Handling the Legal Affairs of a Missing Person from Austin Estate Planning Attorney Liz Nielsen

Legal Affairs of a Missing Person by Austin estate planning lawyer Liz Nielsen

Approximately 600,000 people go missing in the United States each year.[1] The loved ones who are left behind must carry not only heavy emotional burdens but significant practical burdens too. People who go missing often leave behind real estate and personal property, debts and ongoing bills, insurance premium payments, employment or business concerns, pets, family support obligations, and more. But if a loved one has gone missing, and it is uncertain when or if they will ever return, these practical issues must be addressed to prevent them from becoming even more burdensome in the future.

What Should I do First?

After reporting the missing person to local law enforcement (so that an investigation can begin), the person’s loved ones must determine if the missing person drafted a plan naming a trusted helper to handle their affairs.  Meaning, if the missing person signed a financial power of attorney document which was effective on the signing, the named agent can begin handling the missing person’s financial affairs immediately. However, in some cases, the missing person might have signed a springing financial power of attorney appointing a trusted person (agent) to handle the their financial affairs only in the event of incapacitation. In most of these types of legal documents, the definition of “incapacity” includes being missing.

If this power of attorney can be located, and if its authority is broad enough, the named agent can use the document to take steps on the missing person’s behalf to access any existing accounts, pay bills, request a hold on payments or other bills pending the outcome of the investigation, and handle the missing person’s other similar day-to-day responsibilities.

If you cannot readily find the document, contact the missing person’s estate planning attorney to obtain a photocopy of the document stored in the attorney’s file. A power of attorney can be an immeasurably useful tool in such a situation.

What if the Missing Person Has No Financial Power of Attorney?

If the missing person never signed a financial power of attorney, you may need to have a guardian of the estate appointed through the state court system. Similar to a power of attorney, a guardianship of the estate grants someone the authority to handle the financial and legal affairs of the missing person. In many states, a specified period of time must elapse before the court will appoint a guardian over a missing person’s estate. There must also be sufficient evidence of real effort to locate the missing person before the court will grant the guardianship. In addition to allowing someone to handle the personal affairs of the missing person, a guardianship of the estate also allows the guardian to access accounts, sell property, and otherwise obtain funds to help with actions such as hiring a private investigator to assist law enforcement in the effort to locate the missing person.

Making a Determination of Death for a Missing Person

When it becomes clear that the missing person will probably not be found, it is time to seek a determination of death through the court system. A determination of death will allow the missing person’s loved ones to obtain a death certificate, collect life insurance benefits, wrap up the missing person’s final affairs through the probate court or a trust.

Obtaining a determination of death typically requires a formal court proceeding in the state where the missing person resided. In Texas, a person must be missing for seven consecutive years before they will be presumed dead by the court. The person seeking the determination of death must typically demonstrate to the court, using clear and convincing evidence, that all reasonable efforts have been made to locate the person and that those efforts have nevertheless failed. Such efforts might include documented evidence that law enforcement and all the person’s friends, relatives, landlords, co-workers, and schoolmates have been contacted regarding the person’s whereabouts.

In other cases, such as in the case of a plane crash or other disaster where no human remains could be recovered, there must be documented evidence that the person was at the site of the disaster when it occurred.

Once state law requirements have been met and the court issues a court order making the declaration of death, the order can be presented to the state coroner or department of health to obtain a death certificate. The death certificate will then allow the missing person’s loved ones to begin the probate or trust administration process.  This can include collecting benefits from insurance, retirement plans, bank accounts, and employers. It will also allow the missing person’s legal representative to close accounts, cancel memberships and utilities, sell business interests, and take other similar actions.

Estate and Trust Administration of a Missing Person

After obtaining a death certificate for the missing person, their personal representative (executor in a will plan, and successor trustee in a trust plan) can take control of the missing person’s estate.  If the personal representative is a successor trustee, they can take control of the trust property and determine how the trust is to be handled and distributed.

Normally, the successor trustee must sign a certificate of trust.  This is a legal declaration stating that any custodian of trust property must now deal with the successor trustee. The successor trustee will have the authority to settle the missing person’s outstanding debts and distribute the trust property to the named beneficiaries according to the terms of the trust.

If the missing person did not have a trust, or had accounts or property remaining in their individual name outside the trust, the estate will need to go through probate.  Meaning, the representative of the missing person (who is now presumed dead) will file a probate application and be appointed as personal representative of the probate assets by the court. Once appointed, the personal representative has the authority to handle the missing person’s final affairs, including selling and distributing the accounts and property.

If the missing person had a pour-over will directing the personal representative to transfer the person’s accounts and property to the trust, the personal representative will work with the trustee to distribute assets or hold them in further trust for the benefit of beneficiaries. If there is no will, the probate court will still appoint a personal representative for the person’s estate (according to state law), granting the legal authority to finalize affairs and distribute the remaining property to the person’s heirs.

What if the Missing Person Is Found to be Alive?

Although it is uncommon, there are several examples of individuals, missing and presumed dead, who returned many years later.[2]  Texas law allows the reinstatement of an estate to a person presumed dead.  If the missing person wishes to recover accounts and money distributed to heirs or beneficiaries having a court declaration of death can be important liability protection.

If, however, only a short time has passed since the presumption of death was established and the property was distributed, the individual may be able to seek a return of the money and property.  Typically, there are limits to whether a reappeared missing person who has been declared deceased can seek recovery of distributed property.  Texas law limits recovery of sold real property to reimbursement of the purchase price. Meaning, the reappeared missing person may recover the amount the land was sold for, but is not entitled to the real property itself.

In any case, you should consult with a competent estate attorney to determine the state law requirements for handling these property issues. If you need assistance with such a matter, feel free to give us a call.

Give Us a Call

Nielsen Law PLLC provides family focused estate planning to individuals and families in Austin, Round Rock, Cedar Park, and the Central Texas area.  For more information and to learn about our firm, please contact us.

[1] U.S. Department of Justice, National Missing and Unidentified Persons System, NamUS Overview Booklet p.4, https://www.namus.gov/content/downloads/publications/NamUsOverviewBooklet.pdf.

[2] Marissa Laliberte, 6 Missing Person Mysteries That Were Miraculously Solved, Reader’s Digest (Feb. 21, 2020),  https://www.rd.com/list/missing-people-found/.