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Missing Persons

By Wills & Estates Team (posts)

What Happens to Their Assets?

Fortunately, few of us have had to deal with the tragedy of a loved-one going missing. Those that have, however, face the difficult question of how to manage the missing person’s estate in their absence.

When a person dies, his or her estate is passed to a personal representative. The personal representative then has the power and the duty to distribute the deceased’s assets in accordance with a Will or the laws of intestacy.

When a person disappears, however, the missing person’s estate is left in limbo until the person is located or is declared deceased by order of the Court.

Fortunately, there is a mechanism by which the estate can be preserved during this period of uncertainty. The BC Estates of Missing Persons Act enables the Court to issue an order declaring a person missing.

Once a person is declared missing, the Court may appoint a curator to manage the missing person’s estate. The Public Guardian and Trustee will be appointed as curator, unless the Court is convinced that there is a more fit and proper person. The curator may then act as a trustee of the estate, and has the same powers to deal with the assets as the missing person would have had.

Ultimately, if the missing person is not located, an interested party can apply to the Court to have the missing person declared deceased under the Presumption of Death Act. At that point, the estate is passed to the personal representative for distribution in accordance with a Will or laws of intestacy.

If the person is declared to be deceased and has neither a Will nor any living relatives who would be entitled to share the estate on an intestacy, then the estate will escheat to the Crown. That is, in the absence of an heir, the deceased’s property will pass to the state.

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