Searching for Frank: What Is A Diligent Search For Heirs?

By Jennifer F. Hillman, Esq. |

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?  As stated in Butler v. Mutual Life Ins. Co., 225 N.Y. 197, 121 N.E. 758 (1919) [enhanced opinion available to lexis.com subscribers], the burden of establishing the facts which may give rise to the presumption of death is upon the person invoking it. That person must produce evidence to justify the inference that the death of the absentee is the probable reason why nothing is known about him or her.  There should be no “reasonable probability” that the absentee is currently alive. Id.  This is normally an issue of fact, but can be a question of law under an appropriate fact pattern.  

One of the more famous cases involving the presumption of death concerned the disappearance of Hon. Frank Crater, a Supreme Court Justice in 1930.  Matter of Crater, 171 Misc. 732, 13 N.Y.S.2d 597 (Sur. Ct. New York County 1939) [enhanced opinion].  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.  In Matter of Seals, 42 Misc. 3d 1235(A), 2014 N.Y. Misc. LEXIS 997, 2014 NY Slip Op 50335(U) (Sur. Ct. Erie County 2014) [enhanced opinion], the decedent’s nieces filed a petition seeking to declare that the decedent’s son Frank had died on or about April 1, 1983.  As detailed in the decision, Frank moved to Houston, Texas in March 1980.  He wrote a letter to his mother dated March 22, 1980 which was believed to be his last communication with any friends or family.  Around that time, the decedent travelled to Houston, Texas in an attempt to locate Frank, but she was unable to do so.  All of this and other evidence offered by the nieces to prove Frank’s death was inadmissible hearsay.

Besides the lack of admissible evidence, the court also noted that the decedent’s will, executed 13 years later in 1993, still left her residuary estate to her sons –including Frank – a fact which indicated she had no indication at that time that he was dead.  Further, the Court could not conclude that a diligent search had been undertaken because there was no evidence of any recent efforts to locate Frank in Texas.           

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.  

***************

Jennifer F. Hillman is partner at the law firm of Ruskin Moscou Faltischek, P.C. in Uniondale, New York, where her practice is focused on trusts and estates litigation.  She can be reached at jhillman@rmfpc.com

For more information about LexisNexis products and solutions, connect with us through our corporate site