1
Q
Executor duties
A
2
Q
Protection for executor unknown beneficiaries
A
1. Advertisements under s.27 Trustee Act 1925
Executors can publish statutory notices (usually in:
- The London Gazette
- A local newspaper where the deceased lived/owned property).
- These notices call for any creditors or beneficiaries to come forward within a specified period (normally at least 2 months).
- If notices are properly published and the executor distributes the estate after the deadline, they are protected against later claims by people they didn’t know about.
- Unknown beneficiaries/creditors who appear later cannot sue the executor personally — instead, they can only pursue the recipients of the estate (the people who received the distribution).
2. Court applications for directions
- Executors can apply to the Chancery Division for guidance if uncertain about beneficiaries.
- A Benjamin order (from Re Benjamin [1902]) allows distribution of an estate on the assumption that a missing beneficiary is dead.
- If that person later turns up, the beneficiaries who received the distribution may have to pay them, but the executor is protected.
3. Indemnities and insurance
- Executors can ask beneficiaries to give an indemnity before distribution, in case someone later makes a claim.
- Sometimes missing beneficiary insurance is taken out, particularly in estates where family members are untraced.
3
Q
Protection for executor known but untraceable beneficiaries
A
1. Benjamin Order (Re Benjamin [1902])
- If a beneficiary cannot be traced, the executor can apply to the High Court for a Benjamin order.
- This allows the executor to distribute the estate as if the missing beneficiary were dead.
- If the beneficiary later reappears, they cannot sue the executor personally — they must claim from whoever received the distribution.
2. Trustee Act 1925, s.27 Notices
- Executors should still publish statutory notices (London Gazette + local newspaper).
- This protects them against unknown claimants, but on its own is not enough if the beneficiary is known but missing.
- However, it still demonstrates “reasonable steps” were taken.
3. Reasonable searches
Executors must take reasonable steps to trace the missing person, e.g.:
- Genealogical searches / probate researchers
- Enquiries with relatives, banks, or the DWP
- Advertising in newspapers
- If they have made reasonable efforts but still cannot find the beneficiary, the court is more likely to grant protection (Benjamin order or otherwise).
4. Indemnities from beneficiaries
- Executors can ask the other beneficiaries to give indemnities before distribution.
- This way, if the missing person later comes forward, the loss falls on the other beneficiaries (not the executor).
5. Missing Beneficiary Insurance
- A common practical solution is to take out missing beneficiary indemnity insurance.
- The estate pays a premium so that if a beneficiary later appears, the insurer covers the claim.
- This is especially useful when a court order seems disproportionate for a small estate.
In summary
If a beneficiary is known but untraceable, an executor is protected if they:
- Make reasonable efforts to trace them,
- Consider a Benjamin order (to treat them as deceased),
- Place s.27 notices to cover unknown claimants,
- Use indemnities or missing beneficiary insurance to shift risk away from themselves.
This ensures the executor won’t be personally liable if the missing heir turns up after distribution.
4
Q
Order of priority
A
With Will
