CALIFORNIA MISSING PERSON PRESUMPTION OF DEATH; COURT DECLARATION OF DEATH AND CALIFORNIA PROBATE OF ESTATE OF MISSING PERSON

William Sweeney

Sadly, some people find themselves beginning a California probate administration after a loved one is lost in a mass casualty or has been missing for a long period of time. In addition to the terrible loss of life, there is an obvious need to satisfy the interests of the family and creditors and to keep property in the stream of commerce while at the same time protecting the missing person from the dissolution of his estate.

Sometimes people disappear and their whereabouts are unknown. After a period of time, those persons are often presumed dead.

Also, sometimes people are lost in mass disasters. Building collapses, landslides, tsunamis, or similar mass disasters often cause victims' bodies to be buried by debris and not recovered. The 9/11 attack resulted in mass casualties and many were never recovered from the ruins. In the decade that followed 9/11, victims of the 2004 Indian Ocean Tsunami and Hurricanes Katrina and Rita in 2005 were not recovered.

Even when remains are found after a disaster, the remains may be too small or compromised to provide DNA, or the deceased may not have family members or others able to aid in the victim identification process.

THE NATIONAL MISSING AND UNIDENTIFIED PERSONS SYSTEM

The National Missing and Unidentified Persons System (NamUs) estimates there are as many as 90,000 active missing person cases at any time. NamUs, is a national centralized registry and resource center for missing and unidentified persons. NamUs provides an opportunity for families, law enforcement agencies and investigators to search nationwide for missing persons using a variety of powerful search features. Anyone may search the database, but by registering in the system both law enforcement professionals and the general public will also be able to:

  • Add new missing persons cases;
  • Add physical and circumstantial details, photographs, dental contacts and other critical pieces of information to a case;
  • Create and print missing persons posters; and
  • Track multiple cases as information is added to the system.

PROBATE CALIFORNIA PERSON'S ESTATE MISSING 5 YEARS

The problems inherent in the handling of property owned by one who has disappeared and remained absent without explanation are both numerous and difficult. As long as it is not known whether he/she is living or dead, rights must remain uncertain and his/her property is rendered virtually useless. However, California Evidence Code § 667 provides that a person not heard from in five years is presumed to be dead.

Under the laws of California, if a person has been missing for five years or longer, his or her spouse, certain family members, and creditors can file a petition with the court requesting that the person be "presumed dead." If the person is found to be presumed dead, a probate administration can occur.

California Probate Code §§12400-12408 permit administration and distribution of the estate of a person who has been missing for 5 years as if that person died. (See California Evidence Code § 667 and California Probate Code §12401). California Probate Code §12401 provides:

"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."

It must be pointed out that to invoke judicial jurisdiction under California law, it is initially necessary to determine whether the missing person was a resident of California at the time of disappearance.

CASUALTY DEATH OF CALIFORNIA RESIDENT

Obtaining a death certificate may prove problematic in the event of a casualty death with no body or sufficient body part found. California Probate Code §§12400-12408 appear to permit administration and distribution of the estate of a person whose body is not found in a casualty event. California Probate Code §12401 appears to allow sufficient evidence to establish that the death occurred earlier than 5 years (i.e. the date of the casualty). In that event, the petitioner should be ready to show:

  • That the absentee's body could not be recovered due to the nature of the catastrophic event; and
  • That evidence places the absentee at the site of the catastrophic event on the date and at the time of the event.

WHO CAN FILE A PETITION?

The petition may be filed by any person who may be appointed as a personal representative, other than a person described California Probate Code §8461(r) ( persons not falling within the categories of persons having priority of appointment as specified in California Probate Code §8461(a)-(q)). (See California Probate Code §12404(b)).

Thus, the spouse, domestic partner, specified family members, the public administrator, or a creditor may file the petition, but one who is a friend of the missing person, or a person interested in the estate who is not within the specified categories, may not.

In addition to the matters otherwise required in the petition for probate, the petition must state the missing person's last-known place of residence; the time and circumstances of the disappearance; that the missing person has not been heard from by the persons most likely to hear (naming them and their relationship to the missing person) for a period of 5 years (or shorter period where applicable); that the whereabouts of the missing person are unknown to those persons and to the petitioner; and a description of any search or inquiry made concerning the missing person's whereabouts. (See California Probate Code §12404(c)).

CALIFORNIA COURT'S FINDING OF DEATH OF MISSING PERSON

If the court finds that the missing person is presumed to be dead, the court must do both of the following (California Probate Code §12407):

  • Determine the date of the missing person's death; and
  • Appoint an executor or administrator to administer the estate in the same general manner and method of a proceeding as provided for administration of a decedent's estate.

