May 30, 2018

Probating an Estate in Texas for a Missing Person

Probate Law Blog

Houston Probate Attorney


The probate process is intended to settle the affairs for those who die. But what happens if someone is thought to have died while a resident of Texas, but there is no direct proof of death?  Put another way, how do you settle the estate for a missing person who was previously a resident of Texas?  Texas law provides the answer.

Texas Estate Law on Missing Persons

Texas law allows an interested party to probate a will or administer a person’s estate in instances where there is no direct proof that a person died. This law applies when someone is thought to have died but there is no direct evidence of the death, as in case of missing person.

Texas law allows proof of death by circumstantial evidence in this case.  The law leaves it up to the court to determine what circumstantial evidence is sufficient.

Texas law also authorizes the court to issue citation to the person by publication and posting and by other methods.  What this means is that the court can direct the interested person to publish notice to the missing person of the court proceeding, such as running an advertisement in an appropriate newspaper.

Texas law also says that the court may order the interested person to conduct a search for the missing person.  This may include notifying law enforcement agencies, etc. or to hire a private investigator.  Search costs can be paid out of the estate property.

How Long Does a Person Have to be Missing?

There is no set time for which a person has to be missing to be presumed dead.  The courts will expect some time to have elapsed, however.

For example, in Murillo v. Reliance Standard Life Ins. Co., No. 1:16-4 (S.D. Tex. 2017), the husband traveled to Mexico in September of 2009 and was never heard from again.  Four years later, on January of 2013, the wife filed an application to declare her husband dead and to probate his estate.  In February of 2014, he court declared the husband dead as of September of 2009.

Needless to say, the interested person should file a police report.  The interested person can also add the name to the Texas Department of Public Safety “Missing and Unidentified Persons Online Bulletin.”

What Happens After the Person is Declared Dead?

After the person is declared to be dead, the court can grant letters testamentary or of administration for the estate.  This gives the appointee all of the powers needed to administer the estate.

Unlike a normal probate administration, the appointee then has to wait three years from the date their letters are granted to distribute the estate property.

What Happens if the Missing Person Returns?

If the missing person returns or it is established by direct evidence that the person was living at any time after the date the court granted the letters, the missing person is entitled to regain control over their estate and what remains of their property.

Importantly, the now found person cannot recoup property that was sold to a bona fide purchaser for value.  Rather, the now found person is only entitled to the proceeds of the sale.

Do you need help with a probate matter in Houston or the surrounding area?  We are Houston probate attorneys.  We help clients navigate the probate process.   Call today for a free confidential consultation, (713) 909-4906

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