In Florida, probate is the process of validating the will of a deceased person and winding up his (or her) affairs. In order to initiate probate, an interested party, typically the person named personal representative in the decedent’s will, files the original will, along with the death certificate and petition for probate. While this point might seem obvious, it is important to note that before the court will initiate a probate proceeding, there must be proof that the estate is that of a deceased person. It is not sufficient that the person is missing and assumed to be dead. There must first be a legal determination that the person is deceased. To learn more about the procedural requirements related to probating the estate of a missing person, including the requirements of Florida Statutes, section 733.209- Estates of missing persons, contact a skilled Fort Lauderdale probate attorney at the Law Offices of Stephen Bilkis & Associates who has the knowledge and resources to handle complex estate administration matters.
Estates of Missing PersonsIt is hard on family and friends when a person has been missing for a long time. While it may be difficult, at some point the family must move on and come to terms with the fact that the missing person is likely deceased. In order to move forward with winding up the estate of the missing person who is presumed to be dead, an interested party such as the person named as personal representative in the missing person’s will, a beneficiary, or an heir can file a petition with the circuit court to administer the estate of the missing person. However, as stated in FL. Stat, section 733.209- Estates of missing persons, the court will not appoint a personal representative until it has been determined that the missing person is actually deceased.
Proof of DeathThe most common method of proving to the court that a person is dead is with an authenticated copy of the death certificate. In the absence of a death certificate a person who is missing for at least 5 years can be presumed dead if the person’s absence cannot be explained after a diligent search. The date of death would be at the end of the 5 year period, unless there is evidence establishing that death occurred earlier.
If there is evidence that the missing person was exposed to some type of situation that likely lead to his or her death, evidence of that circumstance may be sufficient for the court to determine that the person died less than 5 years after the date of absence. For example, a person was on a boating trip in the middle of an ocean and disappeared. The person was never seen again. After a relatively short period of time, the court could conclude that the missing person fell overboard and did not survive.
As a probate attorney serving Fort Lauderdale will explain, in order for the missing person to be declared dead, a petition must be filed with the court explaining the circumstances that serve as evidence of the missing person’s death.
ExampleCindy Smith petitioned the court to declare her husband, Donald Smith deceased because he had perished at sea in the sinking of a cruise ship during a hurricane. Donald was a crew member of the cruise ship, Big Cruise Ship. As Hurricane Lola Lee approached, the captain of the ship, Norman Jones, took it out of port and tried to ride the hurricane out in the open sea. In the hurricane the ship capsized and sank. An extensive search was conducted by the United States Coast Guard for four days. While several bodies were recovered, the body of Donald Smith was never found.
With the help of an experienced probate attorney in Fort Lauderdale, Cindy sought to have her husband declared dead pursuant to Florida Statutes sections 731.103 and 733.209. With her petition she filed a letter from the Coast Guard which detailed its efforts to find the ship's crew. Even though it had been less than 5 years, the court issued an order declaring Donald dead since the evidence was such that the only conclusion was that Donald was deceased.
Related Statutory ProvisionsAny interested person may petition to administer the estate of a missing person; however, no personal representative shall be appointed until the court determines the missing person is dead.
Contact the Law Offices of Stephen Bilkis & AssociatesIf you are an interested party in an estate of a missing person, it is important to understand the rules related to how to move forward with the administration process, including the requirements of Florida Statutes, section 733.209- Estates of missing persons. The skilled probate lawyers at the Law Offices of Stephen Bilkis & Associates have years of experience representing clients in estate matters before the Florida circuit court, including complex matters involving delays in the issuance of letters, missing persons, and estate litigation. Contact an attorney in our office at 561-710-4000 to schedule a free, no obligation consultation regarding your case.