IF THE MISSING CALIFORNIA PERSON REAPPEARS

If the missing person reappears, he or she may recover any estate property in the hands of the executor or administrator and any estate property (or proceeds) already distributed, to the extent that recovery from distributees would be equitable. The missing person is barred from recovering property from a distributee unless he or she brings an action to recover the property within 5 years after the distribution was made.

CONSERVATORSHIP OF THE ESTATE OF A CALIFORNIA MISSING PERSON

What may a family do to preserve the estate during the time a person's whereabouts are unknown. Conservatorships of the estate of absentees and missing persons can be established under California Probate Code §§1844-1849.5. The proceeding is limited to a conservatorship of the estate only.

The petition for conservatorship of the estate of the absentee or missing person must state all of the following:

  • The absentee or missing person owns or is entitled to the possession of real or personal property located in California.
  • The time and circumstance of the person's disappearance.
  • That the missing person has not been heard from by the persons most likely to hear (naming them and their relationship to the missing person) since the time of disappearance and that the whereabouts of the missing person is unknown to those persons and to the petitioner.
  • The last known residence of the missing person.
  • A description of any search or inquiry made concerning the whereabouts of the missing person.
  • A description of the estate of the absentee or missing person which requires attention, supervision and care.

MISSING MILITARY PERSONS

California Probate Code §§3700-3722 provide for a set-aside procedure of estates of military or federal government personnel who are in "missing status" as defined in 37 USC §551(2) and 5 USC §5561(5) (e.g., held as prisoners of war or reported as "missing in action"). An absentee is a member of the armed services or an employee of the United States government or one of its agencies whose status is "missing," as defined in 37 USC §551 and 5 USC §5561. California Probate Code §§1403, 3700(a). The set-aside procedure may be used by the family for personal property of the absentee up to a value of $20,000.

If the value of the absentee's property exceeds $20,000 when calculated to include assets outside California or real property owned by the absentee, the court still has jurisdiction to set aside the absentee's personal property in California if those assets do not exceed $20,000. The value of the absentee's interest held as a joint tenant is included in ascertaining the value of the property. The joint tenancy interest may only be set aside to the family member who is the joint tenant.

If the absentee was an employee of the United States government or one of its agencies, a "certificate of missing status" must be obtained from the appropriate department or agency. See California Probate Code §3700)b). A certificate of missing status means the official written report, complying with California Evidence Code §1283, showing the determination of the Secretary of the military department, or the head of the department or agency concerned, that the absentee is in missing status. California Probate Code §3700(b).

The person in whose favor the personal property may be set aside may file the petition, as may a person to whom the absentee has issued a valid power of attorney while serving in the armed forces or while an employee of any agency or department of the United States. If the power of attorney was valid and effective when issued, the holder of the power is not disqualified from petitioning even if the power has since expired or terminated.

The court must determine that it would be in the absentee's best interests, including the absentee's obligation to provide shelter, food, health care, education, transportation, or the maintenance of a reasonable and adequate standard of living for his or her family. "Family of an absentee" means an eligible spouse or, if there is no eligible spouse, the child or children equally; if there are no children, the absentee's parent or parents, equally, are considered family. The family member must be a dependent of the absentee, as defined in 37 USC §401. This requirement appears intended to ensure that only individuals who would benefit from the absentee's presence are able to have the property set aside on their behalf.

Within 6 months after the absentee returns, or within 6 months after a determination of death has been made, the person or persons to whom the property was set aside may be called on to account for the property and proceeds, if any.

CONCLUSION

If you wish to gain more information please contact me for a free consultation. I will spend time with you to answer your questions. From my office in Southern California, I represent families in all California counties, including Southern California Counties such as Imperial County, Los Angeles County, Orange County, San Bernardino County, and San Diego County. I also represent parties residing outside of California that have probate matters affecting real and/or personal property in California.

To schedule a consultation, call me toll free at 800-575-9610 or locally at 760-989-4820.

Disclaimer: This article is intended to provide general information. The content of this publication is for informational purposes only. Neither this publication nor its author is rendering legal or other professional advice or opinions on specific facts or matters. No attorney-client relationship is created by this advisory, nor by any response to the information herein, unless and until a conflicts review has been conducted by William K. Sweeney, and a written agreement containing all terms of representation has been signed.

Copyright © 2018, William K. Sweeney, Attorney at Law. All rights reserved.