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.
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….
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