Who should receive our brother's inheritance if he can't be found?

3 answers | Last updated: Nov 24, 2016
Birdland1950 asked...

My brother can't be found, and it says in our father's will that "in the event that the above person or persons predeceases me, I give that same money or personal property to his or her surviving benficiaries."

What does that mean? We don't know if he is alive or not. Our father has his children named in the will, and he left us cash. Who will get my brother's share if we can't find him or if he is dead?

Expert Answers

Amy Shelf is an attorney specializing in estate planning and probate for individuals and families of all means.

Usually, if a person named to take property in a will cannot be located, that property is distributed as if that person died before the person who made the will—in this case, your father.

Often, however, the person responsible for administering the will, called an executor or administrator, must hold the assets that should have gone to the missing person for a period of time (frequently as long as five years or more) before distributing the assets he or she was named to get. That way, if the missing person is living, he or she can claim the property.

Before a beneficiary will be considered missing, the probate court will require that you describe what you have done to locate him or her—and may also ask you to take additional steps, such as hiring a private investigator if you have not hired one already.

If, in fact, your brother remains missing, the question becomes this: “Who are his surviving beneficiaries?” Unfortunately, it is not so easy to say.

It may be that the will should be interpreted so that “surviving beneficiaries” is equivalent to his “heirs at law.” This seems more likely if, in fact, your brother is never found but you cannot establish that he died. Heirs at law are determined by state law, but usually are spouse and children—and if there are no such relations, then parents, then siblings, with other relatives named down the line.

If, on the other hand, it is established that your brother died, his “surviving beneficiaries” may be determined by his will if he left one, or any probate proceeding that took place to distribute his property.


Community Answers

Geo2015 answered...

All factually true -- but action wise the client needs help and advice to locate the missing heir, the brother... What actionable steps to take to get that process started!

Geo2015 answered...

Let’s hope he is alive. And a missing heir such as your brother – if he is alive - needs to be located and alerted ASAP by one of the major probate & estate research companies… probate research investigation services or “heir locator services”... They seem to have vast forensic genealogical contacts. Established probate investigation services or probate and estate research firms are able to utilize the probate and genealogical research databases and up to date records besides property and other skip tracing databases... to locate missing heirs, locate a missing inheritance, and locate unknown beneficiaries… as well as prevent fraudulent inheritance claims. The big boys can provide your attorneys and executors the ability to start connecting legitimate heirs to unclaimed inheritance assets. I'm sure if it were me locating a missing heir, or locating a missing estate or unclaimed inheritance assets, I’d want forensic genealogy researchers and skip tracers to be locating my missing heirs or unknown heirs... That is, missing heir to an unclaimed estate. I know enough about probate research investigation to know at least that a company like, for example, the American Research Bureau, the www.arb.com firm or maybe the Kemp group, or www.heirfinder.com firm in Salt Lake City, Utah would be needed... I don't understand all the factors for locating missing heirs and beneficiaries, but I would surely want to hire one of the super experienced heir location services, or get a referral from an estate law firm for a probate & estate research company that does case evaluations for trust and estate lawyer. That is the type of estate and probate research firm, the best at locating unclaimed inheritance assets or locating missing heirs and beneficiaries, that I would have complete confidence in.