A question of identity

As a rule, the administration of an executry estate should go smoothly and it will not usually be necessary to seek outside assistance to enable the safe closure of the file. In some cases, however, the services of a specialist may be needed to help matters along. The tools and resources available to practitioners these days mean that almost any element of the executry administration process can be outsourced.

A typical example is where beneficiaries to the estate have gone astray and must be found. These problems tend to crop up relatively seldom. However, there are those practitioners who say that they are rather like buses – if you wait long enough for one, a whole string will arrive at once. Be that as it may, missing beneficiaries are easier to find now than they have ever been.

Whenever this problem crops up it raises a number of questions. For example: can’t the executors just buy a missing beneficiary indemnity instead of looking for the beneficiaries? Who is going to pay for the research needed to find the beneficiaries?

If you are not especially accustomed to the intricacies of locating missing and/or unknown beneficiaries, it usually makes sense to refer the work to someone who is – and that person will almost always be a specialist legal genealogist. However, the skills and disciplines that the genealogist brings to bear on missing beneficiary problems can be applied to other matters too.

Why not insure?

An attractive way of solving a missing beneficiary problem might be to buy a missing beneficiary indemnity (MBI) – the executry estate can pay for it and the missing beneficiaries’ shares in it can be distributed to the heirs with whom you are in touch. If the beneficiaries emerge independently, the MBI will put the executors in funds so that they can pay out to the heirs.

However, MBI insurers seldom take on these risks without being as sure as they can be that the policy will not become a claim – in other words, they like executors to have done as much research as possible into the whereabouts of the missing beneficiaries before going on risk. As a rule, they usually require sight of a professional genealogist’s report and conclusive documentary evidence (i.e. certificates of birth, marriage and death etc) before considering the risk at all. This satisfies them that all the steps that could be taken to find the missing beneficiaries actually have been taken – although, of course, the research will, in fact, often uncover the beneficiaries, thus potentially obviating the need for the MBI.

Whilst an MBI makes sense when you’ve looked hard for but cannot find beneficiaries, it seems more or less impossible to construct an argument that to buy an MBI as an alternative to looking for the missing beneficiaries at all is to the latter’s advantage. The underwriters take this view, too – they regard MBIs as a last resort where practitioners have really searched properly for the missing beneficiaries, but without success.

But who are they?

It may sound obvious but, if you need to find missing beneficiaries, the first thing to do is to establish who they are. The identity of legatees may not always be crystal clear from the will – a recent assignment involved us helping a client satisfy a legacy to “Bill, who used to clean my car”. The identity of heirs to intestate estates is often shrouded in mystery because (certainly if a genealogist has to be involved) they are usually the deceased’s distant relatives. However, a systematic, methodical approach and knowing what to look for – and how to interpret what you find – will almost always crack open even the most reluctant problem.

Building the audit trail

So, if it’s important to identify the missing beneficiaries, how is it done? Census returns can help in the reconstruction of Victorian families, but should be treated with caution – whilst they give a snapshot of the family on the day the census was taken, they are by no means incontrovertible evidence of the full extent of the family. The essential thing is to document the birth of the individuals concerned. This isolates them as the subjects of the enquiry. Once you have their birth certificate, it’s necessary to distinguish them from other people sharing their name combination.

You might have to document a couple of dozen events of birth, marriage and death before identifying a single beneficiary. This can sometimes be straightforward but, where you are researching extremely widely distributed family names (e.g. Macdonald, Thomson, Campbell etc) the investigation will inevitably slow down somewhat. On the other hand, a female subject taking an unusual surname on marriage can sometimes help move things along more quickly.

The researcher into Scottish estates has a slight advantage over his English equivalent: the information necessary to build up a family tree (contained in the certificates of birth, marriage and death) has been computerised. Whereas the Scottish databases contain enough information for the researcher to be confident that he is dealing with the correct family without sight of the certificates themselves, the indexes to the English registers do not. It is therefore necessary for the English genealogist to buy the certificate to ensure he has identified the right person. That is not to say that buying Scottish certificates is unnecessary. On the contrary: from a risk management perspective it is essential that, wherever possible, an audit trail permeates the investigation as a whole.

Finding the heirs

Once the identity of the beneficiaries is known, the investigation shifts emphasis to finding them. The tools to do this include publicly available information sources (e.g. electoral rolls) as well as databases comprising information which is not publicly available, but to which a well-resourced genealogist will have Data Protection Act licensed access.

As likely as not, beneficiaries will be found overseas. Given the amount of emigration out of the British Isles during the 20th century, it is hardly surprising that Australia, New Zealand, Canada and other Commonwealth nations are home to many of the heirs we locate. By the same token, when immigrants into Scotland (e.g. from central and eastern Europe) die intestate, it is often necessary to conduct research in the countries of origin to find the heirs to their estates. This does not necessarily, of itself, cause undue difficulties – although some foreign records are partially fragmented, an overseas case should not generally present substantially more than the usual professional challenge.

A frequent question is as to genealogists’ fees – should they be regarded as a general charge on the executry estate, or apportioned against particular shares in it? The general rule seems to be that the costs of these enquiries should be borne by the estate as a whole. Some genealogists operate a “contingency fee” approach to their costs. However, practitioners should be aware that the cost to the estate (and therefore to the located heirs) of working this way is often much higher than working on a recorded hourly rate basis. In addition, the “contingency fee” agreements under which the genealogists’ fees are charged to the beneficiaries’ shares in the estate are thought to be unenforceable in law (see the April 2003 Journal at pp 45-46).

A few too many

Other benefits to practitioners of genealogists’ work include establishing the devolution of title to land, locating liferents and fiars (and trustees), and tracking down shareholders and the beneficiaries of wound-up pension schemes. An unusual set of instructions came from a university professor, suspicious of the time off a junior member of his staff had taken ostensibly to attend grandparents’ funerals. A check with her previous employer revealed a pattern which, if true, would have meant that she had at least seven grandparents. Research showed that she only had four – and that three were still alive. Whilst some people leave employment hurriedly, citing a wish to spend more time with their family, in her case it was true…

Nicholas Beetham LLB is Relationship Manager – Trusts and Estates at Title Research. He has written and lectured extensively on the subject of missing beneficiaries and the apportionment of costs of finding them or insuring against their independent emergence. Title Research is sponsoring The Law Society of Scotland Update at the Hilton, Dundee, on 14 September 2004.