Approximately 600,000 individuals go missing in the United States each year. For their loved ones, this time can be incredibly challenging, both emotionally and practically. Beyond the heartache, families often face a myriad of responsibilities – from real estate and personal property to debts and ongoing bills. It’s essential to address these practical issues promptly to avoid additional complications down the line.
What Should I Do First?
Once you’ve reported a loved one as missing to local law enforcement and an investigation has begun, your next step is to determine if there is any existing legal authority that allows a trusted person to manage their affairs. If your loved one has designated a financial power of attorney, this agent can immediately begin handling their financial responsibilities.
Sometimes, a springing financial power of attorney may be in place, which allows the agent to act only if the person is incapacitated – often interpreted to include being missing. If you can locate this document, it can be incredibly beneficial for accessing accounts, paying bills, or managing day-to-day tasks. If you can’t find it, reach out to their estate planning attorney, who may have a copy on file.
What If There Is No Financial Power of Attorney?
If a financial power of attorney doesn’t exist, you may need to petition the state court for a conservatorship. This legal arrangement grants someone the authority to manage the missing person’s financial and legal affairs. Typically, a waiting period is required before a conservator can be appointed, and you’ll need to show that you’ve made reasonable efforts to locate your loved one.
A conservatorship can enable the appointed individual to access accounts, handle property matters, and even hire private investigators to assist in the search.
Making a Determination of Death
In cases where it becomes evident that the missing person is unlikely to be found, seeking a court determination of death may be necessary. This legal process allows family members to obtain a death certificate, access life insurance benefits, and wrap up the missing person’s affairs.
The requirements for obtaining a determination of death can vary by state. Generally, the individual must be missing for a certain period – often five years – before this option is available. The person seeking the declaration will need to present clear evidence of their efforts to locate the missing person.
Once the court issues a declaration, it can be presented to obtain a death certificate, facilitating the probate process and allowing loved ones to settle affairs.
Estate and Trust Administration
After acquiring a death certificate, the successor trustee of the missing person’s trust can step in to manage and distribute the trust property. This typically involves signing a legal declaration to assert their authority over the trust.
If there’s no trust, the state probate court will govern the management and distribution of the missing person’s estate. This involves submitting the will to the court and appointing a personal representative or executor, who will handle final affairs, settle debts, and distribute remaining property.
What If the Missing Person Is Found Alive?
While rare, there are instances where missing individuals return after being presumed dead. In such cases, having a court declaration of death can protect the family from potential claims for the return of distributed assets. However, if only a short time has passed since the declaration, the returned individual might be able to reclaim some property.
State laws can differ significantly regarding the rights of individuals declared deceased who later return, so consulting with an estate attorney is vital.
Navigating the legal complexities surrounding a missing loved one can be overwhelming. If you find yourself in this situation or need assistance with estate planning, we invite you to reach out and schedule a Life and Legacy Planning Session with us. We’re here to help you through these challenging times with compassion and expertise.
At Cheever Law, APC, we don’t just draft documents; we ensure you make informed and empowered decisions about life and death for yourself and the people you love, starting with a valuable and educational Life & Legacy Planning Session. This will allow you to get more financially organized and make the best choices for the people you love. If you have already completed your estate plan, we will review that plan at your Life & Legacy Planning Session to ensure that it will work the way you intend and address any holes or gaps that may be present if circumstances have changed since you executed your plan.
To learn more about our one-of-a-kind systems and services, contact us or schedule a no-obligation 15-minute introductory phone call today.