Can You Probate Without An Actual Body?
It is admittedly, a tough thing to think about and to happen, but it occurs often. Oftentimes, people die, we don’t know exactly when their passing occurred, and we may not have a body. In fact, in some situations, although we have a very strong hunch, there may not be hard, tangible proof that the person is dead.
So what happens in that situation when it comes to probating an estate? How do you probate an estate when someone is presumed dead, but you don’t actually have a body, or hard-core proof of death?
There are really three kinds of situations when this kind of problem arises.
The first is when there is no body, but we are reasonably certain that the person is dead. For example, if a plane were to crash over the ocean, the bodies may never be recovered—but it is quite clear that those onboard have passed away.
Then, there are situations where we think someone may have died. For example, at a crime scene, DNA evidence may match the person who is missing, and that person is never found—it is likely he or she died during the crime.
Finally, there are those situations where, inexplicably, people just disappear, never to be heard from again. We suspect they are gone, but there is no accident, forensic evidence, or specific event to confirm that they are.
Probating With No Body
It is most difficult to probate an estate with no body in the last situation, but it can be done. Doing so requires you show that the person presumed deceased has not been seen or heard from in the last 5 years. You must also demonstrate to the court that you have made a diligent search for the person, and that there is no logical reason, outside of death, for the person’s disappearance.
You cannot have, for example, suspicion that someone may be living somewhere else or that they probably fled for some other reason.
Shortened Time Periods
5 years is a long time to wait to probate an estate, so there are situations where that time period can be shortened. If you can show that someone more than likely passed away in a specific event, you can probate the estate immediately, despite the fact there is no hard evidence of a body or of the person’s death.
For example, if someone were in a building when it collapsed, and the body was never found, you could have the estate immediately probated, with the date of death being considered to be the date of the catastrophe or death-triggering event.
When there is no body, it does add extra time and procedures to the probate process, because before anything can be probated, the court must determine there was a death, and whether the 5-year waiting period should apply.