Do you have a cluttered basement? Do you know where you keep all of your important papers? If I asked you to find you marriage certificate, could you retrieve it in five minutes? Over our lifetime, we acquire our most precious items that we want to give to our children and our grandchildren, and sometimes we don't wait until death to pass these precious items on for others to enjoy. It is the duty of your estate trustee to compile an inventory of all of your assets and distribute those assets according to your Will.
An estate trustee is the person, or one of the people, that you name in your Will to take care of all of the things you left undone during your life. In particular, the estate trustee (sometimes referred to as the executor) is appointed through your Will. It is the estate trustee's responsibility to carry out the terms of your Will and ensure your final wishes are respected. Being an estate trustee is a hard job. It requires patience, sound judgment, tact, empathy, and sometimes perseverance.
Who is a beneficiary?
First and foremost, your estate trustee must determine who is a beneficiary under your Will. If you have appointed a family member as your estate trustee, and other family members are named as the beneficiaries, then determining who is a beneficiary under your Will is relatively simple. However, if some of your beneficiaries have predeceased you and your Will says, "I leave one share of the residue of my estate to my cousin Mary, and in the event Mary predeceases me, then divide such shares among her issue in equal shares." Under the assumption that Mary predeceased you, then your estate trustee will have to determine if Mary had any children, and if so, how many children, and then locate each child. If your estate trustee has difficulty in identifying Mary's children, the he or she should conduct some general searches of historical and current public records. Additionally, there are an abundance of genealogical websites and search engines that may assist the estate trustee with their preliminary searches.
If your estate trustee can't find a beneficiary
If you have a very large extended family or you haven't updated your Will in a very long time, complications may arise in locating the beneficiaries named in your Will. For example, if under your Will, you decide to leave $5,000 to your cousin Mary, but over the years, Mary has moved several times and you don't have your cousin's current address or phone number, then a difficult task lies ahead for your estate trustee. He or she has a duty to make reasonable efforts to find any missing beneficiary. It is not enough to just place an advertisement in the local newspaper to alert beneficiaries of their potential entitlement in the estate. Estate trustees have to become detectives to find the missing beneficiaries. Your estate trustees have to search through personal papers and electronic address books, and if these searches don't produce any information, then the next steps are:
- contacting the beneficiary's family members;
- checking his or her last known address and talking to neighbours;
- checking with the last-known employer;
- contacting friends and ex-spouses;
- visiting places where the beneficiary has been known to have contacts, such as associations where he or she might have been a member (i.e. a church or gym)
- advertising in the local newspaper where the beneficiary was last known to live; and
- looking through social media, Facebook, LinkedIn, Twitter or Instagram to see if the beneficiary can be located online.
If all else fails, the estate trustee may have to hire a private investigator to find the potential beneficiaries.
If you still can't find a beneficiary
The estate trustee should also look to the Will to see if the Will says anything about what to do in the situation that a particular beneficiary can't be found. It is possible that the deceased put a time limit on looking for the missing beneficiary and named someone else to receive the property in the event the beneficiary can't be found. However, if the Will does not say anything and the beneficiary still can't be found within a reasonable time, the estate trustee cannot divide the estate among only those beneficiaries that can be found. The estate trustee should bring an application to pay the money into court so that if the missing beneficiary is eventually found, then he or she can claim their inheritance from the court.
If you can't find the original Will
It is the duty of your estate trustee to find the original signed version of your Will, because this version is probated by the court. There is a legal presumption that if the original signed version cannot be found upon your d4eath, then it is presumed that you destroyed it with the intent of revocation. In situations where a prospective beneficiary believes the Will was never revoked but has simply gone missing, the beneficiary can bring a court application to prove the photocopy of the signed Will.
If only a photocopy of the signed Will can be found, then the estate trustee can present this copy to the court, and if anyone with a financial interest in the estate consents to the photocopy of the signed Will as reflecting the wishes of the deceased, then the court will accept the Will.
Problems may arise where people who have a financial interest in the estate do not unanimously agree that the photocopy of the signed Will represents the last wishes of the deceased. In that situation, the estate trustee will have to hire a lawyer and based on evidence, the courts will have to decide if the photocopy of the signed Will represents the last wishes of the deceased.
If you can't find the assets
As part of the general duties of an estate trustee, the estate trustee has to make a list of all of the assets that were owned by the deceased on the date of death. If under the Will, the deceased said that "Aunt Mae's china" was to be given to a particular beneficiary, the estate trustee has to determine if the deceased still ha "Aunt Mae's china." If the deceased does not have the listed item on the date of death, then that gift fails, and the beneficiary does not receive anything.
In locating beneficiaries or assets, an estate trustee will be held to the standard of reasonable efforts. If the search indicates that beneficiaries exist, then the estate trustee has a duty to locate and notify those beneficiaries of their entitlement under the estate. However, if the search does not yield any results, then it would be prudent for the estate trustee to obtain a court order to pay the funds into court before finalizing and distributing the estate assets.
Marcia A. Green is an associate lawyer with the Ottawa law firm of Nelligan O'Brien Payne LLP (www.nelliganlaw.ca) and a member of the Wills and Estates Practice Group.
[This article was originally published in the July/August 2015 issue of Fifty-Five Plus Magazine.]