The Hunt for Missing Heirs in a Florida Probate

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July 8, 2023

The probate process in Florida, like in other states, can be complex and challenging, especially when beneficiaries or heirs are missing or cannot be found. This often adds another layer of difficulty to the already intricate procedure. Here's a guide to help you understand how to navigate such a situation under Florida probate law.

When a decedent's will names a beneficiary, or when a decedent dies intestate (without a will) leaving heirs, it is the personal representative's responsibility to locate these individuals. However, there are times when these beneficiaries or heirs cannot be found, leaving the estate's assets in limbo.

The first step to take when a beneficiary or heir cannot be located is to conduct a diligent search. The personal representative is expected to make reasonable efforts to find the missing parties. This may involve hiring a private investigator or utilizing online search tools and databases. Public records, social media, and last-known addresses are often good starting points.

If after a diligent search, a beneficiary or heir cannot be found, Florida law provides several avenues to move forward with the probate process. These procedures are designed to protect the missing person's interests while allowing the estate to be settled.

If the search proves fruitless, the personal representative must inform the probate court that the beneficiary or heir cannot be found. The court will then provide instructions on the next steps, which may involve providing notice to the missing party through publication.

Under Florida Probate Rule 5.040(a), formal notice must be given to all interested persons, which would include missing beneficiaries. Formal notice must include the nature of the proceeding, the court in which it is filed, the file number, and the names of the parties. It must also notify the person being served that they are required to serve a written response within 20 days of the notice.

If a person cannot be found after a diligent search, pursuant to 49.031 a Sworn statement as a condition precedent must be signed, a statement shall be filed in the action executed by the personal representative, the personal representative agent or attorney, setting forth substantially the matters hereafter required, which statement may be contained in a verified pleading, or in an affidavit or other sworn statement.

Further to this rule, and pursuant to Florida Statutes 49, the personal representative is required to publish a notice of action in a newspaper in the County where the missing beneficiary or heir was last known to reside. This notice serves to alert any interested parties about the probate proceedings and gives the missing beneficiary or heir a chance to claim their inheritance. Pursuant to Florida Statutes 49, the notice of action must be published once a week for four consecutive weeks in a newspaper of general circulation in the County where the action is pending. The notice must describe the action, the court in which it is pending, and the names of the parties.

After the publication of the notice of action, a period is given for the beneficiary or heir to respond. This period typically lasts 20 to 30 days. If the beneficiary or heir does not respond within this time frame, the court will consider them to be "constructively noticed “and the probate court may proceed with the probate administration.

If all attempts to locate the beneficiary or heir fail, the assets designated for them do not automatically get distributed among the other beneficiaries or heirs. Instead, Florida law has specific provisions for handling such situations.

Florida Statute 733.816 comes into play when a beneficiary cannot be located. According to this statute, if a distributee's whereabouts are unknown, the personal representative must pay the distributee's share to the State of Florida's Department of Financial Services, Bureau of Unclaimed Property. The funds are held until the beneficiary or their descendants claim them.

Before transferring the funds, the personal representative must provide the department with any known information about the beneficiary, including their last known address and social security number. This is to help facilitate the payment of the funds if the beneficiary or their descendants come forward in the future.

The Bureau of Unclaimed Property holds these funds indefinitely. They also maintain a database where individuals can search for unclaimed property in their name. This gives the missing beneficiary a chance to claim their inheritance even many years after the probate proceedings have ended.

Transferring the funds to the state doesn't mean the personal representative's duties are finished. If the missing beneficiary or heir is located or comes forward, the personal representative may be required to assist them in reclaiming the funds from the state.

When dealing with a missing beneficiary or heir, it is always advisable to seek legal counsel. An experienced Florida probate attorney can provide guidance and help ensure all legal obligations are met.

Dealing with a missing beneficiary can certainly complicate the probate process. It requires additional time and effort on the part of the personal representative, who must diligently search for the missing person, properly provide notice, and then comply with the statutory requirements for handling the missing beneficiary's inheritance.

While dealing with missing beneficiaries or heirs can be challenging, by adhering to Florida's probate laws and making a diligent effort to locate the missing parties, personal representatives can fulfill their responsibilities and help ensure a fair distribution of the decedent's assets.

In conclusion, the issues surrounding missing beneficiaries or heirs in Florida probate can add complexity to an already intricate process. However, with patience, diligence, and adherence to the laws and rules of the State of Florida, personal representatives can successfully navigate these challenges and properly manage the decedent's estate.

If you have questions about Probate issues, don’t wait—make sure your legal rights are protected. Call 863.250.2990 today to schedule your Free Consultation with our Probate attorneys.