The presumption of death

Every probate proceeding starts with the same document, and it is not the will. It is the death certificate. Under Fla. Stat. §731.103(1) an authenticated copy of a death certificate is prima facie proof of the fact, place, date and time of death and of the identity of the decedent. Hand it to the clerk and the machinery starts. Without it nothing moves: no personal representative, no letters of administration, no authority to touch a bank account, sell a house, or pay a mortgage.

Which leaves a specific and awful category of family. The plane did not arrive. The boat did not come back. Someone walked out of a house in 1998 and has not been seen since. There is no body, no certificate and no explanation — and meanwhile the mortgage is still due, the business still has employees, and the missing person's name is still on the deed.

Florida's answer is §731.103(3). A person absent from the place of his or her last known domicile for a continuous period of 5 years, whose absence is not satisfactorily explained after diligent search and inquiry, is presumed to be dead. Death is presumed to have occurred at the end of that period unless there is evidence establishing that it occurred earlier.

Exposure to a specific peril collapses the five years

The five-year rule is the default for the ordinary disappearance, where the last verified fact is that someone stopped answering the phone. It is not the rule for the plane that went into the ocean.

The same subsection provides that evidence showing the absent person was exposed to a specific peril of death may be a sufficient basis for the court to determine, at any time after that exposure, that he or she died less than 5 years after the absence began. There is no floor. A court can make that determination in months, or in weeks, if the evidence supports it.

“Specific peril” is doing precise work there. It does not mean the person lived a dangerous life. It means a particular, identifiable event the person is shown to have been inside of: the aircraft that departed with them aboard and never landed, the vessel that broke up in a named storm, the building that collapsed while they were at work in it.

Fla. Stat. §731.103(4) then makes the obvious point explicit: nothing in the section prevents establishing death by direct or circumstantial evidence before the five years run. The presumption is a fallback for when you have nothing. Where you have wreckage, a flight manifest, a Coast Guard search log and a National Transportation Safety Board report, you are not relying on a presumption at all. You are proving a death the ordinary way, without a body.

• Five years, unexplained. The default. Requires a diligent search that came back empty.
• Specific peril. A named event the person was demonstrably exposed to. The court may find death at any time after it.
• Direct or circumstantial proof. §731.103(4) — where the evidence is strong enough, no presumption is needed and no waiting period applies.

How a Florida court actually opens the estate

The sequence matters, because it is not the sequence people expect. You do not get a personal representative first.

Fla. Stat. §733.209 is one sentence long and it controls the whole thing: any interested person may petition to administer the estate of a missing person, but no personal representative shall be appointed until the court determines the missing person is dead. The determination of death is a threshold the petition must clear before anyone gets authority over anything.

Venue is set inside §731.103(3) itself. The petition goes to the circuit court in the Florida county where the missing person maintained his or her domicile — or, if the person was not a Florida resident when the absence began, in any county of the state.

The evidentiary showing is the part that takes work. “Diligent search and inquiry” is not a defined checklist, and courts assess it against the circumstances of the particular disappearance. In practice a petitioner assembles what a reasonable person would have assembled: the law-enforcement missing-person report and its case number, searches of Social Security and tax records, credit and banking activity, employment records, driver-licence and voter records, contact with the people most likely to have heard from the absent person, and — where relevant — the official record of the peril.

§731.103(2) helps here more than most petitioners realise: a copy of a record or report of any governmental agency, domestic or foreign, that a person is alive, missing, detained or presumed dead is prima facie evidence of the status, dates, circumstances and places it discloses. A military missing-in-action determination, a Coast Guard report, an NTSB finding, a foreign authority's certificate — all of it comes in on the face of the document.

Interested persons are served and heard. If the court is satisfied, it enters an order determining death. Then the paperwork catches up: Fla. Stat. §382.012, titled “Presumptive death certificate,” authorises the Department of Health to file a death certificate on the order of a court that has determined a death occurred or is presumed to have occurred where the body has not been located or recovered, with the judge signing the medical certification. From that point the estate is an ordinary estate. Letters issue, notice to creditors publishes, and the deadlines in §733.702 and §733.710 run from the ordinary dates.

What happens if they come back

It happens. Rarely, and usually in one of three flavours: a medical or amnesia case, a person who left deliberately, or a mistaken identification. The law has thought about it for longer than you would guess.

Start with what a presumption is. §731.103(3) creates a rebuttable presumption, not a fact. Proof that the person is alive defeats it, whenever that proof arrives. The person's legal existence was never actually extinguished; a court acted on the best available inference, and the inference was wrong.

The procedural route is §733.109, revocation of probate. A proceeding to revoke goes to the court with jurisdiction over the administration, and while it is pending the personal representative continues to administer but the court may restrain distributions — including on its own motion. Revocation does not by itself undo everything the personal representative lawfully did beforehand, which is the whole problem, because by then the house may be sold and the money distributed.

That is where it gets genuinely hard, and where Florida's answer is less tidy than the question deserves. The Probate Code has no single provision that runs the clock backwards. Recovery of distributed property falls back on ordinary principles — restitution against the people who received it, subject to whatever protection a good-faith purchaser for value has. A buyer who bought the house from a duly appointed personal representative under an order that was valid when made stands in a very different position from a beneficiary still holding the cash.

The oldest statute on the subject is more direct than the modern ones. The English Cestui que Vie Act 1666 — passed in the years of the plague and the Fire, when a great many people simply stopped being heard from — provided that a person absent seven years with no evident proof of life should be accounted as naturally dead, and then provided in the same Act that if that person afterwards returned or was proved living, they might re-enter their estate and recover the profits taken in the interim, with lawful interest. Three and a half centuries later that is still roughly the shape of the remedy: your property back where it can be traced, and money from the people who took the benefit.

Seven years, then five

The number was seven for a very long time. The Cestui que Vie Act fixed seven years' absence for the specific problem of life estates in 1666, and English courts generalised it over the following century and a half into a rule of evidence — the presumption arising where a person had been absent seven years and had not been heard from by those who would ordinarily have heard from them.

Seven survived the crossing and is still the period in a good many American states. Others shortened it. Florida's is five, and it sits in the Probate Code that took effect on January 1, 1976. England and Wales eventually went the other way and replaced the common-law presumption with a statute — the Presumption of Death Act 2013, which lets an applicant go to the High Court for a single declaration good for all purposes, and which is why Lord Lucan's family finally obtained a death certificate in 2016, forty-two years after he vanished.

The direction of travel in all of these systems is the same: away from a fixed waiting period as the only route, and toward letting a court find the fact of death on the evidence in front of it. The waiting period is what you fall back on when the evidence is silence.