How should an estate trustee proceed when they cannot identify or locate all of the heirs to an estate?

In some cases, a challenge arises where a will does not identify the beneficiaries by name, but by class or some other description. For example, a will may leave the residue of the estate to the testator’s “nieces and nephews” without specifically naming them. Where a deceased died without a will, the estate trustee may be uncertain who is the next of kin.

Estate trustees have a duty to “endeavor to locate all those who were to benefit under the will” (Re Short Estate, 1941 CanLii 421). However, it is not entirely clear how far an estate trustee must go to identify and locate potential beneficiaries. Under section 24 of the Estates Administration Act, RSO 1990, c E22, the trustee must conduct searches of the records of the Registrar General of Ontario and make other “reasonable inquiries” to identify the heirs. While courts have not had to offer much guidance on what constitutes “reasonable inquiries,” it has been noted that “casual inquiries” will not be enough (Re Short Estate). In addition, s. 53 of the Trustee Act, RSO 1990 c T23 was enacted to prevent trustees from claiming that they discharged their duty to “endeavor to locate beneficiaries” by merely posting an advertisement.

Estate trustees should be diligent in identifying and locating heirs to avoid exposing themselves to liability for negligence. An estate trustee should keep detailed records of steps taken in their search and the results. Some of the steps an estate trustee may consider taking when attempting to identify or locate beneficiaries of the estate include:

• Contacting those who may have knowledge of the deceased’s affairs, such as family, friends, neighbours, and professionals with whom the deceased had dealings (accountants, lawyers, and investment advisors, for example);
• Going through the deceased’s personal belongings, including any diaries and correspondence they kept;
• Advertising online or in a newspaper in the place where a missing beneficiary would be likely to reside;
• Reviewing online databases like ancestry.com, cyndislist.com or rootsweb.com before attempting to obtain records from a government repository as confirmation; and
• Hiring a professional researcher or genealogist to name and locate missing or unknown family members.

An estate trustee may be guided by the size of the estate and the size of the missing beneficiary’s share when considering how much time and resources to expend on the investigation.

If heirs cannot be identified or located, an executor or known beneficiary may commence a court application for advice and/or directions prior to distributing the estate. Among other relief, the estate trustee may seek to declare a missing beneficiary dead under subsection 2(3) of the Declarations of Death Act, 2002, SO 2002, c.14. As an alternative, the person can be declared an absentee under the Absentees Act, RSO 1990, c A3. In the case of an absentee, the court may appoint an individual to act as committee of the absentee’s property.

In estates that are obviously large, there may be more responses to the estate trustee’s efforts to find family members than was expected or hoped for. The notorious Jeffrey Epstein died with an estimated net worth of $600 million. Since his death on August 10, 2019, 130 people have come forward claiming to be his offspring. Epstein was never married and was not known to have children. Ascertaining whether these claimants are Epstein’s children will be a priority if/when the validity of his will and testamentary trust is determined.