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Can Probate Proceed When an Heir is Missing?

There are instances when probate is opened, only for the executor to be unable to locate an heir of the estate. Trust & Will explains what to do if this happens.

Mitch Mitchell

Mitch Mitchell, @MitchMitchell

Product Counsel, Legal, Trust & Will

If you’ve been appointed as the Executor or Administrator of an estate, then one of your first duties in the probate process is to properly notify all beneficiaries and possible heirs of the estate. Once you’ve begun this process, however, you might discover that an heir of the estate cannot be found. What are you supposed to do about this, and can probate proceed if you cannot locate them? Trust & Will explains what to do in the case of a missing heir in probate, including how to search for them, what to do if they cannot be found, and how it impacts the probate process.

Missing heirs & beneficiaries in probate

As the personal representative of an estate, one of your key duties is to notify all interested parties that probate has been filed and keep them updated on the proceedings thereafter. Amongst the parties that should be notified are the beneficiaries and heirs of the estate. 

If you discover that an heir or beneficiary is missing, then you are obligated to locate them so that you can make contact. While you may not locate them, you’re still expected to do your due diligence and make reasonable attempts. 

The probate court will typically counsel you on the type of communication required, such as posting a notification in a local paper. You’re also expected to take reasonable steps to find them, such as contacting other relatives, looking up addresses, or searching through public data to try finding their whereabouts. Be sure to ask for the court’s permission before you spend any estate funds to search for the missing heir or beneficiary.

It’s also helpful to look at your state’s laws, which may define what are considered reasonable steps. The court will ultimately determine whether you’ve satisfied your obligations.

Heir vs. beneficiary

Before we move on, you may be wondering if there is a difference between an heir and a beneficiary. 

A beneficiary is an individual named in the beneficiary’s legal documents (such as a Will or Trust) as someone who should receive a share of their estate. 

In contrast, an heir is an individual who is entitled to inherit a part of the decedent’s estate by law. The most common example is the decedent’s children. If an individual passes away without a Will, then they have died intestate and the probate court uses state intestate succession and next-of-kin rules to determine how the estate should be distributed. 

There can be and often will be overlap between a decedent’s named beneficiaries and legal heirs. For example, a child of the decedent who was named in the Will is both a beneficiary and an heir. The distinction between heirs and beneficiaries is explained in further detail in our guide here

What to do if you cannot locate an heir

Now let’s say you have done your due diligence and made your best efforts to locate and contact an heir. Unfortunately, you’ve had no luck.

If this is the case, the probate court will provide guidance on possible actions based on state laws. For example, you may be advised to:

  • Transfer the amount allocated to the heir to the County Controller.

  • If the heir has been missing for several years, you may request the probate court to declare that they are dead for probate purposes. Their share of the estate is probated and distributed to their own heirs or beneficiaries.

What if an heir is unwilling to cooperate?

There are also instances when the heir isn’t missing, but they are unwilling to cooperate.

Heirs have the legal right to deny their inheritances, and this is called a “disclaimer of inheritance.” To formally refuse their inheritance, they must submit a valid legal document renouncing their inheritance. 

However, there may be instances in which you cannot gain their cooperation in any way, shape or form. In unique or extreme circumstance such as these, it is recommended to consult a probate attorney. 

What to do if an inheritance goes unclaimed or disclaimed

Now, let’s discuss what to do next if an heir is missing or an heir disclaims their inheritance.

In both cases, the probate court will refer to its state’s intestate succession laws. These laws are established such that a decedent’s property is distributed to their next-of-kin as fairly as possible. These rules are also used if a decedent died intestate, meaning that they passed away without a Will that would have stated how they wished to have their estate distributed. 

Next-of-kin rules vary by state, but most typically, the order is as follows:

  1. Surviving spouse

  2. Children

  3. Grandchildren

  4. Parents

  5. Siblings

  6. Other relatives of the decedent

In other words, if an heir goes missing, they are treated as though they are predeceased and their share of the inheritance is passed on to their next-of-kin.

There are also cases when an heir cannot be identified at all. This is rare, but when it happens, their inheritance is forfeited to the state or “escheated.” The rules surrounding an escheat vary from state to state. For instance, one state might not allow an escheat until they have reached the very end of the succession line. Other states might select this option earlier to prevent someone from inheriting property if they didn’t actually have any relationship with the decedent.

Can probate proceed when an heir is missing?

Yes, the good news here is that probate can carry on even when an heir is missing. The court will determine that the Executor has acted in good faith to find and contact the missing beneficiary or heir. Once they’ve done so, then probate can proceed without them. 

The Executor will typically need to file a sworn statement that includes a description of their attempts to contact the missing heir. It may also be required for them to file a petition with the court to continue the proceedings, as well as ultimately close the probate case, without said heir.

It’s also a good idea to review the Will if it is available. In some cases, the Will might specify how a distribution should be handled if a beneficiary is missing. If not, then state laws will be applied. Described in the section above, the court will typically treat the missing heir as though they are predeceased and proceed with the probate case using next-of-kin rules.

How to search for a missing heir

If you suspect that an heir is missing, you are still required to act in good faith and make reasonable attempts to make contact with them. Here, you should be careful to document the dates on which you attempted to contact the heir, the methods you used, and any activities conducted to attempt to find and locate the heir. This is because the probate court will likely require you to submit proof that you made every reasonable effort to find and contact the heir, and that you exercised due diligence. 

Here are some examples of what you can do to search for a missing heir:

  • Talk to the friends and family of the decedent.

  • Talk to the friends and family of the missing heir.

  • Publish an advertisement about the probate case in a local newspaper for a period of time.

  • Send letters to the missing heir’s last known addresses.

  • Conduct an online search.

  • Search through the missing heir’s social media profiles.

  • Contact their last known place of employment.

  • Visit the heir’s local county records office to research any available public records, such as property records

  • Hire a private investigator.

Overcome probate obstacles with Trust & Will 

As though the process of probate wasn’t overwhelming enough, there can be times when an unexpected wrench can be thrown into the process. While the probate law is complex, the complexity in itself is impressive because it addresses a wide number of scenarios that can take place, including missing heirs. While it can be easy to feel frustrated with this very complexity, it is helpful to keep in mind that the law provides solutions such that a decedent’s property can be fairly distributed. 

At the same time, no one says that you have to power through the probate process alone. While you can, the process will be so much less overwhelming and confusing, especially if something unexpected happens (like you discover a missing heir). At Trust & Will, we understand that navigating the probate process can be overwhelming– but we're here to help.  Our plans provide clear, county-specific guidance and support from probate experts so you can stay on top of the process. Learn more about our probate offerings.

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Trust & Will is an online service providing legal forms and information. We are not a law firm and we do not provide legal advice.