True crime podcasts about the disappearance of missing persons are intriguing. But not only for the way they investigate leads and dig into someone’s past to find out why they might have disappeared, but for the issues they raise about missing persons and their effect on the process of administering a deceased estate. In this article Amanda West explores explores some of the implications of a beneficiary also being a missing person.
The legal personal representative (LPR) of a deceased estate has a fiduciary duty to administer the estate in accordance with the law. This duty includes taking all reasonable steps and conducting the necessary searches to identify and locate the beneficiaries of the estate.
Where a beneficiary can’t be identified or located, the LPR of the estate can apply to the court for an order to proceed with the distribution of the estate assets. The order, known as a Benjamin order, permits the LPR to go ahead with the distribution and protects them from any liability should the missing beneficiary later appear.
Importantly, the order doesn’t affect the legal rights of the missing beneficiary. If they later appear and there is still some of the estate undistributed, then they are entitled to claim what is rightfully theirs from that property. Alternatively, if the whole of the estate has been distributed, then they are entitled to trace the distributions from the estate to the other beneficiaries and seek to recover their inheritance directly from those persons.
Missing person presumed dead
People go missing for three main reasons: they meet with foul play leading to their disappearance; they are involved in a sea or air accident (such as the disappearance of MH370, where the passengers’ remains have not been found); or they choose to disappear on their own accord to start a new life with a new identity.
Dealing with the disappearance of a loved one can be distressing for their family, especially when the missing person leaves behind assets and liabilities that need to be dealt with in their absence.
In situations where search efforts are exhausted, that missing person can be presumed dead. A declaration of their death can be sought so that a death certificate can be issued to enable the administration of their estate. At law, a presumption of death is made when:
- the missing person has been absent for more than 7 years;
- the missing person has been unheard from by any person who would otherwise expect to hear from that person; and
- all due inquiries into the whereabouts of the missing person have been made.
However, satisfying these facts alone is not always enough to prove the death of a missing person. As we have recently experienced here at Snedden Hall & Gallop, obtaining a declaration of death is not a straightforward process and depends significantly on the requirements of the authorities of the jurisdiction in which the missing person last domiciled. The process can be further complicated when the missing person is assumed to have disappeared overseas. In those cases, assistance from the Department of Foreign Affairs, INTERPOL and the relevant policing and immigration authorities of the country in which the missing person is assumed to have disappeared is needed.