Probate and Missing Heirs

What Happens When You Can’t Find a Beneficiary During Probate?

Probate is the judicial court process in which a deceased person’s will or estate is distributed. In a typical probate, the court will look to find whether or not a valid will existed, order the payment of outstanding debts of the deceased person, and approve the final distribution of assets. For a more in-depth discussion on probate, click here. However, complications can arise during probate when a person named in the will, or a person who is entitled to inherit under statute when no valid will exists, cannot be located. There are a few important steps to take when a beneficiary of the estate cannot be located.

Notice of Probate

Probate begins when a petition for probate is filed with the court. Under California law, all interested parties must receive notice of this petition. Notice is generally mailed to the interested parties with a copy of the will (if a will exists). “Interested parties” include everyone named in the will in any manner, all heirs-at-law (even if they are disinherited in the will), and any person who may inherit under intestate succession (in the event that there is no will). 

When an “interested party” cannot be located, the court requires reasonably diligent efforts by the petitioner to locate everyone entitled to notice. Reasonably diligent efforts include:

• Internet Searches
• Contacting relatives 
• Contacting last known places of employment
• Searching public indices of real and personal property ownership
• Searching public records

However, reasonably diligent efforts do not include the hiring of a private investigator to search for the missing person. In some circumstances, the court will order the personal representative to take this step, but this is not initially required.

Under California Rules of Court Section 7.52, if the missing person is not located after a reasonably diligent search, the personal representative of the estate must file a declaration of diligent search. This declaration must include:

• The name of the person whose address is unknown;
• The last known address of the person;
• The approximate date when the person was last known to reside at that address;
• The efforts made to locate the person; and
• Any facts that explain why the person’s address cannot be obtained.

The declaration should include any of the reasonably diligent efforts the petitioner made to locate the person. After submission of the declaration, the court will decide whether the hearing can continue without notice to the missing person.

Final Distributions of the Estate

If the court decides that the hearing may continue without notice to the missing person, additional steps are required when making final distributions of the estate. If the missing person is entitled to a distribution from the estate, the personal representative will request instruction from the court on what to do with the missing person’s share. The personal representative will provide the court with alternate distributees, and the share each alternate distributee is entitled to in the event the missing person is never located. (Probate Code 11603). 

Multiple options for distribution exist in this scenario, including the following:

• Distributing to the persons who would have inherited from the estate if the missing person predeceased the decedent;
• Appointment of a conservator for the person whose whereabouts are unknown; or
• Distribution to the county treasurer or the Controller for the State of California

Under Probate Code Section 11603(c), if the missing heir does not claim his or her property within five years of the court order for distribution of property, the missing heir is deemed to have predeceased the decedent, and his or her share passes to the alternate distributees. 

When an heir is missing, it is important to make sure the right steps are taken to assure probate proceedings are not stalled and proper distributions are made. In the event that an heir cannot be located during probate, contact an experienced legal professional to help.