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

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 Answer

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.