Missing person. Now, what’s next, probate court and the impact of intestacy.

Probating the Estate of a Missing Person

Even more excruciating than the death of a beloved person is arguably the uncertainty when the beloved person goes missing and his or her body is never recovered. Florida laws contain rules that allow the surviving family members to complete the mourning process, declare the missing person dead, and move on with their lives. One of the issues that the surviving members must deal with is the distribution of the estate of the deceased. Can you probate a missing person’s estate?

The answer is yes. However, as the first step, the missing person must be declared fictitiously dead. Under Florida Statute §731.103(3), a person who is absent from the place of his or her last-known domicile for a continuous period of five years and whose absence is not satisfactorily explained after diligent search and inquiry is presumed to be dead. The thoroughness of the search for the missing person is considered on a case by case basis; therefore, what may be enough in one case might be insufficient in another one. What is clear though is that at least some search must be done every time.

Pursuant to Florida Statute §731.103(3), the death is presumed to have occurred at the end of the five-year period. A presumed death occurs, for example, when there is a drowning accident in which the body is never recovered, a person leaves for the store and is never heard from again, or a plane crashes in the ocean and no body is recovered.

In some circumstances, a missing person can be declared dead even before the five-year period. Such circumstances may include cases where the missing person was exposed to danger probable to threaten his or her life such as an airplane crash, or when the missing person left home and he or she was in poor health or contemplated suicide. See Florida Statute §731.103(34). In such cases, the person will be presumed dead as of the date of the dangerous circumstance. To obtain a presumptive death certificate, one must first file a petition to declare the missing person dead with the probate court in the county in Florida where the decedent maintained his or her domicile or in any county of this state if the decedent was not a resident of Florida at the time his or her absence commenced. Fla. Stat. §731.103(3).

Establishing death through direct or circumstantial evidence is a factual inquiry and is considered case-by-case in an evidentiary hearing. The evidence is sufficient “if the circumstantial evidence amounts to a preponderance of all reasonable inferences that can be drawn from the circumstances in evidence to the end that the evidence is not reasonably susceptible of two equally reasonable inferences.” Johns v. Burns, 67 So. 2d 765, 767 (Fla. 1953).

Once the probate court declares the missing person dead, the clerk of the court issues an order. Consequently, the Florida Department of Health files a presumptive death certificate. Fla. Stat. §382.012. Finally, upon declaring a missing person dead, the court can enter an order and probate proceedings can commence. Florida Statute §733.209 states that “any interested person may petition to administer the estate of a missing person; however, no personal representative may be appointed until the court determines the missing person is dead.”

If you ever find yourself in such a tragic situation where someone you know has gone missing, it is very important that you consult an attorney. Those interested in learning more about probating a missing person’s estate should not hesitate to contact the attorneys of Chepenik Trushin LLP, who are ready, willing, and able to assist with your estate planning and probate litigation needs. Bart H. Chepenik, JD, LL M, 305-613-3548, Brad H. Trushin, Esq, 305-981-8889.

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