Searching for Missing Heirs and Beneficiaries & the Legal Process
An executor has a duty to give notice to all beneficiaries and other heirs of a probate case. Heirs and beneficiaries have not only a right to know of the status of probate proceedings, but also certain rights to object to or otherwise participate in probate proceedings. Therefore, if an heir or beneficiary is missing, an executor must make a good-faith effort to locate them.
Searching for Heirs and Beneficiaries
An executor is generally required to identify all beneficiaries and heirs at the beginning of the probate process so that they may be notified. If an heir or beneficiary is missing, an executor is obligated to act with due diligence by reasonably attempting to locate and contact them. For example, a court may require that an executor publish notice of the probate case in a local paper for a certain period of time. The executor may also be responsible for taking other reasonable steps to locate and contact missing heirs and beneficiaries, such as contacting other known relatives, friends, or partners, searching last known addresses, searching property records, contacting past employers, searching online (including social media), or hiring a private investigator.
Methods of Locating Missing Heirs
1Contacting known relatives, friends, or partners
2Searching last known addresses
3Searching property records
4Contacting past employers
6Hiring a private investigator
7Publishing a notice in a local newspaper
State law may define what reasonable steps may be for an executor who cannot locate or contact a beneficiary or heir, but whether an executor has satisfied their obligation might be within the discretion of the court. Furthermore, an executor may be required to ask the probate court’s permission before spending the estate’s funds to locate a missing beneficiary or heir.
Can Probate Proceed When an Heir or Beneficiary Is Missing?
So long as the court finds that the executor has undertaken a good-faith effort to locate and contact a missing beneficiary or heir, the probate process may proceed without the beneficiary or heir. If an executor ultimately cannot locate or contact a missing beneficiary or heir, they will likely need to file a sworn statement with the court detailing their attempts. They may also need to petition the probate court to continue proceedings, or later close the case, without the beneficiary or heir.
If there is a will, it may specify how a gift should be handled if a beneficiary remains missing throughout probate. If there is no will, or if the will does not speak to missing beneficiaries, state law may determine how a probate case will proceed with a missing beneficiary or heir. In some states, the court will treat the missing beneficiary or heir as if they were dead and distribute any award according to the will or state law for a deceased beneficiary, or intestate succession laws for a deceased heir.
Missing heir rules may apply even if the heir or beneficiary is not actually missing, but is refusing to accept an award or otherwise participate in probate proceedings.
Alternatively, the court may order that the inheritance of the missing heir or beneficiary be held in trust or otherwise protected for a certain amount of time or until the missing beneficiary or heir comes forward. The court may appoint a guardian ad litem or trustee to oversee the assets. If the beneficiary or heir does not collect the award, their heirs may be permitted to petition the court to release the award to them. Otherwise, the award may eventually be transferred (or “escheated”) to the state. Most states will hold the award for another period of time to give the missing beneficiary or heir one more chance to come forward before permanently taking control of the assets.