Sometimes, a person can be missing for a long time and you need to figure out what to do with their assets. Bills go unpaid, property is neglected, businesses go downhill, etc. In California, if someone is missing, the court can appoint a conservator to manage the estate until they return. Additionally, if they are gone for a long time, they are presumed dead and their estate can be administered through probate.
When is someone presumed dead?
To be presumed dead under the Probate Code, the following circumstances must be met:
- The person has not been seen or heard from for 5 years straight (by the people likely to hear from them, i.e., friends, relatives, etc.), and
- Their absence is still unexplained after a diligent search/inquiry
The death is presumed to have occurred at the end of the period unless sufficient evidence exists to show it happened earlier.
Which county has jurisdiction over the estate?
Assuming the missing person was a California resident when he or she was last heard from, jurisdiction resides in the county of their last known place of residence.
What additional information does the probate petition require?
In addition to the information provided in an ordinary probate petition, you also need to include the following:
- Last known place of residence of the missing person
- Last known address of the missing person
- That the person has not been heard from in 5 years, as described above
- The names and relationships of the people likely to have heard from the missing person
- That the current whereabouts of the missing person are unknown
- A description of the search/inquiry that was conducted to find the person
The petitioner will need to send a notice of hearing to the missing person's last known address by registered mail.
The court will determine the presumption of death at the hearing
At the probate hearing, the court will determine the presumption of death. It might consider affidavits, testimony, or other evidence. If the court is not satisfied with the search efforts, it might order a more extensive search before making the determination.
What happens if the missing person shows up after probate has begun?
If a missing person reappears, they can recover property held by the personal representative (minus fees and costs).
They can also recover property from heirs/beneficiaries to the extent it is deemed equitable by the court in the circumstances. However, there is a 5 year limitation on this right of recovery, measured from the time of distribution.
If fraud or other intentional wrongdoing was involved, the returning person may have other remedies. If there is a dispute as to the identity of the returning person, the court can determine this upon petition as well.
If someone has not been heard from for more than 5 years, probating the estate may be in the best interests of all involved. This will keep the property from going to waste. If you are facing this situation, please contact a probate attorney to discuss your options.
Helix Law Firm can help with probate
If a loved one has been missing for a long time, it might be best to probate their estate. We can discuss the circumstances, recommend a course of action, and petition the probate court to administer the estate.
If you're interested in learning more, please call us at (619) 567-4447 to schedule a free consultation.
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