Can You Probate the Estate of a Missing Person in California?
When someone goes missing in California, families are often left dealing with the stark reality of probably never seeing their loved one again and also in legal limbo, unsure how to handle the person’s assets, debts, or wishes. While the probate process typically involves administering the estate of a deceased person, California law provides a way to probate the estate of a missing person. If a loved one has been missing continuously for five years, they can be presumed dead, allowing loved ones to request a death certificate and begin the probate process.
When Would Probate Be Necessary?
If your loved one vanished and it’s been five years or more without any contact whatsoever, probate might be the last thing you want to think about, but it could provide some relief. This could especially be essential if bills keep piling up, creditors won’t stop calling, and mortgages go unpaid. California law allows close family members like a spouse, children, or parents to ask the court to declare a missing person legally dead after five or more years of no contact.
Who Can File the Petition?
Under California Prob C §12404(b), only specific persons can petition the court to declare a missing person missing. These may include a spouse, parent, child, or another qualifying relative. A public administrator or even a creditor may also be eligible. However, no matter how close to the missing person, friends or distant acquaintances cannot file the petition.
If you’re eligible to file, you must provide the court with detailed information in the petition. This includes:
- The person’s last known address
- When and where they were last seen
- Circumstances surrounding the disappearance
- A statement confirming that no one who would normally have contact with them has heard from them
- Descriptions of any efforts made to find them, like police reports, missing person searches, or media alerts
Steps Involved in Declaring a Missing Person Deceased
The following are the steps you may take to declare a missing loved one deceased.
- Collecting Evidence
Once the five-year mark has passed, you can start gathering all the relevant documentation. This may include public notices, police statements, newspaper articles, or sworn statements from people who knew the missing person.
- Filing With the Probate Court
The next step is to file the petition with the probate court in the county where your loved one lived or owned property.
- Court Review and Declaration
The court will then examine the petition and consider all the circumstances surrounding the person’s disappearance. If necessary, the court may order a further inquiry into the person’s disappearance, such as publishing a request for information about the missing person’s whereabouts, notifying appropriate law enforcement and public agencies of the disappearance, or hiring an investigator. If the judge determines there’s enough proof, they will issue an order declaring the person dead, determine the date of the missing person’s death, and appoint a personal representative of the deceased missing person’s estate. With a court order, you can request an official death certificate.
Once you have obtained an official death certificate, the estate can be handled like any other deceased person’s estate, where the personal representative files a petition to begin probate proceedings.
Contact a California Probate Lawyer Today
If you’re navigating a missing loved one’s estate, contact the dedicated California probate attorney Robert L. Cohen – The Probate Guy – today to schedule a telephone consultation.
Southern California Probate Lawyer Serving Orange, Riverside, Anaheim, Whittier & Beyond.
Source:
leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=PROB&division=7.&title=&part=12.&chapter=&article=
