ScrobTheFancyTurtle asks: Love your video on what happens when people are accidentally declared dead. But it got me wondering, what happens if you make a will, go missing, so your will is executed, then turn up alive later? Do you get your stuff back?
As we discussed in our article on what happens to a person who is accidentally declared dead and the process in getting declared alive again, tens of thousands of people die each year across the globe by a simple clerical error, at least as far as their respective governments are concerned. However, what we didn't mention is that many thousands more people are more purposefully declared "dead in absentia" each year.
As you've probably surmised from the term used to describe these deaths, being declared dead in absentia occurs after a person goes missing. When this happens, their will is probated and estate settled. But what happens if they aren't dead at all and turn up later, perhaps after helping a tempestuous, but lovable bunch of vertically challenged individuals reclaim their homeland from the clutches of the Chiefest and Greatest of Calamities? How do they go about getting their stuff back, or do they even have any rights to it at all anymore?
To begin with, how does one go about getting declared "dead in absentia" in the first place? After all, in most countries adults are perfectly within their rights to uproot and go start a new life somewhere else without telling anyone, or even go on a lengthy adventure with a wizened grey wanderer.
Before we jump into the meat of all this, just a quick note, as this particular topic deals with estate distribution and the like, we'll focus primarily on adults who disappear, though many elements of what we're about to cover does also technically apply to children.
As with many things, there's no uniform, worldwide policy concerning what exact set of circumstances need occur or even how long a person needs to be missing to be declared dead in absentia, though there are many similarities in the process from country to country.
In general, the courts will have to be directly involved in these cases and they will almost always err towards presuming the person is actually alive. However, if the person has been missing for a specific length of time, with no one who would otherwise normally hear from them having contact, and a diligent (unsuccessful) search has been conducted to find them, the courts will ultimately determine that the person indeed must be deceased, even if there is no direct, hard evidence that they are, in fact, dead.
As to the search, to dispel a popular notion frequently perpetuated by Hollywood, a person does not have to be missing for more than 24 hours before authorities in most countries will act. In fact, while almost all missing person cases are resolved of their own accord in relatively short order, in rare more legitimate missing person cases, every hour that passes reduces the probability that said missing person will be found and nobody is more aware of this than the authorities who deal with this stuff every day. Thus, they often actually recommend reporting missing people as soon as the person is determined to be missing.
That said, given there is only so much manpower available at any given time and, again, most missing person cases resolve themselves of their own accord rather quickly, the appropriate authorities do have to prioritize what cases they take on immediately. Thus, rather than strictly going by how much time has passed before an investigation is opened, they'll weight a number of factors including the probability that the person is truly missing, and not just off doing something without telling anyone. If the disappearance is highly unusual given the person's normal daily habits and no good explanation can be thought up for the disappearance, this will bump the case up in the priority list as a potential legitimate missing person case. Just as important in getting the authorities to look into the matter immediately is the probability that the person missing might be in some sort of peril given the known facts of the case.
Once an investigation is started, if nobody in the person's life seems to have heard from them or knows where they are, authorities usually resort to monitoring the person's digitally trackable life, for example where applicable monitoring financial accounts, cell phone, email, social media accounts, etc., as well as checking if the person has attempted to go through any border check points. As you might imagine, disappearing without a trace in the modern world has become increasingly difficult, meaning these days authorities are much more frequently able to locate the person if they are indeed still alive, compared to even just a few decades ago.
It also helps that many people who are choosing to disappear from their previous lives are not trying to hide from authorities, so the use of personal bank accounts and the like tends to continue.
If they are found, the authorities will typically respect the person's right to disappear from a former life, unless there are legal reasons not to, such as someone running from financial obligations or the like. As Miranda Napier of the Missing Persons Bureau notes,
If someone has elected to leave their friends and family… and we find them and they express this wish, then we would close the missing report and advise those making it that they were safe and well, but we would not be able to tell them where they were.
Speaking of financial obligations, when trying to decide if some missing person might actually be dead, authorities will also analyze whether the person missing might have had motive to go missing in the first place. For example, if they were having extreme financial difficulties, were in legal trouble, having relationship or family problems, etc.
As they move along in the process, authorities will also usually check with local coroners to see if any unidentified bodies have been found that match the description of the missing person.
But what about if all of this turns up nothing? Next, it becomes a waiting game. In regards to the length of time needed, as noted, this varies, but a commonly observed rule of thumb is that the person has to have been missing for at least 7 years, unless circumstances of their disappearance seem to indicate imminent peril, thus a high probability that the person is, in fact, deceased.
