An estate trustee who distributes without accounting for a beneficiary can be held personally liable to that person if they later come forward, which is why a beneficiary nobody can find will hold an Ontario estate open indefinitely unless something is done about it. Two remedies exist and they do different jobs. A Benjamin order permits the estate trustee to distribute as though the missing beneficiary predeceased the testator, and protects the trustee from liability for having done so. Payment into court under section 36 of the Trustee Act puts the missing person's share into the hands of the Accountant of the Superior Court of Justice so the administration can be completed, though for an ordinary missing adult beneficiary that route runs through the court rather than by affidavit. This is different from the problem of a beneficiary who can be found and simply will not cooperate.
Why Can the Estate Trustee Not Just Distribute?
The duty is to identify every beneficiary who may be entitled and to distribute accordingly. A trustee who distributes without properly accounting for a beneficiary can be personally liable to that person if they later appear, and that exposure does not depend on the trustee having known.
The creditor notice does not help here. Section 53 of the Trustee Act allows an estate trustee who has advertised for claims to distribute having regard to the claims of which they have notice. That protection runs against unknown creditors. It does not protect against beneficiaries, and it does not extinguish a claim against the people who received the money.
Holding the estate open is not a neutral option either. Carrying costs accrue, the other beneficiaries are kept waiting, and an estate trustee who does nothing for years faces complaints of a different kind. Our guide to an executor who is not communicating or distributing sets out how that looks from the beneficiaries' side.
What Counts as a Reasonable Search?
The court's analysis on both remedies centres on the sufficiency of the trustee's efforts. There is no prescribed checklist, and what is proportionate depends on the size of the share and what is known about the person. What the court is assessing is whether an honest, reasonably skilful and prudent trustee would have done more.
A defensible search generally includes:
The deceased's own records: address books, correspondence, tax returns, and the email account, which is frequently the most productive single source.
Family enquiries, documented, including of people the family regards as unhelpful.
Public records: land registry and corporate searches, obituaries, and cemetery records for the person and their relatives.
Online and social media searches, recorded with dates and results.
A professional heir search or tracing agent, where the share justifies the cost, and advertising in the last known locality.
A written record of every step, including the searches that produced nothing. The negative results are the evidence.
Time matters as well as effort. In one Ontario case the court accepted that roughly eighteen months between the death and the application was sufficient time to have elapsed alongside the search that had been done.
What Is a Benjamin Order?
It takes its name from Re Benjamin; Neville v. Benjamin, a 1902 English decision in which one of thirteen children named in a will could not be found. The court proceeded on the footing that the missing child had predeceased the testator, allowing the estate to be distributed among the others.
In Ontario the order permits the estate trustee to distribute as though the missing beneficiary died before the deceased, without waiting indefinitely for a certainty that may never arrive. It is available where the trustee has made extensive enquiries and cannot determine whether the beneficiary is alive, or died before the testator.
What it does and does not do is the point to understand.
Benjamin order
Payment into court
Effect
Distribute as though the beneficiary predeceased
The share is paid into court
Protects the trustee
Yes
Yes, on the terms of the order obtained
Extinguishes the missing person's claim
No
No
Where the missing person recovers from
The beneficiaries who received the money
The funds held in court
Estate can be closed
Yes
Yes
How it is obtained
A court application
A court order, or on a final passing of accounts
A Benjamin order protects the trustee, not the recipients. If the missing beneficiary reappears, their recourse is against the people who received the distribution, and recovering from them is not straightforward.
These orders are granted sparingly, because the court is proceeding on a presumption rather than on proof. They have been made in Ontario, and the reported cases turn on how thorough the search was.
How Does Payment Into Court Work?
Section 36 of the Trustee Act contains more than one route, and they are not interchangeable. Choosing the wrong one is the usual reason a payment-into-court attempt stalls.
Route
What it covers
How it is done
Section 36(1)
Trust money generally
An order of the Superior Court of Justice authorising payment into court
Section 36(4)
On a final passing of accounts, money belonging to a person whose address is unknown
The money is paid into court, with the judge's order or report supplied to the Accountant
Sections 36(6) to (6.4)
Money payable to a minor or to a mentally incapable person
An affidavit filed directly with the Accountant
For an ordinary missing adult beneficiary there is no direct affidavit route. The affidavit-to-Accountant mechanism is specifically for money payable to a minor or to a mentally incapable person, and reaching for it because it is the simplest procedure on the page is a common error. Where the beneficiary is a competent adult who cannot be found, the trustee is looking at a court order under section 36(1), or at section 36(4) on a final passing of accounts where the person's address is unknown.
That makes the passing of accounts the natural vehicle. A trustee who is going to have to account anyway can deal with the missing share within the same proceeding, which is usually cheaper than running a separate application.
The court will want evidence of the search. A trustee who has not made real efforts risks a costs award rather than a favourable order.
