Attempt to get brother’s part of estate released to other siblings.

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Attempt to get brother’s part of estate released to other siblings.

My father died.  My sister made attorney executor of estate.  Three out of 4 siblings have received their part of the estate.  My brother has been missing since 1997 and has not claimed his portion. The attorney wants to help release other portion to the other siblings.  He told us to file him as deceased, then had probate judge from that county tell me that they don’t disburse remainder of the money to other siblings even though from our understanding GA law says it can happen after 7 years unclaimed. We don’t know what to do.  Please advise.

Asked on June 25, 2009 under Estate Planning, South Carolina

Answers:

L.M., Member, California Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

 

Today, an absent person is presumed to have died if:

  1. he has been missing from his home or usual residence for a period of seven years;
  2. such absence has been continuous and without explanation;
  3. persons most likely to hear from him have heard nothing; and
  4. he cannot be located by diligent search and inquiry.

According to Sentell, almost all the states recognize the presumption, either by statute or judicial recognition of the common law rule. Some states have amended their statutes to lower the seven-year period to five consecutive years, and a few have reduced the period even more--Minnesota and Georgia cut theirs to four.

Here's how it works. If you disappear, those interested can file a petition to have you declared dead. They'll have to prove the things I just mentioned. If they do, your estate will be distributed as if you were deceased. 

Now, as far as your brother's portion of your father's estate, once he has been declared deceased, I assume that your father did not have a will and the court is distributing the assets by intestate succession.  (If I'm wrong and there is a will, it should be easier, because the will would say where the assets go if a beneficiary does not survive the deceased.)  Without a will, it is up to the court and will be determined by the intestate laws of the state.  Often if a child is deceased, the law provides for his portion to go to that child's child or children.  If there are none, then to a surviving parent (your father's parent).  If there is no surviving parent, then to siblings of the decedant, (your father's siblings), and if none, then to their children or grandchildren, etc.  Your brother's share under intestate succession would not go to you and your siblings, I'm afraid.


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