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Handling the Legal Affairs of a Missing Person

Posted by Gregory Robinson | Mar 27, 2021 | 0 Comments

Approximately 600,000 people go missing in the United States each year.[1] The loved ones who are left behind must carry not only heavy emotional burdens but significant practical burdens too. People who go missing often leave behind real estate and personal property, debts and ongoing bills, insurance premium payments, employment or business concerns, pets, family support obligations, and more. But if someone is missing, and it is uncertain when or if they will ever return, these practical issues must be addressed at some point to prevent them from becoming even more burdensome in the future.

What Should I do First?

After reporting the missing person to local law enforcement so that an investigation can begin, the missing person's family (or friends) must determine if any legal authority already exists that allows a trusted person to handle the missing person's legal affairs. If the missing person has an immediate financial power of attorney, the designated agent can begin handling the missing person's affairs right away. However, in some cases, the missing person might have signed a springing financial power of attorney appointing a trusted person (agent) to handle the missing person's financial affairs only in the event of incapacitation. In most of these types of legal documents, the definition of “incapacity” includes being missing. If this power of attorney can be located, and if its authority is broad enough, the named agent can use the document to take steps on the missing person's behalf to access any existing cash accounts, pay bills, request a hold on payments or other bills pending the outcome of the investigation, and handle the missing person's other similar day-to-day responsibilities. If you cannot readily find the document, contact the missing person's estate planning attorney to obtain a photocopy of the document stored in the attorney's file. A power of attorney can be an immeasurably useful tool in such a situation.

What if There Is No Financial Power of Attorney?

If the missing person never signed a financial power of attorney, you may need to have a conservator appointed through the state court system in the missing person's county of residence. Similar to a power of attorney, a conservatorship grants someone the authority to handle the financial and legal affairs of the missing person. In many states, a specified period of time must elapse before the court will appoint a conservator over a missing person. There must also be sufficient evidence of real effort to locate the missing person before the court will grant the conservatorship. In addition to allowing someone to handle the personal affairs of the missing person, a conservatorship also allows the conservator to access accounts, sell property, and otherwise obtain funds to help with actions such as hiring a private investigator to assist law enforcement in the effort to locate the missing person.

Making a Determination of Death

When it becomes clear that the missing person will probably not be found, it is time to seek a determination of death through the court system. A determination of death will allow the missing person's loved ones to obtain a death certificate, collect life insurance benefits, wrap up the missing person's final affairs through the probate court or a trust, sell or liquidate property, access and distribute retirement accounts, and perform other similar tasks.

Obtaining a determination of death typically requires a formal court proceeding in the state where the missing person resided. The specific requirements for this process will vary from state to state. In many states, the individual must have been missing for at least five years; in other states, the time may be longer. The person seeking the determination of death must typically demonstrate to the court, using clear and convincing evidence, that all reasonable efforts have been made to locate the missing person and that those efforts have nevertheless failed. Such efforts might include documented evidence that law enforcement and all the person's friends, relatives, landlords, co-workers, and schoolmates have been contacted regarding the missing person's whereabouts. In other cases, such as in the case of a plane crash or other disaster where no human remains could be recovered, there must be documented evidence that the missing person was at the site of the disaster when it occurred.

Once state law requirements have been met and the court issues a court order making the declaration of death, the order can be presented to the state coroner or department of health to obtain a death certificate. The death certificate will then allow the missing person's loved ones to begin the probate or trust administration process and collect benefits from insurance, retirement plans, bank accounts, and employers. It will also allow the missing person's legal representative to close accounts, cancel memberships and utilities, sell business interests, and take other similar actions.

Estate and Trust Administration

After obtaining a death certificate for the missing person, the successor trustee of the missing person's trust can take control of the trust property and determine how the property should be handled and distributed. Normally, the successor trustee must sign an affidavit or certificate of trust, a legal declaration stating that any custodian of trust property must now deal with the successor trustee. If a personal representative has not been appointed, the successor trustee will have the authority to settle the missing person's outstanding debts and distribute the trust property to the named beneficiaries according to the terms of the trust.

If the missing person did not have a trust or had accounts or property remaining in the missing person's individual name outside the trust, the state probate court system and associated state law will govern how the nontrust property will be managed and distributed. This typically requires the filing of a probate court case in which the missing person's will is submitted to the court and the personal representative or executor named in the will is appointed as the legal representative of the missing (now considered deceased) person. Once appointed, the personal representative has the authority to handle the missing person's final affairs, including selling and distributing the accounts and property. If the missing person had a pour-over will directing the personal representative to transfer the missing person's accounts and property to the trust, the personal representative will work with the trustee to distribute assets to or hold them in further trust for the benefit of beneficiaries. If there is no will, the probate court will still appoint a personal representative for the missing person's estate (according to state law), granting the legal authority to finalize affairs and distribute the remaining property to the missing person's heirs.

What if the Missing Person Is Found to be Alive?

Although it is uncommon, there are several examples of individuals, missing and presumed dead, who returned many years later.[2] In such an event, having a court declaration of death can be important liability protection for the missing person's family in case the person seeks to recover the accounts and property that were distributed to heirs or beneficiaries. If, however, only a short time has passed since the presumption of death was established and the property was distributed, the returned missing person may be able to seek a return of the money and property. However, state laws can vary widely on whether someone who was declared deceased, and then returns, can recover property that has been distributed to heirs or beneficiaries. Typically, there are limits to whether, and for how long, a reappeared missing person who has been declared deceased can seek recovery of distributed property.

In any case, you should consult with a competent estate attorney to determine the state law requirements for handling the property issues of a missing person. If you need assistance with handling the affairs of a missing loved one, feel free to give us a call.

[1] U.S. Department of Justice, National Missing and Unidentified Persons System, NamUS Overview Booklet p.4, https://www.namus.gov/content/downloads/publications/NamUsOverviewBooklet.pdf.

[2] Marissa Laliberte, 6 Missing Person Mysteries That Were Miraculously Solved, Reader's Digest (Feb. 21, 2020),  https://www.rd.com/list/missing-people-found/.

About the Author

Gregory Robinson

Attorney Gregory Robinson is a native of Alabama. He earned his Juris Doctor (J.D.) degree from Mitchell Hamline School of Law and holds a Master of Business Administration (MBA) degree from Rice University. Prior to practicing law, he worked as a strategy consultant in the financial industry...

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