The money remains available to the beneficiary. If they surface in ten years, they claim the funds from the court. The estate, meanwhile, has been wound up and the other beneficiaries have been paid. The statutory discharge language in section 36 should not be assumed to apply without qualification to a missing adult; what protects the trustee is the terms of the order actually obtained.
What Are the Alternatives?
A declaration under the Absentees Act or the Declaration of Death Act may be available where the circumstances support it. A declaration of death carries consequences beyond the estate, which is why a Benjamin order is frequently the more contained solution.
A disclaimer resolves the issue where the beneficiary can be reached but does not want the gift. A disclaimed gift falls back into the estate and is dealt with under the will. The disclaimer must occur before the beneficiary has taken any benefit, and it should be recorded in writing even though it can arise less formally.
Where the search is for unknown next of kin rather than a named person, the intestacy rules define the class being searched for. Our guide to dying without a will in Ontario sets out the order of entitlement. Where no entitled person exists at all, property can pass to the Crown under the Escheats Act, 2015.
Where This Goes Wrong
Confusing a missing beneficiary with an uncooperative one. A beneficiary who is reachable but will not sign a release, provide identification, or accept a cheque is a different problem with different remedies, and our guide to dealing with an uncooperative beneficiary covers it. Applying the wrong remedy wastes an application.
Distributing the missing share among the others informally. This is the exposure the remedies exist to remove, and doing it without an order leaves the trustee personally on the hook.
Relying on the creditor advertisement. Section 53 protection runs against unknown creditors. It is not a defence to a beneficiary's claim.
Searching without recording. The application depends on evidence of the search, and a trustee who spent two years looking but kept no record is in a weaker position than one who spent three months and documented everything.
Spending more than the share is worth. A professional tracing agent is proportionate on a substantial share and disproportionate on a small one. Where the share is modest, dealing with it on a passing of accounts is generally more sensible than an extended search followed by a separate application.
Reaching for the affidavit procedure because it looks simpler. The direct filing with the Accountant under section 36 is for money payable to a minor or to a mentally incapable person. It is not the route for a competent adult whose whereabouts are unknown, and using it wastes the attempt.
Waiting for someone else to solve it. Nothing about a missing beneficiary resolves itself, and the passage of time weakens the search rather than strengthening the trustee's position.
If an estate is being held open because one beneficiary cannot be found, you can book a free call to work out which of the two routes fits and what evidence of search will be needed.
Frequently Asked Questions
What is a Benjamin order in Ontario?
A court order permitting an estate trustee to distribute an estate as though a missing beneficiary predeceased the deceased, even though that cannot be confirmed. It comes from the 1902 English decision Re Benjamin; Neville v. Benjamin and has been granted by Ontario courts, though sparingly. It protects the estate trustee from liability for distributing on that basis. It does not extinguish the missing beneficiary's underlying claim, which lies against the people who received the money.
How long does an executor have to look for a missing beneficiary?
There is no fixed period. The court examines the sufficiency of the efforts made rather than the time that has passed, although the two are related. In one Ontario case a court accepted that roughly eighteen months between the death and the application was enough, alongside the search that had been carried out. What matters most is a documented record of what was tried, including the searches that produced nothing.
Can an estate be closed if a beneficiary cannot be found?
Yes. One route is payment into court under section 36 of the Trustee Act, so that the beneficiary's share is held by the Accountant of the Superior Court of Justice and the administration can be completed, with the funds remaining available if the person later comes forward. For a missing adult beneficiary this is generally done by court order under section 36(1), or under section 36(4) on a final passing of accounts where the person's address is unknown, rather than by filing an affidavit with the Accountant, which is the procedure for money payable to a minor or a mentally incapable person. The alternative is a Benjamin order permitting distribution as though the person had predeceased.
Does advertising for creditors protect me from a missing beneficiary's claim?
No, and this is a common and costly assumption. The protection under section 53 of the Trustee Act runs against unknown creditors, allowing an estate trustee who has advertised to distribute having regard to the claims of which they have notice. It does not protect against a beneficiary, and it does not extinguish a creditor's claim against the people who received the distribution either.
What happens to an inheritance nobody claims?
Where the share is paid into court it stays there, available to the entitled person. Where an intestate estate has no entitled next of kin at all, property can pass to the Crown under the Escheats Act, 2015. Between those two positions, the estate trustee's job is to establish which one applies, and that is a matter of searching the intestacy classes properly rather than assuming nobody exists.
What if the beneficiary is found but refuses their inheritance?
That is a disclaimer, and it is a different situation. A beneficiary can decline a gift, in which case it falls back into the estate and is distributed under the will. The disclaimer has to occur before the beneficiary has taken any benefit from the gift, and although it can arise informally, obtaining it in writing avoids an argument later about whether it happened.
This article provides general information about Ontario law and is not legal advice. Speak with a lawyer about your specific circumstances.