Probating Estates With No Body, And No Death
When we think of probating an estate, one thing or one issue we just assume is established, is that the person whose estate is being probated, is actually gone. Whether someone died or not, is supposed to be the easy part of probating an estate. But it’s not always that easy. The very sad reality is that in some cases, we don’t actually know if someone has passed away.
When Death is Unknown
There are a number of situations where this may be the case. Sometimes, we know someone more than likely passed away, we just don’t have a physical body to identify. For example someone who was in a collapsed building but whose body was never found, is almost certainly likely deceased.
Other times it’s not so clear; someone may have just disappeared, never to be heard from again.
Presumption of Death
You can in fact probate a will or an estate, even without an actual identification of a body. To do so, certain requirements have to be met or shown.
The person who is presumed deceased must be absent from where he or she lives, for a continuous period of five years. Additionally, there can be no logical explanation of the person’s disappearance or whereabouts, and it must be shown that a diligent search was made.
Of course, what is diligent, will depend on the circumstances. Someone who left to go overseas and never returned, would likely require an extensive search, to establish that he or she is actually gone. Whereas someone who was in a plane that crashed, likely would not need much of a search at all to establish death.
Shortening the Waiting Period
In some cases, the five year waiting period can be shortened, in situations where there is a catastrophe, and death is obvious. Plane crashes, building collapses and sometimes, elderly people who are never found and who it is established cannot take care of themselves, may qualify to have the time period shortened.
When this is proven, the death will be assumed to be on the date of the catastrophe, and the estate can be probated based on that date of passing.
To have a probate court establish death in the absence of a death certificate, or proof of a body, it must be shown that there are not two reasonable explanations for the disappearance. Someone cannot, for example, be dead, “unless he is living in Morocco, where he was last seen.” The person’s disappearance can have no logical explanation, other than death, to have death established before the expiration of the five year waiting period.
Extra Steps in Probate
The presumption of death is actually filed first, and the estate will not be probated until it is established that the person is deceased in the first place. Depending on the circumstances, the establishment of death may be relatively quick, or could take time, if proof is needed.
Call a West Palm Beach probate lawyer at The Law Offices of Larry E. Bray today for help with your probate issues and to guide you through the probate process.