Q I am the executor of my parents’ estate. The will provides that money be distributed to some nieces and nephews which is fine except I cannot find one nephew. For the past two years I have asked family and friends as to his whereabouts and have searched social media sites. At what point can I simply give up and give the funds to the other beneficiaries?

A You have two issues to be concerned here but let us tackle the missing heir problem first. As executor, you are required to exercise due diligence in searching for heirs if they are not readily found. Usually heirs and potential heirs of estates seem to magically materialize when someone dies but it looks like that is not the case with your estate! You have taken good initial steps by asking family, friends and searching social media. You can also write to the nephew’s last known address and hope it gets forwarded, you can run an ad in the local paper where you know the heir resided last or you can hire a private investigator or heir search firm.

If using an heir search firm, be aware that the fees are either paid from the estate or from the share that goes to the missing heir.

You will want to get clarification on payment details before engaging a firm.

Also, ask your probate attorney if you need court permission to use estate funds in an heir search before you spend such funds.

If these actions fail and if the heir has been missing for five years or more, you can ask the probate court to declare that the heir is dead at which time you will be able to either distribute the funds to the other beneficiaries or you may need to actually probate the heir’s estate.

It depends on how your parent’s will was written.

While missing heirs does not happen very often, when putting together our own estate plans we may want to consider asking our estate planning attorney to include language that says something like, “If a named beneficiary of my estate cannot be located, I direct my trustee or executor to use estate funds to retain an heir search firm to locate the missing heir.”

You can state an amount you feel is reasonable to expend on such a search and always make sure to articulate what happens with the funds if the heir predeceases you or cannot be located.

Alternatively, your attorney can add language in your document to the effect that if, after your diligent search for an heir, such heir is not found, then that heir’s share is to be distributed to the other heirs named.

If this route is taken, it is important for the executor (or trustee) thoroughly documents their file with regard to the search that was performed. For an extra measure of protection, the executor or trustee can petition the court for its approval of your action to go ahead with the distribution to the remaining heirs.

A second problem of which you may not be aware is the fact that an executor or trustee is required to distribute a “pecuniary devise,” within one year after the testator’s date of death.

This means that if your parent’s will reads something like, “I leave $10,000 to my nephew John Jones,” that $10,000 must be given to John Jones within one year of your parents’ death.

If you fail to do so, the gift can accrue steep interest. Worse yet, if a judge decides that you did not have good reason to delay the distribution, the judge may make you, personally, pay the interest!

If you have gifts that should go to other nieces and nephews, those should be completed while you search for the missing nephew.

Liza Horvath has more than 30 years of experience in the estate planning and trust fields and is the president of Monterey Trust Management, a financial and trust management company. This is not intended to be legal or tax advice. Questions? Email liza@montereytrust.com or call (831)646-5262