What if a Person Dies and Leaves His Estate to Someone Who Can't Be Found?

By Anna Assad

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.

Procedure

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.

Missing Beneficiary

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.

Protect your loved ones. Start My Estate Plan

Uncooperative Beneficiary

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.

Escheat

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.

Protect your loved ones. Start My Estate Plan
What if an Heir to a Will Cannot Be Found?
 

References

Related articles

What if You Cannot Find Heirs in Succession?

When someone dies without a will to bequeath his property, the law leaves little doubt about who receives the fruits of his lifetime’s labors. It goes to his next of kin, and there’s no room for creativity, compassion or need. Probate courts distribute according to degrees of kinship, with the decedent’s most closely related family members receiving first right.

How to Fill Out a Small Estate Affidavit in Indiana

Probate is the court-supervised procedure through which the estate of a deceased person, known as the decedent, is dispersed. Indiana law allows an estate with less than $50,000 of assets to bypass the probate process. If this is the case, you can use a small estate affidavit to collect the decedent's personal property and real estate. For example, you may present the affidavit to a bank to get the funds from the decedent's bank accounts. However, you must wait until 45 days have elapsed since the decedent's death to file the affidavit. You must also be a lawful heir to file the affidavit. Further, you can't file an affidavit if anyone else has started the probate process.

How to Find the Executor of a Will

When a testator drafts her will, she not only names individuals to inherit her property, but also appoints someone to complete the administrative task of transferring assets to heirs. This person -- called the executor -- carries out the testator's instructions while complying with requisite legal procedures. She owes duties to the deceased testator, the heirs and the court that prohibit any in-dealing or dishonesty. After the testator's death, the executor files the will in probate and begins administering the estate.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help.

Related articles

What Are the Heir's Rights Under a Probated Will?

A person who receives property or a share of an estate under a will has certain rights as soon as the will is probated. ...

How to File to Be an Administrator of Estate After a Death

An "administrator" is often the term used to describe a person who oversees an estate that doesn't have an executor. An ...

What Happens When the Executor of the Will Steals the Money?

Estate beneficiaries must move quickly if the estate executor is stealing. State laws set a window during which heirs ...

Laws on Probate of a Will in Canada

Probate laws in Canada differ somewhat from province to province. The basic structure of the probate process remains ...

Browse by category
Ready to Begin? GET STARTED