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Did You Know That A Person May Be Presumed Dead After A Three Year Absence

New York estate settlement involves many different types of rules and statutes.  When a person dies the first question to be asked is whether the decedent had a Last Will and Testament or whether he died intestate.  Once this fundamental issue is established either a probate petition or a petition for Letters of Administration can be filed with the Surrogate’s Court.

The New York Probate Lawyer Blog has published numerous articles concerning the need to provide the Court with all the names and addresses of a decedent’s next of kin.  It is not uncommon for kinship information to be missing or difficult to obtain.  Sometimes the services of a professional genealogist are needed to track down missing heirs.  Also, the Surrogate’s Court may require that a kinship hearing be held to determine the status of individuals claiming to be a decedent’s distributees

While finding lost heirs is important, there are situations when determining the status of a possible decedent arises.  The problem is showing whether this person is alive but just avoiding contact, or whether, in fact, the person is deceased.  During this period of uncertainty, the missing individual’s affairs and assets are in limbo and not being attended to.

Estates, Powers and Trusts Law section 2-1.7 entitled “Presumption of death from absence; effect of exposure to specific peril” provides a procedure whereby a missing person can be presumed dead under the law.  Essentially, the statute provides that if someone is absent for a period of three consecutive years and if the absence is not explainable, the person may be presumed deceased after a diligent search.

Of course, the Courts are very cautious before declaring someone to be deceased.  However, if appropriate proof is presented, then the Court can make the decision allowed by the statute.  Such was the situation in a recent Nassau estate case entitled Estate of Shepherd, decided by Nassau Surrogate Margaret C. Reilly on March 15, 2019.

In Shepherd, the petitioner’s son had been missing after he had escaped from a mental health facility.  The petitioner wanted to administer the son’s estate that consisted of approximately $70,000.00.   The evidence presented to the Court showed that the son had not been seen since 2012 and that an exhaustive search by law enforcement and a review of all of the son’s social media and financial accounts indicated no activity during the ensuing years.  As a result the Court determined that the son was deceased in 2015, which was three years after the time he disappeared.

As can be seen from Shepherd, estate cases can be very complex and present unusual problems.  There may be the need for estate litigation.  I have been assisting clients in estate cases for over 35 years.  Call me now for a free review of your issue.  We provide reasonable and flexible fee arrangements and personal representation.

New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 30 years resolve issues relating to probate and estate settlement throughout New York City including Queens County and the Bronx.   If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.

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