When somebody goes missing in California, their family may face what seems an impossible situation: uncertainty about their loved one’s fate but in need of the legacy that person wanted to leave behind. While initiating probate proceedings for a missing person can be more complex than initiating those for a deceased person with a death certificate, state law does provide a procedure to take a missing person’s estate to probate.
When You May Need to Probate a Missing Person’s Estate
If your loved one disappeared, you may fear the worst. But until they have been declared legally dead, you may struggle to resolve their estate complications. You might face harassment from their creditors or fall behind on a home mortgage without your lost family member’s income and support.
Initiating probate proceedings can be an emotionally difficult decision, but it can provide relief if:
The person has been missing for a long time.
California law permits a missing person’s spouse and other certain family members—such as a parent or child—to submit a petition to the court requesting that a missing person be “presumed dead” if that person has not been seen or heard from for five or more years. The court will likely approve such a petition, provided there is no other reasonable explanation as to why they may be missing.
The person is presumed dead in a mass casualty event.
If there is sufficient evidence to connect a missing person with a mass casualty event, the court may allow a person to be presumed dead if their body could not be recovered due to the catastrophic nature of the event, or if evidence shows that the missing person was at the site of the mass casualty event when it occurred.
Initiating Probate Proceedings for a Missing Person
Before probate can be opened, an eligible person must submit a petition that the missing individual be presumed dead.
Only those who may be appointed as a personal representative such as a spouse, domestic partner, close family member, or even a creditor can file such a petition. Friends or people who have an interest in the estate but do not meet California state specifications cannot file a petition to recognize the missing person as deceased.
This petition must include information such as:
- The missing person’s last known residence
- The approximate time and date of the missing person’s disappearance
- The circumstance of the missing person’s disappearance
- A statement that the missing person has not been seen or heard from by those people who would be most likely to have seen or heard from them
The person filing the petition must also describe their relationship to the missing person and a description of any search efforts or legal inquiry made to locate them.
If the court approves the petition to recognize the missing person as legally deceased, it will:
- Appoint a personal representative for the estate of the missing person, in accordance with California’s probate code. If the missing person had a will and named an estate administrator, that person will assume the responsibilities of estate administrator. Otherwise, the court will appoint one.
- Determine and provide the missing person’s presumed date of death.
After the court has approved the petition, probate proceedings can be initiated and completed in accordance with ordinary procedure.
How an Attorney Can Help
Depending on the circumstances of a missing person’s disappearance, convincing a court they should be presumed dead can be very challenging—especially if the missing person had substantial debt, ties to foreign countries, or any compelling reason to cut ties with their loved ones.
An experienced probate attorney knows what evidence the court will want to see to approve a petition to presume a person dead, and an experienced probate attorney knows which evidence works best.
A missing person’s estate can be complex to handle because an individual whose whereabouts are unknown may not have thoroughly planned their intended legacy. Retaining an attorney is crucial to ensuring you get the inheritance and support you need and the closure you deserve.
Do You Need Legal Help Regarding Probate Issues In California?
If a loved one died without a will and you need legal assistance regarding the probate process you should be speak with an experienced probate attorney as soon as possible. Contact us online or call our office directly at 800.756.5596 to claim your space at one of our free, informative seminars. Your attendance will qualify you for a discount for our probate services. We proudly serve clients throughout California with offices in experienced probate attorney as soon as possible. Contact us online or call our office directly at 800.756.5596 to claim your space at one of our free, informative seminars. Your attendance will qualify you for a discount for our probate services. We proudly serve clients throughout California with offices in Torrance, Newport Beach, Orange, Woodland Hills and Pasadena." target="_blank">Torrance, Newport Beach, Orange, Woodland Hills and Pasadena.