The law can be weird. For example, in Texas, a court can declare that you are dead even if you are very much alive.
All the court needs is an application filed by an “interested person” in your estate. After receiving circumstantial evidence, the court can enter an order determining the fact, time, and place of your death and then appoint a personal representative (an executor or administrator) to manage and eventually distribute your assets.
Never mind that you are still alive.
Does the Court Have to Notify You?
Surely the court must give you some type of notice before declaring you dead, right? Wrong. You certainly won’t receive it by personal service because the whole idea is that you cannot be found. Nor is the court required to give you any other type of notice. The court may, in its discretion, order that a citation be issued to you and served by publication and posting. Will that be effective? Probably not. Chances of you stumbling across a notice in the paper or on a bulletin board in the courthouse are slim.
Does the Court Have to Look for You?
The court can, of course, order that additional efforts be made to find you, but that only happens after the court has decided that you are dead and appointed a personal representative to handle your estate. Then the court may order the personal representative to search for you by notifying law enforcement agencies and public welfare agencies in the location where you disappeared. It may also order the original applicant (that “interested person”) to hire an investigative agency to search for you.
Who pays for all this searching? You do, of course, through your estate.
After you have been missing for an additional 3 years, the personal representative can start distributing your estate. Goodbye, assets.
What If You’re Declared Dead But Are Still Alive?
What if you are alive after the court enters an order that you are dead? You can seek a new order that you weren’t dead after all, provided someone can prove you are alive through direct evidence.
Note that your death can be proved by circumstantial evidence, but your life must be proved by direct evidence. There seems to be a disconnect, doesn’t there?
Never mind. After you are legally resurrected, you are entitled to restoration of your estate, or what remains of it.
See Chapter 454 of the Texas Estates Code if you want the details.
Who Can Apply to Declare You Dead?
Now let’s turn to motive. Who is the “interested person” who can apply to the court to declare you dead?
It is your heir, devisee, creditor or any other having a property right in or claim against your estate. If you are an incapacitated person, then it is anyone interested in your welfare.
If that broad spectrum makes you a bit queasy, you are justified. There are no guardrails to protect against fraud.
What if the interested person cannot come up with enough circumstantial evidence to prove your death? No problem: time, specifically 7 years of time, kills all. Once you have been gone for 7 consecutive years, the law presumes you are dead. This presumption leads to some unhappy truths, such as it will be harder to recover your estate if you are later declared alive.
See Texas Estates Code Chapter 133 for additional light reading.
The lesson to learn is don’t disappear. And keep an eye on the “interested persons” in your life. They have both motive and opportunity to bury you in the law.
Death is hard to come back from. And when you do, you may not like what you find.
Hammerle Finley Can Help With Your Estate Planning Needs
If you’re looking for legal assistance, schedule a consultation with one of our experienced attorneys to discuss your options.
Attorney Virginia Hammerle, of Hammerle Finley Law Firm, is in her fifth decade of law practice. She is Board Certified in Civil Trial Law and an Accredited Estate Planner. Reach her at legaltalktexas@hammerle.com. This column does not constitute legal advice.
