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Can You Probate An Estate For A Person That Is Missing In Michigan?

by | May 17, 2021 | Wills, Trusts And Estates |

 

Without the body of the deceased person available as proof, it becomes significantly more difficult to declare someone as legally dead.  When someone is missing, it doesn’t necessary mean that they are deceased in the eyes of the law, but that person may still have an estate that needs to be administered.  There will be questions regarding who rightfully receives pension payments, what happens to life insurance policies, or how land titled to the missing person will be handled.  Michigan law provides a process for having the court declare whether someone that is either missing or presumed dead should be considered legally deceased.

The probate court shall determine that someone is deceased based on one or more of the following:

 

[1] DETERMINATION OF DEATH ACT – Death occurs when an individual is determined to be dead under Michigan’s Determination of Death Act.  MCL 700.1207(a).  An individual who has sustained either of the following is dead:

  • “Irreversible cessation of circulatory and respiratory functions.” MCL 333.1033(1)(a).
  • “Irreversible cessation of all functions of the entire brain, including the brain stem.” MCL 333.1033(1)(b).

A physician or registered nurse (those authorized medical personnel as designated by the health care facility) can declare death according to law.

 

[2] DEATH CERTIFICATE – “A certified or authenticated copy of a death certificate purporting to be issued by an official or agency of the place where the death purportedly occurred is prima facie evidence of the decedent’s identity and of the fact, place, date, and time of the decedent’s death.”  MCL 700.1207(b).

 

[3] GOVERNMENTAL RECORD PRESUMING DEATH OR MISSING – “A certified or authenticated copy of a record or report of a governmental agency, domestic or foreign, that an individual is missing, detained, dead, or alive is prima facie evidence of the individual’s status and of the dates, circumstances, and places disclosed by the record or report.”  MCL 700.1207(c).

 

[4] PETITION FOR PROBATE COURT TO DECLARE DEATH – In the absence of prima facie evidence of death from a death certificate or certified government record, “the fact of death may be established by clear and convincing evidence, including circumstantial evidence.”  MCL 700.1207(d).  A petition must be filed with the probate court, notice must be given to all interested persons and a formal hearing must be held where the judge determines whether there is sufficient legal proof that the person is deceased.  Reasons why a court may not declare a missing person to be deceased include concerns that a person might actually be fleeing from significant debts or that the person is simply trying to evade criminal charges from a particular jurisdiction.  It would not be uncommon for the prosecuting attorney or the missing person’s creditors to appear at such a hearing and contest whether the missing person is really gone.

 

[5] PETITION TO ESTABLISH DEATH OF ACCIDENT OR DISASTER VICTIM – The procedure to establish the death of an individual who is an accident or disaster victim and whose remains have disappeared or are unidentifiable is as follows (MCL 700.1207(e)):

  • If an accident or disaster occurs that apparently causes the death of the individual, any of the following individuals may petition the court for a determination of the cause and date of the presumed decedent’s death:
    • The medical examiner, sheriff, or prosecutor of a county where the accident or disaster occurred. MCL 700.1208(1)(a)(i).
    • The spouse or a next of kin, heir at law, devisee, personal representative named in a will, or creditor or debtor of the presumed decedent. MCL 700.1208(1)(a)(ii).
  • Venue for this proceeding is proper in of the following:
    • The court in a county in which the accident or disaster or any part of the accident or disaster occurs. MCL 700.1208(1)(b)(i).
    • If the accident or disaster occurs upon or within the Great Lakes or their connecting waters, the court in a county adjacent to the scene of the accident or disaster. MCL 700.1208(1)(b)(ii).
    • If the accident or disaster did not occur in Michigan or adjoining waters, the court in the county of the presumed decedent’s domicile. MCL 700.1208(1)(b)(iii).
  • A petition to determine the cause and date of death shall not be filed less than 63 days or more than 7 years after the occurrence of the accident or disaster. MCL 700.1208(1)(c).
  • The petition “shall set forth the facts and circumstances concerning the accident or disaster, the reasons for the belief that the presumed decedent died in the accident or disaster, that the presumed decedent has disappeared or is unidentifiable, and the names and addresses of all individuals known or believed to be heirs at law of the presumed decedent.” MCL 700.1208(1)(d).
  • “At the hearing upon the petition, the court upon its own motion may, or upon motion of an interested person shall, impanel a jury as provided by law. If it is established by a preponderance of the evidence presented at the hearing that an accident or disaster occurred in which the individual named in the petition was killed or may be presumed to have died, the court shall enter an order that establishes the location of the accident or disaster, the date of death, and, if possible, the time of death and that states that the individual is dead.” MCL 700.1207(f).
  • A certified copy of this court order is sufficient when presented to the medical examiner for the preparation of a certificate of death. MCL 700.1207(g).

 

However, an individual whose death is not established under any of these procedures, and who is absent for a continuous period of 5 years during which he or she has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry is presumed to be dead. The individual’s death is presumed to have occurred at the end of the period unless there is sufficient evidence to determine that death occurred earlier.  MCL 700.1208(2).

If a petition to declare the death of a missing individual is successful, then that person’s assets can be distributed as if he were actually deceased.  If the individual had a valid last will and testament or revocable trust, then those assets can be distributed according to the terms of those documents.  If the person did not have a will or a trust, then those assets will be distributed according to the intestate laws of the State of Michigan.  The normal probate procedures would apply so the lawful creditors of the missing person may be entitled to have their claims satisfied by the estate’s assets.

The process to declare a missing person to be deceased is not easy and there are several court rules and notice requirements that apply.  A skilled probate lawyer can help you every step of the way to help get closure and process all of the remaining assets in limbo.

If you have any questions about probate administration or need legal representation, do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.

 

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