What legal recourse do the surviving heirs of a missing person have to administer that person’s estate? In California, when a person has been missing for a continuous period of five (5) years or more, the surviving spouse, registered domestic partner, certain family members, and creditors can file a petition in the missing person’s last known county of residence to obtain a determination that the missing person is “presumed dead”. What then is involved with successfully file such a “missing person” petition?

Section 12404 of the California Probate Code requires the petitioner to state the following: (1) The last known residence the last known address of the missing person; (2) the time and circumstances when the missing person was last seen or heard from; (3) that the missing person has not been seen or heard from for a continuous period of five (5) years by the persons likely to have seen or heard from the missing person and that the missing person’s whereabouts are unknown to those persons and the petition; and (4) a description of the search or the inquiry concerning the whereabouts of the missing person.

Whether the court grants the petition depends most heavily on whether or not the court is satisfied that it has sufficient evidence from your search or inquiry to determine that the person is presumed dead. Evidence that the missing person is presumed dead can include affidavits and depositions of persons likely to have seen or heard from or know the whereabouts of the missing person (section 12406(a) of the Probate Code).

If necessary, the Court may require the search or inquiry to be made in any further manner that it considers advisable. That could include (1) publishing a request for information as to the missing person’s whereabouts in any newspaper or periodical; (2) notifying appropriate law enforcement and public agencies of the disappearance; and (3) hiring an investigator. Such costs are paid from the missing person’s estate, if funds are available, and otherwise may have to be paid by the petitioner. (See section 12406(b) of the Probate Code.)

If the Court determines that the person is presumed dead, then the Court must both appoint a personal representative of the deceased missing person’s estate and determine the date of the missing person’s death (section 12407 of the Probate Code). At this point forward, the administration of the deceased missing person’s probate estate is administered in the same manner as any other deceased person’s estate. Assets held in the presumed deceased person’s trust would be separately administered by the successor trustee.

Lastly, if after the distribution of the estate, the presumed deceased person reappears alive then he or she has five years from the time of such distributions to recover property from the persons who received such property. The missing person’s right of recovery is limited by what is fair under the circumstances and also by the legal fees, costs and expenses incurred associated with the administration of the presumed deceased person’s estate prior to his or her re-appearance.

Editor’s Note: Dennis A. Fordham is an attorney licensed to practice law in California and New York. He concentrates his practice in the areas of estate planning and aspects of elder law. His office is at 55 1st Street, Lakeport, California. He can be reached by e-mail at dennis@dennisfordhamlaw.com or by phone at 707-263-3235.

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