1.00 Absentees, Estates Of


In General

Special state statues regulate the distribution of the estate of an absentee. These statues generally describe the absentee as an individual, who has disappeared for an unreasonable period of time (without rational explanation) from his usual place of residence or domicile. To qualify as an absentee, the person must be unlocatable, whether the person is dead or alive. If a missing person has appointed a representative to attend to his property within the state or provided some means of contact or communication, that person does not qualify as an absentee. Under some circumstances, a nonresident, who has had no physical contact within the state, may be designated as an absentee, and the court is statutorily required to appoint a representative to protect the nonresident's property rights. This type of absentee may be an unlocatable heir or distributee in matters of succession or a non-resident defendant in matters of litigation.

Anyone with an interest in the property of the absentee is authorized by these statutes to petition the court to appoint a representative to preserve the absentee's property rights in an action in rem. Some state statues require the appointment of an attorney to be the absentee's representative; and other state statues allow the appointment of the petitioner or another lay person as representative with the right to hire an attorney. The statutory title of the court appointee varies from state to state, and these titles include: curator, representative, conservator, trustee, and receiver.

The procedural prerequisites for the appointment of the absentee's representative, and the powers, duties, and liabilities of such court appointees are statutory and state specific. The representative of the absentee is empowered by court order in compliance with the particular state statue, and derives no authority from the absentee. The absentee's representative owes a duty to the court to comply with the statute and woes no duty to the absentee personally. A judgment rendered against an absentee is a judgment in rem that is effective only as to the property seized. Statutes vary in requirements for the taking of a bond for the protection of a non-resident defendant or the establishment of a trust fund, prior to the distribution of the property.

The purpose of these statutes is to protect the property of an absent or missing person and prevent its waste or destruction during the period of absence or until proof of death. State statutes do not empower the representative to distribute or to mortgage the absentee's property. In a proceeding to obtain administration on the estate of an absentee, the court of general jurisdiction is authorized by statute to receive proof of the fact and time of the absentee's death. At any time, before, during or after the proceeding, the court may decide the necessity to administer the estate under the general statutes for administration and distribution of decendents' estates.

It is generally held that a presumption of death arises from the continued and unexplained absence of a person from home or place of residence, if no one has knowledge or information, concerning his location for a statutory period of time. Under common law, the unlocatable person is presumed dead after seven years have elapsed from the disappearance of the absentee. Under the Texas statute, the time period to raise the presumption of death is set at 7 years. State statues vary in the period of absence required to raise the presumption of death, and the legal presumption is rebuttable.

Special statutory procedures for the purpose of handling the estates of members of the military who have been declared missing in action have also been adopted by certain states.

If a corporation incorporated in State "A" fails to meet statutory requirements for doing business in state "B", this foreign corporation may be categorized by the state "B" statute as an absentee, even if the corporation has an office and employees located within the state. A foreign corporation in compliance with the doing business statutes in the state "B" is not designated an absentee, although this corporation has no physical contacts within the state. The sections below deal with the administration of the estates of individual absentees.


Power of States to Regulate the Estates of Missing Person; Constitutional Guarantee of Due Process

The state legislature has the power to administer the estates of absentees, to preserve the property for the benefit of those who have rights therein in the event of the absentee's death, and to protect the general interest of society to provide a caretaker for property. In the exercise of this power, state legislatures passed special statutes that confer power on courts to regulate and to administer the estates of absentees.

To be valid, these statues must provide for the constitutional guaranty of due process of law to protect the absentee's property rights, by including the following requirements:

  • Reasonable notice to such absentees;
  • Proper inquiry as to the fact of death of the absentee;
  • Reasonable notice to necessary parties;
  • Reasonable time after disappearance of absentee to lapse prior to divesting absentee of title to property;
  • Safeguards for the restoration of the property to the absentee in the event of the absentee's return.

Substituted service is allowed through the representative only if strict statutory formalities are followed. At the commencement of the proceeding, the absentee's property shall be brought under the control of the court and remain subject to the court's disposition. In cases where the statutory period of time for presumption of death has ended (or has run), the constitutional guaranty of due process is satisfied by a court decree that provides for financial protection for the absentee (or any person claiming under him), in the event that the absentee returns alive after the distribution of the estate.


Which Statutes To Select

It is a well-settled doctrine that states may enact statutes providing for the administration of the estates of persons absent for an unreasonable length of time, and presumed dead, if the statutes meet the constitutional due process requirements. Prior to the distribution of the absentee's estate, the Court is required to establish financial safeguards to protect the absentee, in the event he returns alive; this is the quintessential constitutional due process requirement.

Although a person has been absent and unheard of for years, the estate of a missing person or an absentee cannot be administered and distributed under the general statutes for administration and distribution of decendents' estates, unless the absentee's death can be satisfactorily proved.


Administration Of The Estates Of Missing Persons: Refunding Bonds and Trusts

One of the essential requisites of special statutes relating to the administration and distribution of the estates of absentees is that necessary safeguards be taken for the restoration of the subject property to the absentee in the event of the absentee's return. As a condition to the distribution of the absentee's estate, some statutes require the distributees to provide indemnifying bonds to guarantee the return of the funds or the property, in the event the absence returns to claim the property time period has elapsed.

In a partition proceeding to divide the absentee's real property among his heirs, some state statutes require a refunding bond to be posted after the statutory time period has passed. However, if the court is satisfied with the proof of circumstantial evidence of the absentee's death, no indemnifying bond is required upon a court finding that the absentee is in fact dead.

Prior to the end of the statutory time period for the presumption of death, some state statutes provide for the establishment of a trust for the benefit of the absentee. All monies on deposit and any proceeds earned from the absentee's property (such as rents) are paid into the trust.

To remove all the impediments to a sale of disposition of the property of an absentee, and to protect the interest acquired by any purchaser, statutes require the court to determine the legal heirs of the absentee and to provide for notice to the heirs in compliance with the requirements of constitutional due process.

If the court orders the sale of the absentee's property, some statues provide for the proceeds to be paid into the county or state treasury. Money collected under such a statute becomes a trust fund and is subject to recovery by any person establishing a right or title thereto, including the person presumed dead.

In general, this type of administrative proceeding may take one of two forms:

  • A mere trusteeship of the property of persons missing for a defined period; or,

  • A detailed and full-scale administration of the estate of a person missing for the requisite period, with provisions for distribution after a defined period which is binding even upon the missing person. Such distribution pursuant to appropriate statutes and protected by a statutory limitation against attack has been held conclusive against a missing person afterwards reappearing.


Administration Under Decedent's Statutes

Administration and distribution of the estate of a missing person, under the general statutes for the administration of the decedent's estates, based upon the presumption of death arising from absence for the statutory period of time, are not binding upon the absentee. Accordingly, all of the actions performed by an administrator for a person presumed to be dead, but who in fact is alive, are null and void .


Title Insurance on Estates of Absentees

Prior specific approval from the National Legal Department is required to insure any title affecting the estate of an absent or missing person.