4

Suppose a person disappears and is thought to have died (e.g. massive fireball plane crash, 'nobody could have survived that') and so their estate was administered.

And then, after their property has gone to some beneficiaries and maybe on-sold or distributed to the beneficiaries of the estates of beneficiaries who have died, etc, the person turns up alive, e.g. parachuted at the last minute while everyone was distracted by something else.

What happens to the property that was dealt with through the person's estate? Is it all clawed back?

The jurisdiction is Victoria, Australia.

|improve this question
  • For starters the "nobody could have survived that" does not grant a death certificate. Remains are searched for, identified, etc. If that is not possible, as much evidence as possible should be collected to reconstruct what happened (did that person effectively board the plane, etc.). All of this would take time, and until it ends you can administer his state. So I guess that the first to happen would be to question the "dead" what as he been doing all those months... – SJuan76 Feb 27 '17 at 18:20
  • It does happen now and then. There was a case in Ohio a while back. Interesting question that is worth researching. My guts says that bona fide purchasers for value (e.g. creditors or people to whom the estate was sold) are protected and that there is no right to refund if the inheritance has been spent. Terminations of marriages that result in subsequent remarriage also probably remain void. – ohwilleke Feb 28 '17 at 18:08
  • Under Nevada law, for instance, the administrator of the estate may be personally liable in negligence for the value of mistakes made in any distribution. That's one reason they may be required to post an estate/executor/probate/fiduciary bond for the entire value of any distribution. They may go to great lengths to "get it right". In a situation of questionable death, it might be routine for a court to demand such bond. However, in the case of missing persons, the presumption of death may become final at 6 years, the bond released, and distributions considered final. Your laws may vary. – Upnorth Sep 8 '17 at 19:29
  • I would imagine that they need to ask a court to restore their property to the extent it can be. If the beneficiaries acted in good faith, genuinely thinking that the person was dead, I can't imagine a court would penalise them with debt, only ask them to return what remains in their possession of the state. It's similar to when someone is overpaid or otherwise accidentally given money and they spend it in good faith. But I'm just guessing based on how it works in other countries with similar legal systems. – user Sep 11 '17 at 15:31
  • Somebody who has been declared legally dead may not be able to overturn the finding merely on the grounds of walking and breathing; see this. – Tim Lymington supports Monica Mar 18 at 21:36
2

This is a pretty detailed summary of the legal issues around missing persons. The relevant info is on p.8:

Where a grant of representation is made on the presumption of death, the personal representative must get permission from the Court before they can distribute the missing person’s estate. The Court may place conditions on the grant. For example, it may set a limit on how much of the property can be distributed, or it may make the personal representative agree to give back any money or property they receive from the estate if the Court later revokes (cancels) the grant. If a grant is made on the presumption of death and the missing person is later found to be living, the grant may be revoked by the Court. If this happens, people who have received property from the estate will not have to give it back, provided the personal representative has acted ‘in good faith’ (that is, they have acted according to the law and distributed the estate in the honest belief that the missing person has died). These provisions exist to protect the interests of the missing person.

|improve this answer

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.