The question may arise if a member of your family or friend goes missing is, “What happens to the estate and assets of a missing person?” A missing person might own bank accounts, IRA’s, retirement plans or other investment accounts, which require a death certificate. A missing person might own real property or other assets requiring probate proceedings. In the case of a missing person, there are normally no remains located and a death certificate has not been issued by the County Coroner. The solution is file a petition for the determination of death and for orders for issuance of a “presumptive death certificate”, C.R.S. § 25-2-110(7) in the probate court, either alone or in conjunction with probate proceedings. However, dependent on the facts and circumstances, you might have to wait five years after the person went missing. In the mean-time a conservatorship might be necessary and appropriate to protect those assets.
PRESUMPTION OF DEATH: Evidence of death and the presumption of death is resolved in accordance with C.R.S. §15-10-107 Evidence of Death.
Subsection (e) thereof provides as follows;
“(e) An individual whose death is not established under paragraphs (a) to (d) of this subsection (1) or under section 15-10-106.5 who is absent for a continuous period of five 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.”
Accordingly, after five years the evidentiary presumption of death comes into play, but that is a rule of evidence not a conclusion of law. An evidentiary hearing is required to establish 1.) An unexplained absence; 2.) The decedent has not been heard from; and 3.) That diligent search or inquiry has occurred.
STANDARD OF PROOF: According to C.R.S. §15-10-107(d), the standard of proof is on the Petitioner and requires that death be established by clear and convincing evidence, to wit;
“(d) In the absence of prima facie evidence of death under paragraph (b) or (c) of this subsection (1), the fact of death shall be established by clear and convincing evidence, including circumstantial evidence.”
TIME OF DEATH: In the case of a missing person, whose absence is unexplained, the question arises as to when the decedent died.
C.R.S. §107(f) answers that question as follows;
(e)* * * His or her death is presumed to have occurred at the end of the period unless there is sufficient evidence, including, without limitation, a determination under section 15-10-106.5 that death occurred earlier”
Although it is conceivable that you could have sufficient evidence of death before five years has elapsed, unless you also had sufficient evidence of date of death, it is unlikely that you could establish death before the five years had elapsed. In other words, in the event you could not prove date of death, how could you establish it prior to the decedent’s date of death which is presumed to be five years after the person went missing. This statute could severely constrict the number of cases which might otherwise be established by evidence prior to the five years.
DEATH CERTIFICATE: C.R.S. §25-2-110 Death Certificates subsection (7) provides as follows;
“(7) When a death is presumed to have occurred within Colorado but the body cannot be located, a death certificate may be prepared by the state registrar upon receipt of an order of a court of competent jurisdiction which shall include the finding of facts required to complete the death certificate. Such a death certificate shall be marked “presumptive” and shall show on its face the date of registration and shall identify the court and the date of decree.”
The application of that statute reflects that it is necessary to obtain 1) A Court Order from a court of competent jurisdiction to get the “presumed death certificate”, and 2) That the court order must reflect the findings of facts necessary to complete a presumptive death certificate, and 3) Court Order must reflect date of its entry and registration and 4) identify the court.
JURISDICTION: C.R.S. §15-10-301(1)(a) defines the territorial application of the Probate Court as follows:
(1) Except as otherwise provided in this code, this code applies to:
(a) The affairs and estates of decedents, missing persons, and persons to be protected, domiciled in this state; (emphasis supplied)
NOTICE: With a missing person, you obviously cannot find and serve him, but this matter is a probate proceeding. In probate proceedings jurisdiction over interested persons is obtained by notice in accordance with C.R.S. §15-12-106 which provides as follows;
In proceedings where notice is required by this code or by rule, interested persons may be bound by the orders of the court in respect to property in or subject to the laws of this state by notice in conformity with C.R.S. §15-10-401. An order is binding as to all who are given notice of the proceeding though less than all interested persons are notified.
Notice to interested persons under the probate statute is contemplated by publication and mailing to interested persons.
HEARING: Each matter would be dependent on their particular facts, but a number of factual issues which need to be established, are
a) The duration the missing person has not been heard from,
b) that the missing person has not been in contact with family, friends and employer,
c) that diligent search efforts were made to locate the missing person,
d) that no body has been found,
e) the absence of a satisfactory explanation for the missing persons absence,
f) the date the person went missing, and
g) the facts necessary to complete the death certificate.
A number of factual issues might be helpful to establish, namely
a) The circumstances leading to the person going missing,
b) that the missing person was not avoiding the tax man, creditors, criminal authorities or their x spouse,
c) that the missing person was, happy, well adjusted and looking forward to living life, and
d) that previously the missing person had regular contact with family and friends and the termination of that regular contact was inexplicable and inconsistent with the missing persons usual behavior.
THE FINISH LINE: DEALING WITH COLORADO CENTER FOR HEALTH & ENVIRONMENTAL DATA: The Department of Health, Vital Records Section has a special form, “Application to Register Delayed Death Certificate,” which needs to be filled out and submitted, together with
a) certified copy of court order,
b) valid identification of requestor, i.e. copy of driver’s license,
c) decedents information, and
d) required fees for copy of death certificate.
The form indicates it may take up to thirty days and is subject to approval by the Colorado State Registrar.
To able to navigate this rather arduous and complex task requires having the legal assistance of an experienced attorney in estate and probate matters, but the problem is soluble.
Vance E. Halvorson, © 2020