For example, many bodies couldn't be identified or recovered when the World Trade Center towers collapsed on 9/11, so people who worked there who went missing directly after would have an extremely high probability of being declared dead in absentia almost immediately should their loved ones request such of the courts.
The World Trade Center towers.
Few cases are so cut and dry, however, and in all cases you generally need to get a judge to agree with you, with the burden of proof lying with the people trying to get someone declared dead earlier than the required number of years. The judge in these cases will then determine if, given the evidence, the probability has shifted from presuming the person is alive to it being reasonable to presume they are dead, again usually erring on the side of assuming the person is still alive.
As former assistant attorney general of Illinois, Floyd Perkins notes, "Before seven years, anyone who wants you declared legally dead has to offer evidence that you're not alive. But after you've been missing seven years, anyone who wants you declared alive has to offer evidence that you're not dead."
As for more specifics, in the United States the authority to declare someone dead in absentia falls to the states themselves, each of which have their own specific rules. For example, while most states go with the seven year general rule, states like Georgia and Minnesota instead go with four years.
Moving around to the other side of the world, in Italy, it actually takes 20 years for someone to be declared dead in absentia, barring compelling evidence to decree this sooner. In Poland, the time span is 10 years. In Russia, it's 5. Like in many states in the U.S. and many other parts of the world, in the UK, there is a 7 year waiting period before the authorities can make this call.
It should be noted here that until the authorities declare the person dead, the missing person's financial affairs are basically in a state of bureaucratic limbo. To illustrate the issues here, consider the case of Vicki Derrick, a woman whose husband Vinny went missing in 2003. After an investigation to locate Vinny turned up nothing, he was presumed missing by the police.
The problem was that in the eyes of the law Vicki's husband was still alive and, thus, she was still married to him with all obligations that implies, still shared a mortgage on a house she could no longer afford with just a single income, but could also not sell because her husband wasn't around to put his signature on the necessary paperwork to sell it.
Furthermore, Vickie couldn't claim her husband's life insurance policy nor access his personal accounts to settle his various financial obligations until the courts finally decided enough time had passed to declared him dead in 2011.
In a bizarre twist, Vinny's body was found just two months after he was finally declared dead in absentia. As Vicki would later recount,
There was a huge sense of relief, which I felt guilty about. But at the same time I had already grieved. Deep down I think I knew the day he disappeared he wasn't coming back. It was so out of character that something terrible must have happened for him not to come home.
It turns out that in the UK alone, while about 98% of the 250,000 or so people that go missing each year turn up within a week of their disappearance, about 1% of these people go missing for at least a year. In a little over half of these 1% cases, the person is ultimately either found dead or eventually declared dead in absentia, but the other half, over 1,000 missing people annually, turn up alive in the end.
As a direct result of cases like these, the government passed the Guardianship (Missing Persons) Act in 2017 which, 90 days after the disappearance of the individual, allows the loved ones of a missing person to assume some degree of control over their affairs. Thanks to this, many of the problems people like Vickie faced can be avoided, mitigating the potential damage to a missing person's financial situation as well as providing a degree of help in cutting through a lot of red tape for their loved ones during a tumultuous time.
No such nationwide laws exist in the United States and, thus, for example if any benefits would otherwise have been paid, the beneficiaries involved usually simply have to wait the required period for the death in absentia to be declared before they can begin receiving them, assuming they can't offer a sufficient body of evidence to get the person declared dead early.
Alright, so that's how you could potentially be declared dead and have your estate pass to others without actually being dead. So let's now talk about your stuff.
In a nutshell, a person declared dead in absentia is, by the letter of the law, dead.
Shocker, I know.
As such, the actual process of probating their will is functionally identical to a more straightforward death in most countries. Likewise, death benefits will similarly be paid out in a timely manner, though some insurers may require a person making a claim in these cases to jump through a few additional hoops, such as providing evidence a good faith effort was made to locate the person before death in absentia was declared. With this information being necessary to declare a person dead in absentia anyway in most cases, this usually is a pretty easy hurdle to jump over at that stage of the game.
But let's say after all this happens the "dead" person turns up very much alive and wants all their stuff back from the clutches of the Sackville Baggins. What happens then? This is a far more thorny legal issue and there's little universal precedent in law to say what exactly should happen, though in the vast majority the court cases we could found, the heirs typically weren't required to give anything back.
