What Happens If an Estate Beneficiary Can't Be Found in Alberta?

You have been named as executor, or you are a family member helping with an estate, and one person who should receive a share cannot be found. The rest of the estate may be ready to wind up, but you cannot simply keep the share, hand it to someone else, or ignore it.

Alberta law gives executors several tools for this problem. This article explains them in plain language, what happens if the person is never found, and where an executor's personal risk sits. Each estate is different, so a lawyer can confirm what fits yours.

This article covers the law of Alberta.

Why a missing beneficiary is a problem for the executor

An executor must act honestly and in good faith, follow the will, and distribute the estate as soon as practicable. The core tasks include identifying assets and liabilities, paying debts, and distributing and accounting for the estate.

A missing beneficiary sits in the middle of those duties. The share is not yours to keep, and distributing it to the wrong person could expose you to a claim. That is why the steps below involve the court or the Public Trustee rather than informal workarounds.

If a beneficiary has died before the person who made the will, that is a different situation with its own substitution rules, and it is not the same as a beneficiary who is simply missing.

Serving the Public Trustee and asking for directions

Where a missing person is interested in an estate, the applicant must serve the Public Trustee with notice of the application.

An executor, as a trustee, may also apply to the court for directions on any matter of fact, law or discretion. A trustee who follows the directions is discharged from the duty on that matter. Directions can be a practical way to get a clear instruction on how to treat a share you cannot deliver.

• Serve the Public Trustee when a missing person has an interest in the application.
• Apply to the court for directions on how to deal with the missing person's share.
• Keep a record of every effort you make to find the person.

Court-authorized distribution and paying money into court

A trustee may apply for a court order authorizing distribution of trust property among the persons entitled. The order does not prejudice the right of a creditor or claimant to follow the trust property.

A trustee may also pay trust money or securities into court. A court clerk's receipt releases the person depositing from further obligations on those assets.

On a passing of accounts, the court may direct payment to the Public Trustee or another trustee of money owed to a minor or missing person. A person interested in the estate may apply for an order requiring accounts to be formally passed, and so may the personal representative.

What happens if no one is ever found

If funds remain in an estate the Public Trustee administers and beneficiaries cannot be located, the funds eventually go to Alberta's provincial treasurer. Beneficiaries who turn up later can still claim their share.

On an intestacy, if no individual is entitled to the estate, the Unclaimed Personal Property and Vested Property Act applies to it. A person's right to claim under Part 6 of that Act is preserved. How that Act works in detail, including any search requirements, is worth confirming with a lawyer.

Your personal risk and what to do next

A trustee who distributes wrongly can face personal liability. The court may relieve a trustee wholly or partly from personal liability for a breach of trust if the trustee acted honestly and reasonably and ought fairly to be excused. That is a decision for the court, not something to count on.

• Do not distribute the missing person's share on a guess.
• Document your search: who you contacted, when, and how.
• Serve the Public Trustee where a missing person is interested.
• Consider applying for directions, authorized distribution, or payment into court.
• Speak with an estate lawyer before choosing a route.

Frequently asked questions