The subject of in absentia heirs of an estate is a difficult one. When family members or other named beneficiaries are contacted when an estate comes into effect at the end of the owner’s life, there is sometime a conundrum of one or “missing” parties. If a person is missing due to lack of contact information, or more serious reason, estate distribution of assets to beneficiaries and heirs may be delayed until the party is located. Sometimes missing persons are located by due diligence investigation prior to an estate matter going to probate court review. Planning giving records and charitable giving records of parties listed in a third-party estate matter are held by private businesses and nonprofits are an alternate source of information that can assist in the process if summoned by the courts.
There are federal and state procedural rules for court appearance in absentia. Example is court record of estate claims pursuant to New York Consolidated Laws, Estates, Powers and Trusts Law – EPT § 2-1.7(a)(b)(c) Presumption of death from absence; effect of exposure to specific peril, applying to circumstances where an heir or beneficiary is absent. The statute of limitations for continuance of estate matters involving missing parties is a period of three consecutive years in New York and varies by state.
During the statute of limitations period, the representing attorney has the duty to search for the missing party. After the limitation period, probable date of death is satisfactory explanation for the court. In some states like New York, the law provides that if the missing person was exposed to peril of death before the end of the statutory period, early termination of the search may be allowed. However, if the party is later found to be living post the three-year investigation, a motion to nullify a court issued death certificate is required. In New York, the three-year statute of limitations requirement does not apply to any other circumstance other than deceased in absentia.
Probate courts have a sizeable record of estate matters concerning in absentia parties. Estate planners acknowledge, educating clients on the risks of in absentia beneficiaries is one of main challenges of establishing the proper foundations of an estate and its trust.
Sufficient notice by an attorney involves “reasonable steps” to contact an heir or beneficiary of an estate client via the standard due process measures. A licensed attorney can also motion for continuance of an estate matter whilst public records searches and private investigation is underway. In circumstances where a client is not located by way of standard due diligence investigation over a reasonable period, an attorney may be required to withdraw from representation, and the case will proceed with probate court determination.
Federal and state rules of estate include intestate succession provisions guiding probate court proceedings. Laws of intestacy dictate rules of property asset distribution along the lines of family relation. The rights of “missing” relatives with illegal alien status in the United States, or the rights of posthumous relatives conceived, yet born a decedent’s death, are example. These in absentia family members are accorded the same rights to estate assets as other relatives by probate courts under the law. If heirs and named beneficiaries have not been located (i.e., “missing”) at the time an estate becomes effective at the end of a decedent’s life, most state laws allow for the court to “escheat” property and other assets to state coffers.
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