When dealing with probate and estate planning issues, an unfortunate prerequisite is death. Someone has passed away and loved ones have to scramble to get their ducks in a row. The assumption is that death is concrete, tangible and easily ascertained. Its everything else that’s supposed to be complicated.
Though that’s often true, it isn’t always the case. Instead, sometimes, death is the tricky part that isn’t entirely clear. What do you do then? Keep reading to find out.
The Uncertainties
First things first, what do we mean when we say that death is unclear. The quintessential example is a missing person. When someone disappears, his or her family may never know what happened. In some cases, a person takes off, leaving no trace. In other instances, kidnapping or other foul play is expected. Sometimes, hikers, mountain climbers, deep-sea divers and others set out on adventures and are never heard from again. In each case, their loved ones may suspect that theyve passed away, but they almost always lack definitive evidence.
If something like this were to happen, it can obviously be extremely hard for family and friends on an emotional level. Beyond that confusion, a disappearance leads to legal uncertainty as well. Many overlook the fact that a prerequisite to launching probate is demonstrating that the person is no longer alive. In the vast majority of cases this is simple, just produce a death certificate and the issue is resolved. In cases where there is no death certificate to be found, a determination of death in absentia may be required
So how does it work if someone is missing and presumed dead? Its a commonly held belief that if a person goes missing they are presumed alive for up to 7 years, after that the presumption shifts and only then are they presumed dead. While this is true in some places (Illinois is a good example), it isnt the case everywhere.
Minnesota Probate Law
Here in Minnesota, Section 576.14 of the Minnesota Statutes makes clear that a person missing for a continuous period of four years shall be presumed to have died four years after the date the unexplained absence began. Minnesota law states that for this presumption to exist there must have been a continuous period of absence and a diligent search on the part of others. That means that after four years, a missing person is presumed dead and thus the probate or other property division process can begin.
But what if its been less than four years? Do you have to wait? Thankfully, there are exceptions to this general rule. Though the presumption of death only applies at the four-year mark, a person interested in getting someone declared dead can try at any time before that to overcome the presumption of being alive. In Minnesota, the law says that if a person is exposed to a specific peril of death that can be sufficient to determine that he or she died prior to the four-year mark.
The presumption of death isnt hard and fast, its a line that marks the point when the burden of proof shifts. Before that, if you want to have a person declared dead, it is up to you to bring forward compelling evidence that he or she is no longer living. If the judge agrees, then the presumption can be overcome. If not, you will have to wait until the burden of proof shifts in your favor, potentially a number of years depending on your location.
Minnesota Estate Planning and Probate Lawyer
An experienced Minnesota estate-planning lawyer can help walk you through the probate process, answering questions along the way. For more information on estate planning in Minnesota, along with a variety of other topics, contact Joseph M. Flanders of Flanders Law Firm at (612) 424-0398.
If you’re able to give free advice (would be a first in my experience with lawyers, no offense) – what happens to someone’s house if he goes missing (for over a year) and is not yet declared legally dead? In the case in question the missing person owns and has paid off the house, which has been in the family for two generations, and his brother wants to make sure the house stays in the family and would like to enter the house to look through his brother’s possessions. Would he need to pay property taxes, etc. to keep the house in his missing brother’s possession (until declaration of death) and enter the house?
Thanks
Hello: All this is an unusual situation, I have heard of things like this before. Until a person is declared legally deceased, the property belongs to that person. All normal property rights/laws still apply to that person. If someone wants to “keep the home in the family”, that person would need to prove that the home owner was legally dead. From there, assuming the person is dead, the laws of probate and estate administration would delineate how any property of the deceased would be transferred/utilized.
Where does the death certificate come from? Does it come from the state where the person lived or where they went missing/presumed dead?
Hello. This is a tough question. I asked a physician and she had similar comments to my thoughts: likely where the person went missing or was presumed dead. However, if someone was trying to prove another person’s death, I am sure that the any state would require proof of the person’s death. Obviously, this may be more difficult.