Tracing Missing Heirs for an Ontario Estate: Who Does It and How

As estate trustee, you may discover that someone entitled to inherit cannot be found. Perhaps a sibling lost touch decades ago, or a beneficiary named in a will has moved without leaving an address. You cannot simply skip that person, and you may worry about delaying everyone else.

This article explains why the missing person matters, who typically does the searching, sensible steps to take, and where the court may come in. Details depend heavily on the facts, so use this as orientation before getting legal advice.

Why a missing heir holds things up

Before you file an application for a certificate, a signed copy must be sent to all estate beneficiaries, by email or by mail or courier to their last known address. For a small estate certificate, the signed application must reach everyone entitled to a share at least 30 days before filing.

So the question is not just where the person is. It is also who counts as a person entitled, and that depends on whether there is a will and what it says.

Who is entitled when there is no will

Under the Succession Law Reform Act, an estate without a will generally goes to the spouse and closest next-of-kin, and a common-law spouse does not inherit under the Act. For applying, the spouse or common-law partner has first right to apply, followed by a close adult relative such as a child, parent, grandchild, sibling, or nephew or niece.

If you are applying with no will, a bond is generally required, and it is generally double the estate's value unless a judge orders otherwise. How the shares divide among relatives is fact-specific, so ask a lawyer to map out your family tree against the rules.

Who does the tracing

Who carries out the search can depend on the estate and the people involved, so it is worth confirming with a lawyer. Many trustees start themselves and bring in a lawyer when the trail goes cold. Some also hire a private tracing firm. Whether to do so, and on what terms, depends on the size of the estate and the difficulty of the search.

Practical search steps

• List every person who might be entitled, using the will or the intestacy rules.
• Ask relatives, friends and the deceased's lawyer what they know. These are also the people who may know where a will is.
• Go through the deceased's address book, mail, cards, emails and photographs for names and addresses.
• Write to the last known address and keep copies, since service by mail or courier to that address is what the process contemplates.
• Keep a dated log of every search, who you contacted and what happened.
• Check whether someone else has already applied by contacting the court office where the deceased lived or held property.

A written record matters. If you later need to explain your efforts to a court or a beneficiary, a clear log makes your position much stronger.

Minors, incapable people and the court

If a beneficiary is under 18, the Office of the Children's Lawyer must be served when applying. For minor or incapable beneficiaries, the Office of the Children's Lawyer and the Public Guardian and Trustee may need to be served.

If documents are missing, court staff may ask for revised or additional materials. Matters that need a decision are reviewed by a judge, who may make an order. If someone files an objection, you must give notice to the objector and file a copy with an affidavit of service. When a search for a beneficiary has been exhausted, a lawyer can explain what court directions may be available in your circumstances.

Be careful about distributing around a missing person. Before distributing, a representative should get a CRA clearance certificate, and one who does not may be liable for unpaid tax up to the value distributed. Separately, the Estate Information Return is still due within 180 calendar days of the certificate, so a search should not make you miss it.

What to do next

• Write down exactly who you cannot find and why they are entitled.
• Start a search log and use every lead you have.
• Calendar the 180-day return deadline now.
• If the search stalls, or a minor or incapable person may be involved, speak with an estate lawyer before filing or distributing.
• If you consider a tracing firm, get the terms in writing and have them reviewed first.

Frequently asked questions