As the executor, I can't find a beneficiary. How do I move forward to get probate and settle the estate?

I am the executor of my grandfather's will. My sister and I are the only beneficiaries. I need to probate the will in order to sell his condo. I've been trying to contact my sister for two years, but she wants nothing to do with family anymore.

Dexter

Dexter

Tofino, BC

As executor, in order to sell your grandfather's condo, you need to probate his will. The land title office will ask you to provide a grant of probate to transfer the condo. 

Under BC law, before applying for the probate grant, the executor needs to send a notice of their intention to apply for the grant to certain people, including every beneficiary named in the will.

Finding the missing beneficiary

Here are some practical steps you can take to find a missing beneficiary:

  • contacting the beneficiary’s family members

  • checking their last known address and talking to their neighbours

  • checking with their last known employer

  • asking at places where they’re known to have contacts (for example, clubs, gyms, churches)

If, after taking these steps, you still can't find the beneficiary, you can arrange a trace. This is where you hire someone to locate a person's whereabouts. There are several companies in BC that offer tracing services. Whichever company you choose to work with, they will want as much information about the beneficiary as you can provide.

If you can’t find the missing beneficiary

If the trace is unsuccessful, you will need to apply to court under rule 25-2 for an order either dispensing with notice or notifying the missing beneficiary in a different way. For example, a court could allow you to notify them by posting an advertisement in a local newspaper. Once you have the court order, you then can proceed to apply for the grant of probate.

After you've received the grant of probate, your job is to settle the estate. If the beneficiary is still missing when it comes time to distribute the estate, you'll have to figure out what to do with their share. This needs to happen before you can finalize the estate and be discharged of your duties as executor.

Under sections 39 and 40 of the Trustee Act, an executor can obtain a discharge for a missing beneficiary by obtaining an order that the beneficiary’s share be paid to the court. If the funds remain in court for five years or more, they will be paid out to a not-for-profit entity. 

One more thing. There’s a law that applies if the will-maker made a specific gift to the missing beneficiary. The executor must wait at least 12 months from the date of the grant of probate. If the executor still can’t find the beneficiary, they may sell the property and deduct costs for the storage, transportation and sale of the property. The executor can then pay the net amount of money into court.

Michael Scott

Michael Scott

Clark Wilson LLP
  • Reviewed for legal accuracy in January 2022
  • This information applies to British Columbia, Canada

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