Inheritance Tracing in Ontario: How Missing Heirs Are Located

Inheritance tracing is the work of finding people who may be entitled to a share of an estate but cannot be reached. It might be a cousin nobody has heard from, a child of an estranged relative, or a beneficiary whose address changed years ago. Sometimes an estate trustee does the search. Sometimes a commercial tracing business does it and then writes to the person it finds.

You may be reading this because a stranger's letter says you could inherit, or because you are an estate trustee or relative trying to find someone. Either way, it helps to know who has a legitimate claim, what the estate trustee is obliged to do, and what to confirm before you sign anything.

Why estates need to find every beneficiary

An estate trustee holds the deceased person's property for the people entitled to it, subject to the deceased's debts. That duty includes making sure the right people are paid. A trustee who gives notice to creditors is generally protected from claims they had no notice of, but that protection does not cover heirs, next of kin or beneficiaries claiming as such.

In practical terms, advertising for creditors does not protect a trustee who distributes the estate without setting aside a missing beneficiary's share. That is why trustees often try hard to trace a person before they distribute.

Who counts as an heir when there is no will

When there is no will, the Succession Law Reform Act sets the order of entitlement. With no issue, the spouse takes everything. With issue, the spouse takes a preferential share and then a portion of the rest, and the remainder goes equally among the issue. With no spouse or issue, the estate goes to the parents, then to brothers and sisters.

The preferential share is $350,000 for deaths on or after March 1, 2021, and $200,000 for deaths before that date. A common-law spouse does not inherit under these rules, although a dependant support claim may be open to them.

Tracing is often needed here because the estate trustee may have to work out which relatives exist and where they are. Where the will names the beneficiary, the search is usually simpler: it is a matter of locating a named person.

What an heir hunter's letter means

A tracing business may find you through public records and write to say you are connected to an estate. The letter may be genuine. It may also say very little, and ask you to sign an agreement before you learn which estate it is or how much is involved.

• Ask which estate it concerns, the name of the estate trustee, and how the business knows you are connected.
• Read any agreement carefully, including how the business is paid and whether it claims a share of what you receive.
• Do not send original identity documents or banking details until you have confirmed the estate is real.
• Remember that you can usually contact the estate trustee directly, without a go-between.
• Be cautious about any pressure to sign quickly.

Whether a particular agreement is fair or enforceable depends on its wording and the facts, so a lawyer can review it before you sign.

What happens if a beneficiary cannot be found

If an estate trustee cannot locate someone, they may apply to the Superior Court of Justice for the court's opinion, advice or direction without starting an action. Where a judge passes a trustee's final accounts and finds money belonging to a minor, a mentally incapable person or a person whose address is unknown, that money must be paid into court.

Payment into court under these provisions is a sufficient discharge for the money paid. Separately, a court may relieve a trustee of personal liability for a breach of trust if the trustee acted honestly and reasonably and ought fairly to be excused. That is a court decision, not something a trustee should count on.

Points that affect a found heir

What to do next

• Keep the letter and any envelope, and do not sign until you understand it.
• Confirm the estate and the estate trustee's name independently.
• Gather identity and family documents in case you are asked for them.
• If you receive ODSP, report the expected inheritance and get advice on protecting your benefits.
• If you are the estate trustee, keep a written record of every step taken to find the person.
• Speak with a lawyer if an agreement, a missing share or a court application is involved.

Frequently asked questions