deceased's papers, address books and emails for contact details.
• Ask relatives, friends and other beneficiaries who may know where the person is.
• Keep a written record of every step you take, with dates.
• Keep copies of letters, messages and any replies.

Why you cannot simply distribute early

A personal representative must not distribute the estate within 210 days after the grant of probate or administration is issued, unless the court orders otherwise. This gives time for claims to surface.

There are exceptions. With a will, early distribution is allowed if all beneficiaries with an interest and everyone who could bring a wills-variation claim consent. With no will, it is allowed if all intestate successors entitled to a share consent. A missing beneficiary cannot consent, which is why a separate rule exists for that situation.

Even after the 210 days, distribution needs court consent if a proceeding is under way about someone's status as a beneficiary or intestate successor, a wills-variation claim, or anything else that may affect the distribution.

Early distribution when someone is unlocated

Early distribution can go ahead without some consents if you set aside the gifts and shares of the unlocated beneficiaries, plus enough to cover variation claims. In other words, the missing person's entitlement is held back while the rest of the estate moves forward.

This carries real risk. If loss results, you are liable unless you can show that all the required amounts were set aside. Executors are also warned that distributing while debts remain unpaid may make them personally liable for those debts. Before any distribution, a legal representative must also obtain a clearance certificate from the Minister of National Revenue certifying that amounts owing are paid or secured. Distributing without one makes you personally liable for the unpaid tax, up to the value of the property distributed.

Selling a gift and holding the proceeds, and minors

If a beneficiary cannot be found within 12 months, the personal representative may sell the property gifted to them and hold the net proceeds in trust. This can help when the gift is an item or property that is costly to keep, but whether a sale makes sense depends on the asset and the will.

A different rule applies to children. If a minor is a beneficiary or intestate successor and there is no trustee or trust, you must pay or transfer the minor's share to the Public Guardian and Trustee in trust for the minor.

Getting directions and what to do next

An executor, administrator or trustee may petition the court for its opinion, advice or direction on a question about managing the estate, without starting any other proceeding. A missing beneficiary is the kind of question where court direction can give you more certainty. These Trustee Act powers apply to personal representatives through WESA.

If you make an honest mistake, the court may excuse a trustee, wholly or partly, from personal liability for a breach of trust if they acted honestly and reasonably and ought fairly to be excused. That is a possible relief, not a guarantee, so do not rely on it in place of careful steps.

• Record every search step and keep the records.
• Do not distribute to others until you know the rules that apply.
• Check the 210-day period and any exceptions.
• Get the CRA clearance certificate before distributing.
• Talk to a lawyer about setting aside amounts, a sale, or a court petition.

Frequently asked questions