Tracing beneficiaries whilst testator alive

We act for the deputy managing a lady’s finances. The deputy is also one of her executors.

The lady’s husband recently died which means her estate will pass to a few individuals on her death. Apart from one of them, we don’t have any information about the rest of the beneficiaries.

Would it be a reasonable use of the lady’s funds to instruct tracing agents to try and track down the beneficiaries in the Will or should this be left until her death? She has sufficient capital to meet her care costs for the next 15 years and the beneficiaries all appear to have been in the UK.

Samir Hussain

We were recently dealing with a similar case, but there was no Will. We instructed a genealogist to assist the Deputy in an application for a statutory will. We thought this was in P’s best interests. I am not convinced doing so while she is alive and there is a Will meets the same test? It is more in the executor’s best interest when distributing the estate. I suppose the costs all come out of the same pot, but personally I would wait.
Iain Cameron

I tend to disagree with Iain Cameron as to the timing, particularly as he says, the monies probably come out of the same pot. I think you can justify advancing the monies for a genealogist at this time, because if nothing else, the longer you wait the more cold may be the trails in due time, and some of the Beneficiaries may have died in the meantime causing more costs and delays. By establishing the names and address, and contact details of the beneficiaries now, I believe time and costs will be saved in due time. I resume that the Deputy has spoken to the Lady concerned in a lucid moment to see if she has any recollection as to the Beneficiaries.
Peter Double / Probate Resealing Services.

A deputy’s overriding duty is to P, and they are required to act in P’s best interests.

If the deputy were to initiate investigations to ascertain the whereabouts of the various named beneficiaries, is this in P’s “best interests”?

If the deputy were not also an executor of the estate, would she still intend to try and trace the name beneficiaries now, or leave it to the executor when P eventually dies. I suspect in many cases it would be left to the executor. This seems to me to be a more natural division of the roles, as the deputy should concerned with what happens during P’s lifetime.

Whilst I can see an argument that, if P were competent, she would want her executors to be able to readily contact the beneficiaries, does this necessarily meet the “best interests” test. The arbiter would likely be the OPG, which may question, and disallow, the expenditure shown in the deputy’s annual accounts.

I suggest the present circumstances might be put to the OPG and its views sought. This will protect the deputy from becoming personally liable for the various costs associated with attempts to trace the beneficiaries, should the OPG be unwilling to approve the deputy’s accounts after the costs had been incurred.

Paul Saunders

This thread demonstrates the difficulties that can arise when acting as, or on behalf of, Deputies. Best interests is not clearly defined and certainly means different things to different people. Personally, I would take a view on matters depending on the likely cost involved in the context of the estate size. I am not convinced that the OPG will provide a definitive positive or negative response, and an application to the Court seems to be a bit over the top in the present circumstances. Arguably, applying to the Court is more for the best interests of the Deputy that it is for the Patient?

Haroon Rashid
I Will Solicitors Ltd

Thanks for your comments, whilst I have a different view from Paul’s as to what is or is not in the best interests of the Patient, I agree with the suggestion of approaching the OPG and seeing what happens. It will in any event be a useful guide for others who may well have similar problems.

I also do not have an idea as to the likely tracing costs, but assuming they are reasonable (say less than £2,000 in this case - I do not have the matter in front of me but believe it was stated the patient has sufficient monies for the costs of care for several years) I would have thought that it is reasonable to proceed now. If such tracing costs are likely to be much higher, then clearly the opinion of the OPG should be sought.

One problem of course is who are we trying to trace - long lost brothers and sisters or more remote issue - second cousins, nephews and neices; and how many of them?

The final point of course is will the OPG give any guidance at all or simply sit on the fence?

Peter Double / PRS

I consider it inappropriate to do this now. The Will may never even be proved. It is definitely a post death matter

Simon Northcott

I appreciate that I am coming a little late to this discussion.

Although a will might be considered to determine how a deceased’s estate is to be divided, at a much more basic level it is an expression of how that person wishes their estate to be divided.

Moreover that wish was expressed at a time when they were of sound mind.

As time passes and the testator get older, siblings and other more remote relatives die and the links to their descendants get more tenuous and sometimes broken. Tracing those relatives is therefore likely to get more difficult as time passes and sometimes tracing them may become impossible. Delaying tracing those relatives until the testator actually dies may cause the testator’s expressed wishes to be frustrated. It would therefore seem to me that in tracing those relatives at an earlier stage the deputy is carrying out the lady’s wishes.

Clearly if there is no will then no wish has been expressed and so that argument fails if there is going to be an intestacy.

It would seem to me that the main argument against tracing relatives at an early stage is the risk of creating expectations that might, in the event, not be fulfilled and or creating tensions within the family.

Ian McKeever

Ian Mckeever & Co Consulting Actuaries

In reply to Simon, this is why we have lawyers - we all have different view points and interpretations of the law.

I seriously doubt that the Will may not be proved, especially in view of what has been stated so far by the initial enquirer. I expect that the Will, will be proved in due time, but only time will tell.

I certainly think that the OPG enquiry route (as already suggested) is a good route to take at this time.

Peter Double / PRS

Thank you for all of the helpful responses to my posting.

There is a Will in place and the beneficiaries appear to be friends of the testator - there are no close family members. Unless a statutory Will is made for the lady then the terms of her current Will will take effect on her death as she lacks the capacity to make a new WIll. The process of tracing the beneficiaries will need to be undertaken at some point. I think an approach to the OPG is probably a good start to gauge their view on the use of her funds.

Samir Hussain

It will be very helpful if you tell us the result in due course. If IHT is involved, the expense paid before death will reduce the estate where an executor’s expense would not

Terry Hill
The Fry Group