Each year, approximately 600,000 individuals are reported missing in the United States.

When a person goes missing, they often leave behind obligations such as real estate and personal property management, debts, recurring expenses, insurance premiums, employment or business concerns, and family support responsibilities. Addressing these legal and financial matters is crucial to prevent undue complications and burdens for the missing person’s loved ones.

Initial Steps

The first step in addressing the legal affairs of a missing person is to report their disappearance to local law enforcement to initiate an investigation. Concurrently, the family or close associates must assess whether any legal authority exists that enables a trusted individual to manage the missing person’s affairs.

If the missing person executed a financial power of attorney (POA), the designated agent may begin handling financial and legal matters immediately. In some cases, the missing person may have established a “springing” financial POA, effective only upon incapacity. Such documents frequently define incapacity to include an individual being missing. If a valid POA exists and its scope encompasses the necessary authority, the agent can act on behalf of the missing person to manage cash accounts, pay bills, request payment deferrals, and handle other responsibilities.

If the document cannot be located, the missing person’s estate planning attorney should be contacted for assistance in obtaining a copy. A well-drafted POA can serve as an invaluable tool in navigating the legal complexities arising from a person’s disappearance.

When No Financial Power of Attorney Exists

If no financial power of attorney has been executed, it may become necessary to petition the appropriate state court for the appointment of a conservator. A conservatorship grants legal authority to manage the financial and personal affairs of the missing person. State laws often require a specified period to pass and evidence of exhaustive efforts to locate the missing person before appointing a conservator.

A conservator’s authority may include accessing accounts, liquidating property, and securing funds for tasks such as hiring private investigators to assist in the search for the missing person.

Obtaining a Court Determination of Death

If it becomes evident that the missing person is unlikely to return, seeking a court-issued determination of death may be necessary. This process permits loved ones to obtain a death certificate and take essential actions such as collecting life insurance benefits, initiating probate or trust administration, liquidating assets, and distributing retirement accounts.

The requirements for a court determination of death vary by jurisdiction. Typically, the missing person must have been unaccounted for a statutory period—often five years or more—unless specific circumstances, such as evidence of death in a disaster, exist. The petitioner must demonstrate, through clear and convincing evidence, that reasonable efforts to locate the missing person have been exhausted. Documentation from law enforcement, interviews with acquaintances, and evidence related to specific events may all be required to meet this burden.

Once the court issues a declaration of death, the order can be used to obtain a death certificate, enabling the settlement of the missing person’s estate or trust.

Estate and Trust Administration

With a death certificate, the successor trustee of the missing person’s trust may assume control of trust assets and oversee their administration and distribution according to the trust’s terms. Successor trustees typically execute an affidavit or certificate of trust to validate their authority to manage trust property.

If the missing person did not establish a trust, or if certain assets remain outside the trust, the probate court will oversee the distribution of those assets. A probate petition may be filed to appoint a personal representative who will manage the estate, address outstanding obligations, and distribute property in accordance with the missing person’s will or state intestacy laws.

If the will includes a pour-over provision, the personal representative works with the trustee to transfer assets into the trust for distribution. In the absence of a will, state laws govern the distribution of the estate’s assets to heirs.

If the Missing Person Is Found Alive

In rare but notable instances, individuals presumed deceased have returned. In such cases, the declaration of death provides legal protection to those who acted in good faith in distributing the missing person’s assets. However, state laws vary regarding the recovery of property by a returned individual. Generally, time limits and legal restrictions may limit a reappeared person’s ability to reclaim previously distributed assets.

Legal Assistance

Navigating the legal complexities surrounding a missing person’s affairs requires the guidance of a knowledgeable attorney. If you require assistance managing the estate or legal affairs of a missing loved one, contact Davis Law Group for professional advice tailored to your situation and for your peace of mind.