Probating And Managing Estates For People Who Disappear
When we talk about estate planning, we make one fundamental assumption: When it comes time to probate the will, or do what the trust says, or for other estate documents to take effect, someone will have died. But sometimes we don’t actually know if someone has died.
It is often the case that someone passes away in a catastrophe, such as a building collapse, a plane crash, or some other disaster, and the person and their remains are not found. Other times, there is no one disastrous event—someone just disappears.
Although family members in this situation will certainly have more important things on their minds, from an estate planning standpoint the question becomes: how do you distribute property or carry out the wishes of estate documents if you have no tangible scientific proof that someone has passed away?
Determining Someone is Presumed Deceased
California has set a five year time limit to determine whether someone has passed away. Death is presumed if someone has not been heard of in five years. After that time period, family, or the next of kin, can file a court action asking a court to declare that the person has passed away. Almost any immediate family member can file the petition, but a friend or acquaintance cannot.
The person must not have been “seen or heard from” within five years by people who are likely to hear from the (presumed) deceased. The absence can’t have a satisfactory explanation and there must have been a diligent search, although that term is not defined in the law.
In the event of a catastrophic event, the law requires that a court find that the person’s body could not be recovered, and that evidence places the presumed deceased at the site of the event at the site and time of the catastrophic event.
Once the court makes that finding, and the person is presumed to have passed away, the estate can proceed to be probated. The probate process happens the same way as if the person had passed away and been identified.
For a court to make the determination that someone is presumed deceased, the person must have been a resident of California whenever he or she first disappeared.
Upon finding that the person is presumed deceased, the court will have to make a determination of the date of death to the extent possible, and an executor will have to be appointed to administer the estate.
What Happens if There is a Reappearance?
Should someone reappear after disappearing, and being presumed deceased, they can recover any property distributed to others, so long as the person files an action to recover the property within 5 years of it having been distributed. The person can also recover any property that is not distributed, but which is still in possession of the executor.
Call the Torrance estate planning attorneys at Samuel Ford Law today for help with your probate and estate matters, or for help managing your financial estate affairs.
