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Florida Probate: Dead or Alive? Proof is Required

| Nov 13, 2020 | Probate |

In order to probate the estate of a deceased person, one of the necessary criteria to be proven is that the person is, in fact, deceased. In most instances, establishing this is not a problem if you have an authenticated copy of the death certificate. This is usually the version issued by the governmental agency such as a department of vital statistics. A mere photocopy is not usually sufficient.  Section 731.103 (1), Fla. Stat. provides that an authenticated copy of the death certificate is prima facia evidence of the “fact, place, date, and time of death and the identity of the decedent.” Under that circumstance, presentation of the authenticated copy of the death certificate establishes the death.

However, not every circumstance allows you to have such an authenticated copy of the death certificate. In fact, in some cases, you cannot get any form of death certificate—authenticated or otherwise. In our probate practice, we’ve had situations where a person died overseas and getting an authenticated copy of a death certificate was simply not an option. Similarly, we’ve had situations in Florida where we did not have the necessary information (such as the decedent’s Social Security number or date of birth) in order to get an authenticated copy of the death certificate.

Fortunately, Florida does have an alternative solution. Section 731.103 (2), Fla. Stat. provides that the fact, place, date, and time of death and the identity of the decedent may be established by:

A copy of any record or report of a governmental agency, domestic or foreign, that a person is alive, missing, detained, or, from the facts related, presumed dead is prima facie evidence of the status and of the dates, circumstances, and places disclosed by the record or report.

We encountered an example of this a few years ago when a client died overseas in a third world country. We could not get an authenticated copy of the death certificate—there simply was no such thing. In fact, we couldn’t get any type of death certificate. However, we were able to get a police report that described not only that the person had died, but also when, where, and how she died. This was sufficient to satisfy the probate court. As a result, the probate administration was allowed to proceed.

Another “sticky” situation we’ve encounter is when a person has simply disappeared. Are they dead or not? Can a probate proceed or not? If you cannot prove that the person is deceased, then there can be no probate. Fortunately, once again Florida does have an answer. Section 731.103 (3), Fla. Stat. provides:

A person who is absent from the place of his or her last known domicile for a continuous period of 5 years and whose absence is not satisfactorily explained after diligent search and inquiry is presumed to be dead. The person’s death is presumed to have occurred at the end of the period unless there is evidence establishing that death occurred earlier. Evidence showing that the absent person was exposed to a specific peril of death may be a sufficient basis for the court determining at any time after such exposure that he or she died less than 5 years after the date on which his or her absence commenced. A petition for this determination shall be filed in the county in Florida where the decedent maintained his or her domicile or in any county of this state if the decedent was not a resident of Florida at the time his or her absence commenced.

This statutory section provides a means to probate the estate of a person who has gone missing. This can be important because the person’s absence could mean that valuable property cannot be dealt with unless a probate can be opened. Imagine the dilemma which could arise if a married couple owned a home jointly and the husband goes missing for years. The wife is essentially stuck and cannot sell the home unless the husband’s death can be established. Section 731.103 (3) provides a means to presume death when someone has been missing for at least five years.

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