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Finding the current whereabouts of long-lost beneficiaries or distributes may be one of the more difficult aspects of an estate proceeding. Aside from the jurisdictional requirements, what happens when a beneficiary or distributee has not been heard from for decades?
Pursuant to New York Estate Powers and Trust Law 2-1.7(a), the presumption of death from absence can be made after a person has been absent for a continued period of three years, during which, after diligent search, he or she had not been seen or heard of from, and whose absence is not satisfactorily explained.
The question still remains, however, what constitutes a diligent search?
According to an article via the LexisNexis® Legal Newsroom | Estate & Elder Law Blog, one of the more famous cases involving the presumption of death concerned the disappearance of Hon. Frank Crater, a Supreme Court Justice in 1930. Judge Crater was last seen on August 6, 1930. On that evening, he went to dinner with a friend at a New York City restaurant and left alone in a taxi cab.
The friend testified that Judge Crater told him during that dinner that he intended to leave that evening by train for Maine where he had a summer residence and where his wife was then residing. He was not seen or heard from during the ensuing eight years, despite widespread publicity of the disappearance in newspapers and magazines. The police department distributed thousands of circulars with his photograph and description to police officials throughout the United States, Canada, South America and the West Indies and Europe, as well as to hospitals, steamship companies and other agencies. Additional investigations were also made of dead bodies, all of which were fruitless. After that “diligent” search, Judge Crater was finally presumed dead.
(Perhaps) surprisingly, this issue still arises in today’s technologically-connected world. While not every case will require the same far-reaching efforts shown in Matter of Crater, it is clear that diligent efforts must include recent diligent efforts to find the absentee before they will be presumed dead. Prior to any application, litigants should undertake – once again—to find an absentee heir.