Can You Administer The Estate Of a Missing Person In California?

Yes. California has a process allowing interested persons to probate the estate of a missing person when they are presumed dead.

When Is A Missing Person Presumed Dead In California?

California Evidence Code § 667 provides that a person who has not been heard from in five years is presumed to be dead.

California Probate Code § 12401 also provides that a missing person is presumed dead after five years:

In proceedings under this part, a person who has not been seen or heard from for a continuous period of five years by those who are likely to have seen or heard from that person, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead. The person’s death is presumed to have occurred at the end of the period unless there is sufficient evidence to establish that death occurred earlier.

Where Can The Estate Of A Missing Person Be Administered?

If the missing person was a resident of California when they were last seen or heard from, the superior court of the county of the missing person’s last known residence has jurisdiction over the missing person’s estate.

If the missing person was not a resident of California, then the county where the decedent owned real property, or the county where personal property is located if the missing person had no real property in California, has jurisdiction over the missing person’s estate.   California Probate Code § 12403.

Who Can Petition To Administer The Estate Of A Missing Person?

Any person who may be appointed as a personal representative of a decedent’s estate can petition for the administration of the estate of a missing person.   Read Who Can Serve As a Personal Representative In California to learn more.

Basically, the list includes the spouse, certain family members, and even creditors.  The only exception for estates of missing persons is that the catch-all “any other person,” an option generally for persons who can serve as personal representative of a California estate, cannot serve in the case of a missing person’s estate.

How Do You Petition To Administer The Estate Of a Missing Person Under California Law?

California Probate Code section 12404 sets forth the requirements for a petition to administer the estate of a missing person.  In addition to the matters otherwise required in a petition for administration of an estate, the petition must state:

  1. The last known place of residence and 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 years by the persons likely to have seen or heard from the missing person (naming them and their relationship to the missing person) and that the whereabouts of the missing person is unknown to those persons and to the petitioner.
  4. A description of the search or the inquiry made concerning the whereabouts of the missing person.

 

If the California court finds that the alleged missing person is a person presumed to be dead, the Court must:

  1. Appoint a personal representative for the estate of the missing person in the manner provided for the estates of deceased persons.
  2. Determine the date of the missing person’s death.

 

See California Probate Code § 12407.

What Happens If A Missing Person Presumed Dead Reappears?

If a missing person reappears after being presumed dead, what happens next depends on how much time has passed and what happened with the missing person’s assets.

The missing person may recover property of the missing person’s estate in the possession of the personal representative, less fees, costs, and expenses thus far incurred.

The missing person may also recover property from distributees of the missing person’s estate, to the extent that the recovery is equitable in view of all of the circumstances, and less than five years has passed since the time the distribution was made.  See California Probate Code § 12408.

Although probating the estate of a missing person is not common, a California probate lawyer can help.

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Find Your California Probate Star

San Diego

Merwyn J. Miller

Los Angeles County

Stewart J. Levin

Orange County

Priscilla Madrid

Ventura County

Naomi Stal

San Mateo County

Sally Bergman

San Bernardino County

Fred W. Edwards

Stanislaus County (Modesto)

Thomas Bonte

Santa Clara County

Nicholas P. Jellins