The probate process is intended to settle the affairs for those who die. But what happens if someone is thought to have died while a resident of Texas, but there is no direct proof of death? Put another way, how do you settle the estate for a missing person who was previously a resident of Texas? Texas law provides the answer.
Texas law allows an interested party to probate a will or administer a person’s estate in instances where there is no direct proof that a person died. This law applies when someone is thought to have died but there is no direct evidence of the death, as in case of missing person.
Texas law allows proof of death by circumstantial evidence in this case. The law leaves it up to the court to determine what circumstantial evidence is sufficient.
Texas law also authorizes the court to issue citation to the person by publication and posting and by other methods. What this means is that the court can direct the interested person to publish notice to the missing person of the court proceeding, such as running an advertisement in an appropriate newspaper.
Texas law also says that the court may order the interested person to conduct a search for the missing person. This may include notifying law enforcement agencies, etc. or to hire a private investigator. Search costs can be paid out of the estate property.
There is no set time for which a person has to be missing to be presumed dead. The courts will expect some time to have elapsed, however.
For example, in Murillo v. Reliance Standard Life Ins. Co., No. 1:16-4 (S.D. Tex. 2017), the husband traveled to Mexico in September of 2009 and was never heard from again. Four years later, on January of 2013, the wife filed an application to declare her husband dead and to probate his estate. In February of 2014, he court declared the husband dead as of September of 2009.
Needless to say, the interested person should file a police report. The interested person can also add the name to the Texas Department of Public Safety “Missing and Unidentified Persons Online Bulletin.”
After the person is declared to be dead, the court can grant letters testamentary or of administration for the estate. This gives the appointee all of the powers needed to administer the estate.
Unlike a normal probate administration, the appointee then has to wait three years from the date their letters are granted to distribute the estate property.
If the missing person returns or it is established by direct evidence that the person was living at any time after the date the court granted the letters, the missing person is entitled to regain control over their estate and what remains of their property.
Importantly, the now found person cannot recoup property that was sold to a bona fide purchaser for value. Rather, the now found person is only entitled to the proceeds of the sale.
A common and somewhat similar situation comes up when there are minor children or disabled adults who are part of the probate process. There are special considerations that have to be addressed. Let’s consider that topic next. Click here to continue reading. >>>>
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