2. Take out missing beneficiary insurance 4. Court intervention
They could distribute the estate to
the known beneficiaries and take out
insurance against the missing beneficiary
turning up and claiming. This will avoid the
beneficiary claiming against the PR as the
insurance policy will satisfy their claim.
The amount insured must be large enough
to cover the value of the legacy itself as
well as any interest. Finally, the most time consuming and
expensive option. The PRs could apply
for leave from the court to distribute the
estate under Part 64 of the Civil Procedure
Rules 1998. This is known as a ‘Benjamin
Order’ (from the case of Re Benjamin).
This allows the PRs to distribute the estate
on the presumption the court makes the
order on. This presumption is usually that
the missing beneficiary has predeceased
the testator leaving no issue.
3. Distribute with an indemnity
The PR could distribute the funds to
the known beneficiaries and obtain
an indemnity from them. If the missing
beneficiary comes later forward makes
a claim the PR will be able to recover the
money from them. This is more appropriate
for small sums and should be done with
caution. There is always the possibility
that the missing beneficiary will claim
and the indemnifying beneficiaries will be
unable to meet the costs.
Before such an order can be granted the
PRs must show the court what steps they
have taken to establish the beneficiary is
still alive and to trace them. The court will
only grant the order if they agree that all
that can be done, has been done.
If the missing beneficiary later turns up
they can try and claim their share from
the other beneficiaries, however the PRs
are protected.
Written by Siobhan Rattigan, The Society of Will Writers and Estate Planning Practitioners
The Society of Will Writers
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