In the US especially what happens in this unlikely scenario varies slightly from state to state, with some dictating that the person has no right to any of their stuff back and others adding caveats, including Pennsylvania who deals with the matter perhaps most sensibly of any region we looked at.
Another example of a state with a caveat is Nevada, where a missing person has up to a year after legal proceedings to divide up the estate have begun to veto the whole thing and get their money and property back, despite having been previously declared dead in absentia. If a missing person turns up after this grace period, they will no longer have any claim to their former assets.
To give the missing person as much of a chance as possible to prevent this from happening if they are indeed still alive, a person laying claim to the estate to the missing person in this case must "give notice by publication". This mostly just means doing something like putting an ad in a local paper or the like that they are going to make a claim on the estate, which is sure to be read by no one but the intern who processed the notice, but at least gives the appearance of accomplishing something, so is a bureaucrat's dream law.
Moving on to Pennsylvania, the state law very sensibly requires anyone laying claim to a person's estate who has been declared dead in absentia to secure a refunding bond before assets will be distributed. As Pennsylvania-based attorney Patti Spencer states, "The person entitled, a spouse or kid, has to post a refunding bond, before the property is distributed. If the person comes back… and someone else has her property, they have to give it back, and if they can't, then this bonding company has to make it right."
This is something that happened relatively recently as 2013 when a woman named Brenda Heist returned after her presumed death in 2003. She'd actually been living on the street for the last decade and hadn't even been aware she had been declared dead.
UK law, as with many other countries we looked at, seems to more or less handle things about the same as the general U.S. court systems. If the person has been declared dead in absentia and sufficient time has passed, which is usually needed to get declared dead in absentia in the first place, the courts will usually rule that the heirs aren't required to give anything back, though, of course, any heirs are free to do so at their own discretion. The courts simply usually won't require them to do so if a lawsuit is raised over the matter, though, as with all things in life, their are exceptions.
But what about life insurance and various death benefits? As you might imagine, the insurance companies will almost always seek to get their money back, unless the cost to do so exceeds the amount paid out. But from whom do they try to get the money back from? While, as with so much of what we've just discussed it's not universally true, if a missing person's loved ones have them declared dead in absentia and then claim against their life insurance policy in good faith (and thus aren't involved in any fraud here), they won't generally be sued for the money back, or, even if they are, the courts are unlikely to side with the insurance company in these cases.
The life insurance companies tend to have much better luck going after the person who was incorrectly declared dead in absentia. After all, the missing person knows they are still alive and usually went missing on purpose, setting off the chain of events that required the insurance company to eventually pay out on a policy when they otherwise shouldn't have been obligated if the missing person had just told someone they weren't dead.
For example, consider the case of John Burney who disappeared, in this case in a way that made it seem very likely he was dead, in 1976 after getting in some rather hot water owing to mismanagement of his company, causing it to go bankrupt. About six years later, in 1982, he was found to be alive when he decided to return home to visit his father who had been seriously injured. Although Burney's insurance company initially filed suit against the beneficiaries of his life insurance policy – specifically his wife and business partners – the courts ruled that they didn't have to return the money. Burney, however, who didn't receive a dime of that insurance money, did, to the tune of $470,000 (about $1.2 million today).
So to sum up, if you do happen to mysterious disappear and then turn up again after being declared dead, chances are your stuff will be gone unless your beneficiaries are feeling particularly generous and choose on their own to give it back. And should they have cashed in on a life insurance policy you had, assuming they really thought you were dead when they did it, you are likely going to be the one on the hook to pay that back, even if you didn't benefit from it in any way. To add insult to injury, particularly if you live in the United States, prepare yourself for quite the lengthy ordeal in getting yourself declared alive again in the first place, with a number of rather severe consequences while you try to prove to everyone that you are, in fact, not dead.
Thus, unfortunately for the owner of a certain estate along Bagshot Row, given his disappearance most definitely was out of the ordinary for his normal behavioral patterns and, beyond that, he was last seen, at least in the film adaptation, noting he was "going on an adventure" (always a dodgy business), in either case those seeking his estate seem perfectly within their rights to have had him declared dead in absentia. Assuming Shire law did not have a grace period for legal right to recover an estate after such a declaration, like Nevada, it seems likely all property already auctioned off would not have been obligated to have been returned.
This article originally appeared on Today I Found Out. Follow @TodayIFoundOut on Twitter.
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