What if an Heir to a Will Cannot Be Found?

by Jennifer Williams Google
In some cases, the inheritance of a missing heir is held in trust for a number of years before finally escheating to the state.

In some cases, the inheritance of a missing heir is held in trust for a number of years before finally escheating to the state.

Stockbyte/Stockbyte/Getty Images

Generally, distribution of an estate to the rightful beneficiaries is a straightforward process, occurring at the end of a probate proceeding after all debts are paid and just before the estate is closed. It is always possible that an heir is out of touch with the rest of the family. Each state has its own probate laws that detail what to do if an heir is missing and no one knows how or where to find him. However, while time frames and deadlines may vary by state, the basic procedure for handling the inheritance property of a missing heir is fairly standard across the U.S.

Search Requirement

All personal representatives must make a genuine effort to find all the beneficiaries of the estate for which he is appointed. This duty is imposed by state law and is uniform across all states. The personal representative is usually required to advertise his appointment and the opening of the estate's probate in a local newspaper, in an effort to encourage all heirs to step forward. This advertisement usually must run for a number of consecutive weeks, giving all heirs the best chance of seeing it. The personal representative also contacts each known heir directly to notify him or her of the probate.

Missing Heir

When an heir to an estate cannot be found, he is considered a missing heir. The personal representative is required to search for the missing heir, but sometimes even the most diligent search produces no results and the heir remains missing. When this happens, the process is the same regardless of whether the missing heir is one of many heirs to the estate or the sole heir. The inheritance of the missing heir is held in trust for a length of time as determined by state law, after which the inheritance goes to the next heir in line to inherit, as determined by the state laws of intestate succession. Usually, the next in line to inherit the missing heir's inheritance are his heirs or legatees, i.e. designated beneficiaries who are not necessarily blood relatives. However, if the missing heir has no next of kin, his inheritance eventually escheats to the state, which means legal ownership of the inheritance transfers to the state.

Property Held in Trust

If an heir is still missing when the estate is distributed, his inheritance property is transferred into trust and the estate closes. How long the property stays in trust varies state to state. In Washington State, for example, property of a missing heir is transferred to a trustee who posts a bond and retains the property for three years. After three years, if the heir still has not come forward, the trustee transfers the property to the county treasurer who holds it for another four years and 90 days after which the property escheats to the state department of revenue.

Heirs of the Missing Heir

After the missing heir has been missing for a certain amount of time, states usually allow the legatees or heirs of the missing heir to petition the probate court for distribution of the property. In Washington state, for example, the missing heir must have been missing for five years before the heirs or legatees can ask the court to give them the missing heir's share of the inheritance held in trust by the state. Heirs or legatees can petition sooner if the court determines there is a strong likelihood that the missing heir is actually deceased.

Escheat

Eventually an unclaimed inheritance escheats to the state where the estate was probated. This happens when a missing heir does not come forward and no heirs or legatees of the missing heirs petition for the property to be released to them. That time deadline varies from state to state, but states generally try to afford a missing heir a reasonable number of years to come forward and claim his inheritance. California, for example, allows an heir to reclaim his escheated property by filing a petition with the probate court and serving it on the state Attorney General. Once satisfied the heir is who he says is and is entitled to the property, the court orders the county auditor to withdraw the money from the treasury and give it to the heir.