Presumption of Death

Can the estate of a missing person be probated?

Sometimes individuals disappear or have an accident and their bodies are never recovered.  In cases like these, where no death certificate has been issued by the state, there are rules in place which allow interested parties to proceed with probate administration absent a death certificate.

Florida Statute section 733.209 provides that: 

Any 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.

So, how does a family member get the court to determine that a missing person is dead?  Florida Statute 731.103 pertains to evidence as to death or status and provides in subsection (3) that:

A person who is absent from the place of his or her last known domicile for a continuous period of 5 years and whose absence is not satisfactorily explained after diligent search and inquiry is presumed to be dead.  The person’s death is presumed to have occurred at the end of the period unless there is evidence establishing that death occurred earlier.  Evidence showing that the absent person was exposed to a specific peril of death may be a sufficient basis for the court determining at any time after such exposure that he or she died less than 5 years after the date on which his or her absence commenced.

A probate attorney should file a petition for determination of death with the probate court in the county in Florida where the decedent maintained his or her domicile.  Upon a finding of sufficient evidence of death to presume death, the court can enter an order and probate proceedings can commence.