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Home > Blog > Estate Planning > Missing Persons, Presumed Death And Probating Estates

Missing Persons, Presumed Death And Probating Estates


The death of a loved one is excruciatingly painful. It is made all the more painful when someone just disappears. Although it sounds like something out of a movie, people often die, and their remnants or bodies cannot be found. That can leave family in a precarious situation when it comes to probating an estate (aside from the emotional toll).

Often, someone is declared a missing person. Sometimes, it is obvious that the missing person has, more than likely, passed on. Other times, you may not have any idea what happened to him or her. In many cases, the bodies of the deceased are never recovered.

Fictitious Death

In order to probate a will, or carry on the functions of the (presumed) deceased’s estate, the person must be declared fictitiously dead under Florida law. To be declared fictitiously dead, the following must apply:

  1. The deceased must be absent from their normal home or residence, continuously, for five years, and
  2. The person’s absence cannot be explained, even after a diligent search is made

If both of the above criteria are met, the person may be presumed fictitiously dead. The death will be presumed to have occurred at the end of the five year period for the purpose of calculating time periods.

How thorough does the diligent search have to be? There is no hard and fast rule, and it will depend on the situation. You don’t necessarily have to travel the world looking for someone. There must be some kind of search in every case, however.

Presuming Death After Catastrophe

In limited cases, the person can be assumed legally to be fictitiously dead before the expiration of the five year period.

These are for cases when someone was exposed to conditions that would probably endanger someone’s life, such as if someone were inside a collapsed building and never found, or in a boat that sank at sea. Someone elderly and sick who wandered off, who was unable to take care of himself, and who was never found, may also fit into this category.

In these circumstances, the death will be presumed to have occurred when the event that likely caused the death occurred, and the presumption of fictitious death can happen immediately after the event.

Filing the Action in Probate Court

A court action in probate court must be filed to have someone presumed fictitiously deceased. The action must be filed where the person first lived, or in any county in Florida, if the deceased isn’t or wasn’t a resident of Florida.

There cannot be two reasonable outcomes—in other words, there cannot be a reasonable explanation for why the person disappeared, other than death.

If the court does find the person deceased, a death certificate will be issued, and the court will proceed into any probate proceedings. A personal representative cannot be appointed until the person is presumed to be deceased.

The Gilbert Garcia Group, P.A.can help you with your probate or estate legal matters. Contact our Tampa estate planning lawyers today for help.




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