Estate settlement proceedings halt when a will beneficiary is missing. What happens to the missing person's share of an estate depends on state laws. The person managing the estate, typically known as the executor, is responsible for attempting to find any missing beneficiaries; however, the steps he's required to take vary by state. Once he's exhausted all resources, the court moves the case forward.
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The executor may have to contact known relatives by phone and mail, run legal notices in area newspapers, hire researchers to search records and prepare a written statement listing his attempts to find the person. He must file proof of his efforts and his report with the probate court. The court may appoint a "guardian ad litem" for the missing beneficiary. The guardian ad litem works to locate the missing person and protects the beneficiary's interests. She files a report with the court showing her attempts to locate the beneficiary and states her stance. For example, it would read, "Jane, a guardian ad litem, has made numerous attempts to find Ann, a missing beneficiary." Once Jane has tried all available search avenues, she indicates she couldn't find Ann in her court report and recommends the court move ahead on the case.
The court may treat a missing will beneficiary as if he died or order the estate executor to deposit the beneficiary's share with the state government; state laws vary. If state laws treat a missing will beneficiary as dead, the will's terms control what happens to the inheritance. For example, if John leaves everything to his son Michael in his will and John states that Michael's son inherits Michael's share if Michael dies before John, Michael's son inherits his father's share if Michael can't be found during John's estate proceedings. If John decided to leave Michael's share to the other will beneficiaries, such as Michael's siblings, they receive his share.
Even if a missing beneficiary is found, she might not want to take part in any estate proceedings. For example, John had no relationship with his daughter, Mary. John left Mary an inheritance, but Mary doesn't want to have anything to do with her father's estate and won't respond to court papers. In this case, the executor usually files a sworn statement indicating Mary won't respond and proof of his efforts to notify her such as certified mail receipts and letter copies. If a guardian ad litem was appointed for Mary, she also files a report and proof of her attempts to contact her. Mary's share is deposited with the state and held for the length of time required by law or forfeited to the other beneficiaries, depending on state law.
State laws decide who receives a person's estate if he didn't have a will. If state laws give the estate to a missing heir, the court will move through the deceased's relatives in the order determined by the law. Inheritance order varies by state, but usually starts with a surviving spouse and children, moves to parents, grandparents and siblings, and then goes to descendants of parents, grandparents and siblings. The estate usually escheats, or reverts, to the state government if the court can't identify or find any other relative. State laws differ on how long a state holds property for an unknown or missing heir; once the deadline is up, the state becomes the owner. California becomes the owner after five years, while Illinois holds a missing heir's property for seven years. The claim deadline for property of an unidentified heir may differ from the deadline for a known but missing heir; this depends on whether the inheritance falls under the state's unclaimed property laws.
References & Resources
- Probate.com: How Do Missing Heirs Affect a Probate Case?
- County of Greenville, South Carolina: Missing Heirs, Disposition of Unclaimed Assets
- Merced County Tax Collector: Pursuant to Probate Code Section 7643 and Code of Civil Procedures Section 1444
- Chicago Probate Law: Missing Heirs
- Auburn University: Partition Sales
- The Grossman Law Firm, A.P.C.: The Search for a Missing Beneficiary of a California Probated Estate
- Forensic Genealogist Pro: Missing and Unknown Heir Practice and Procedure
- Commissioner of Accounts for the Circuit Court of Rockingham County, Virginia: Refused Bequests
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