San Diego Estate Planning Lawyer Blog
What happens when someone dies and they have property in California but the decedent can’t be found? Sometimes people go missing and are never found. Sometimes it is asssumed that someone has died in an aviation accident with no remains found. Sometimes even criminals suddenly disappear with a suitcase full of money, never to reappear. That happens to their estate?
For the immediate needs of maintenace and protection of property, a trustee can be appointed for an individual who has been missing for 90 days and is presumed to be alive. What if the individual is presumed to be dead and has been missing for a long time? The famiy needs to be able to take care of debts and take over other financial matters of the decedent.
California Probate Code section 12400 – 12408 provides a method of administration and distribution of an estate of a decedent who has been missing continuously for 5 years. This “presumed dead” petition must be filed in the county where the missing person last lived if the person resided in California. If the decedent was not a California resident, the petition can be filed wherever the decedent owned property in California. The petition must state the time and circumstances of the disappearance, last known residence, and a description of what search and investigation occurred concerning his or her disappearance. The Court determines at a hearing whether the person can be presumed dead or there should be further investigation. If the Court finds that the missing person is presumed dead, the Court can also determine the date of death and appoint a personal representative to administer the estate in the same manner as any other decedent’s estate.
If the missing person suddenly appears, he has the option of recovering his property from the beneficiaries under Probate Code section 12408 as long as it is within 5 years since the distribution of assets. Other factors the Court will consider are the reasonableness of the circumstances and the cost of legal fees and administration.