Death in Absentia
Part of the fun of being an estate planning attorney is when people ask you interesting questions. I was recently asked what would happen if somebody disappeared on an African safari. Sure…a pretty random question for most people, but this client saw a friend go through this process after a loved one disappeared and never returned. I had no idea about the actual process, but was able to agree it would involves courts and lots of time. This friend spent about 10 years trying to resolve the matter. That’s a long time!
When you don’t know something obviously you go straight to
Wikipedia the law library and crack the books. Just kidding I went straight to Wikipedia because I don’t plan on ever resolving a matter of a missing person. So what happens? Turns out like any legal question…it depends. Depends where you reside, where you disappeared, the circumstances, etc. Whatever the circumstances, somebody has to go to a judge and ask her to declare the missing person dead, so that a death certificate can be issued.
Absent a probable cause of death like a plane crashing into the ocean, Wikipedia writes judges in the US-of-A look at the following factors:
- A person’s being missing from their home or usual residence for, typically, seven years (the period varies from state to state)
- Such absences being continuous and without explanation
- Such absences being accompanied by a lack of long-distance communication with those most likely to hear from them
- Diligent but unsuccessful search for that person and inquiry into their whereabouts.
That sounds like a long pain in the ass. Imagine waiting through all of that before your assets can be released and passed on to your surviving loved ones. So what should a person do who is worried about the ol’ mysterious disappearance?
Opting Out of Shenanigans
If you are worried about 1) mysteriously disappearing, and/or 2) having your loved ones wait a long time to get your money and assets, you should look into some trust planning. You can opt out of that whole spend-seven-years-waiting by throwing in some sweet provisions into your trust. We write this into our trusts:
- The term “disappearance” shall mean the individual’s whereabouts remain unknown for a period of sixty (60) days. If any beneficiary (including either of us) is not seen or heard of for a period of one year and no physical remains or body has been recovered it shall be presumed that such beneficiary is not alive.
Boom! Take THAT court system! Set up your revocable living trust and ask your life insurance company what their policy is on disappearance. That way you know when your beneficiaries will get paid (also ask if they cover death by lions).
Colin Ley is a Seattle estate planning attorney. He is also the co-founder of LayRoots along with his wife, Shreya.
P.S. Reading about mysterious disappearance obviously leads into reading stories about people faking their own deaths. John Darwin fake-drowned on a canoe trip. He and his wife collected life insurance money and eventually moved abroad. He was busted when a Google image search showed a picture of him buying a house in Panama. Ooops!