02 Mar HOW LONG WOULD IT TAKE FOR NANCY GUTHRIE (A MISSING PERSON) TO BE PRESUMED DEAD?
There were more than 500,000 persons reported missing in the United States last year. The high-profile missing person case of Nancy Guthrie (mother of “Today” show anchor Savannah Guthrie) is unusual since most missing persons are younger. It is also different since there is a ransom request on her. The fact that there was a ransom request would seem to give more hope that Nancy Guthrie is still alive – but it could take years before this case is concluded. However, the longer she is missing, the greater likelihood that she has passed. Locally, SMU Law Professor, Charles M. Hosch, has been missing since November when he was last seen hiking.
Presumption of Death if no Evidence of Death:
Under both Texas law and the Social Security Act, any person missing for seven consecutive years is presumed dead when circumstantial evidence does not establish the fact of death as the inevitable conclusion.
Presumption of Death if there is Circumstantial Evidence:
Although it is unlikely a Texas court would declare a missing person dead until several years after the disappearance, there is a procedure under Texas law to determine a missing person to be dead. A determination of death is needed to settle an estate (payment of debts and distributing the assets of the missing person). A court could determine death prior to 7 years if there was enough circumstantial evidence. Even a catastrophic event such as a plane crash is not a presumption of death. Conclusions and legal implications may arise from the findings of an investigation to create enough circumstantial evidence to result in a presumption of death.
In order to pay the debts of an estate or distribute assets of the missing person, there must be a determination of death by a court order. Any interested party (heir, beneficiary, creditor, etc.) may bring a court action.
How is a Missing Person Given Notice of their Death:
Normally all interested parties must be given notice of the court proceeding. Since you can’t serve a citation on someone missing, the court could order
- A citation by publication (such as a notice or ad in a newspaper)
- Notification of law enforcement official (i.e. police, Texas Department of Public Safety)
- Notification of public welfare agencies – “Missing and Unidentified Persons Online Bulletin”, etc.
- Private investigation agency (paid by the estate of the deceased)
When can Missing Person’s Assets be Distributed:
Unlike the normal probate process in Texas, the executor or administrator must wait three (3) years after the court determines the missing person to be dead before there can be a distribution of the missing person’s assets.
What Happens if the Missing Person is Found Alive After Assets were Distributed?
If a missing person was alive and the assets either were not distributed or not fully distributed, then the executor or administrator would return their assets to them. This would include any rents and profits received by the estate. However, only the proceeds or residue of proceeds from the sale of real estate (and not the real estate) would be returned if the missing person’s real estate was sold to a bona fide purchaser a fair market value. The executor or administrator is not liable for distribution of the assets as permitted by the court order.
There hasn’t been so much attention about a missing person case since the kidnapping of the baby of famed aviator, Charles Lindberg. Perhaps this case will result in more attention and quicker action to help missing people and their families.
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