It is a traumatic experience to have someone close to you go missing. Not only is the mental trauma of not being to locate the person strenuous, but the financial aspect also begins to take its toll. The requirement to fulfill the needs of the absentee’s family and creditors and also to manage and protect the property has led to the enactment of legislature in many states including California.
For the immediate needs of maintenance and protection of property, a trustee can be appointed for a person missing for at least 90 days who is a resident of the state. This is only applicable in cases where the missing person is still presumed to be alive.
But, what is the recourse when a person has been missing for a very long period of time? In California, a petition can be filed to declare a person “presumed dead” when that person has been missing continuously for five years or more. The absentee’s surviving spouse, registered domestic partner, some family members, or creditors can file this petition in the missing person’s last known county of residence. The “presumed dead” petition is governed by California Probate Code Sections 12400-12408.
Under Section 12404, the petition must include the person’s last known place of residence and the address, the time and the circumstances when the person was last seen or heard from along with the description of the search and enquiry that had followed. The Court shall determine at the hearing whether the person can be presumed dead or whether the court wants further investigation about the whereabouts of the missing person, as per section 12406. If the Court finds the missing person presumed dead as per section 12401, then under Section 12407, the Court will also determine the date of death and appoint a personal representative to administer the estate in the same manner as that of a deceased person’s estate.
The missing person if he reappears later has the option of recovering his property from the beneficiaries under Section 12408. He will have to do so within a period of five years since the distribution of the assets. His right of recovery will be affected by what seems fair under the circumstances and will also take into account the cost of legal fees and other costs of administering the estate.
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