Say I leave my estate to my child, who has run away from home. (I know I’ve mentioned here that I’m drafting a will, and that I’m estranged from one of my kids, but this is purely hypothetical—I’m thinking about writing a detective novel.) Now say I die, and she is still missing. If she is deceased, my brother would get my estate, but all he or anyone knows is that my child hasn’t been seen for several years.
What has to happen for my brother to inherit? Does my entire estate have to be expended searching for my kid? Does a certain amount of time have to pass without turning up a clue? Is there some standard of evidence that allows a judge to declare my brother to be the heir? How does this work?
Again, this is not a search for legal advice, other than hypothetical. My protagonist is a detective who’s looking for a missing heir, and I’m trying to figure out how hard he needs to look, how long he needs to stay on the case, etc.
Also if anyone knows of any novels with this plot, warn me of that so I can read them. I’m aware that the whole missing-heir thing is kind of a chestnut, but I can’t remember any specific novels or films about a detective doing such a search. I’ll open a separate thread in Cafe Society if this avenue proves fruitful, but mainly I’m interested in the nuts and bolts of the task of searching for a missing heir.
Isn’t there normally a seven-year limit for missing persons? I think that if the person hasn’t re-appeared by then, you can have her declared legally dead.
Not a great answer, but slightly related anecdotal evidence:
My cousin divorced her husband, who then ran off to Mexico. They had a daughter. A few years later, my cousin meets a guy who soon becomes her new husband. After a couple of years of marraige, and about 5 to 7 or so years of no word from ex, they decide he (now hubby) wants to legally adopt cousin’s daughter. Their lawyer attempted to contact ex through last known adrress and closest known next of kin to no avail. Cousin and now hubby are told to place an ad in the classified section of their newspaper and ex’s last known city of residence newspaper stating their wish and asking for objections from ex (named specifically) for a set period of time. After that was done, adoption went thru without a hitch.
Almost 15 years now, and still no word from ex, btw.
Well, this is just curiousity, I suppose, but what happens if she’s declared legally dead, and then it turns out she went off to the North Pole or the South Seas, and then turns up? Is she entitled to any money, or is it “Too bad, kid, we searched for ya. Tough luck.”? This is really focussed on the issue of how diligent a search must be done, legally.Obviously it would benefit the competing heirs not to do a very careful search at all, but how far does the law compell a search? And if the funding comes from the estate, as only makes sense, isn’t the limit on the expense or the extent of a search just the amount left in the will? If it’s possible that she went to North Pole, must you search every expedition that headed north in the last seven years?
Generally the government abhors a forfeiture. The estate will not escheat to the state unless there are NO heirs to be found after a diligent search, including notice by publication in appropriate publications. In the OP’s hypothetical, the brother would inherit the estate if diligent search produced no daughter. If the daughter reappears later she could sue the brother for constructive trust (i.e., he was merely holding the estate for her). Then she has the burden to prove she should get the money.
And all states have their own probate laws. Whatever state you’re putting the story in, look up their statutes. Or take an estate lawyer from there out for drinks and pump him/her for information. Or make up a state and invent your own laws.
As to the novels with similar plots question, the first one to my mind is Reflex by Dick Francis. Philip Nore, jockey and amateur photographer, sets out to look for his missing half sister. He is not really a detective, and the person whose estate will be divided among the heirs is not dead, so it isn’t quite your story, but it is similar enough that it might be worth reading. Philip’s grandmother is dying and wants to leave her money to future generations, she doesn’t much like Philip, her other grandson happens to be gay-- no future generations there, and wants Philip to find Amanda so that Amanda can recieve a generous inheritance. In between work on this mystery, Philip solves photography(and horse racing) related puzzles left by a dead photographer.
Yes. In the links Gfactor provided, it’s clear that what happens is that if the heir cannot be located, the law may choose to treat the daughter as predeceasing her father. In that case, rather than having the estate escheat, the law may provide for the estate to go to either as the will indicates (i.e., if the will has a residual clause or some other clause dictating what happens if the daughter were to die before her father), or if not, then the estate would pass as indicated by the intestacy laws.
I was acquainted with an heir-finder at one time. He approached it from a different angle. I can’t remember whether he had a Private Investigator’s license. He did have experience and knew how to find people.
He spent time frequently at the Probate files at the San Francisco Superior Court. He looked for filings where there were (a) some assets, and (b) one or more heirs (preferably one) that weren’t immediately located.
I believe many of his cases were being administered by the county’s Public Administrator*, where they would go through the legally required procedures and a standard diligent search, and start waiting for enough time to pass. This guy would look harder (you will see why in a minute) and locate the heir. He would approach him and basically say, ‘I know something you don’t know, and for 1/3 of the benefit I’ll tell you.’
The 1/3 was negotiable, often it went to other figures.
I asked him, when you contact the heir, what if he says, ‘Oh I bet it’s about Great-Uncle Silas the Miser’ and won’t sign for a percentage–just goes to the probate court himself. The heir-finder said he’d apply to the Probate Court for the award, and hope to get it.
Now you know everything I know about finding heirs. I got the impression it could be a slightly shady way to make a living.
*The Public Administrator takes the responsibility when deceased dude is some loner in a hotel room with $100,000 in the bank, or whatever. Also, DD with $7 in his pocket. Any DD with no one available to tidy up after his life ends.
I disagree. The issue in the OP is not that there is no alternate heir. A possible escheat is not a problem. Gfactor’s answer was misleading and did not answer the OP’s question.
Did you look at the links? The first one is certainly not clear to the average person. It may have been clear to *you * - you have been to law school. The second one leads to a commission’s suggested changes in the NJ probate code and it included no indication that the recommendations were ever adopted into the code. So someone reading that in NJ might assume it is the law and may be woefully wrong making that assumption.
IF the daughter never shows, depending on the law of whatever state P.R.R. puts the action, that state’s law will determine where the estate goes - after whatever time the legislature decided was adequate to look for an heir, it could, for example, go to the state treasurer as in the Michigan law, or as in the proposed NJ law - it could go to the next heir in line.
So more directly answering the OP based on Michigan law:
The personal representative (used to be called the executor) must show diligent inquiry. There are no fixed standards, but you don’t have to exhaust the estate looking.
When the personal representative shows that daughter was not located after diligent inquiry, the money **does not ** go to your brother. It goes to the county treasurer.
The county treasurer holds the money for three years, during which time your daughter could show up and claim the money.
After three years, it goes to brother. Daughter can’t show up later and claim it.
This appears to be the current rule in New Jersey:
Under this statute:
The person administering the estate tells the court that they can’t locate an heir (daughter).
The court can order them to take additional steps in order to locate the heir.
The court orders the property held for two years from the date you died.
If the daughter isn’t located within two years, the estate goes to brother.
