Title Problems: What Would You Do?

Presented by Kay M. Creasman, VP & Virginia State Counsel

FACTS: A family needs to deal with the real estate of their parents who were affected by Hurricane Helene in SW Virginia. The mother’s remains were located, but the father has not been located and, by this point, probably never will. How do we deal with selling the real estate they owned?

RESPONSE: Recent hurricanes, plane crashes, California wildfires (or anything else you can imagine) bring into focus that in times of disaster, some people go missing and no physical evidence of their demise can be found. How do you deal with the real estate issues when no will can be probated and no list of heirs can be filed because you can’t obtain a death certificate, due to the lack of a body?

The Code of Virginia addresses these issues. As many of you know (from old movies and novels if nothing else), a person can be declared dead after 7 years. This common law rule dates back to 1666 in England when people went on ocean explorations and never returned. After 7 years with no word or no evidence the person is living someone can be declared legally dead, regardless of the reason for the person being absent. (Va. Code § 64.2-2300) But what about the disaster situation above. What happens when everyone “knows” the individual is deceased, but there’s no physical body for which a death certificate can be issued? Va. Code § 64.2-2301 allows a court to distribute the assets as if the person was deceased as long as an appropriate bond is posted with the court:

§ 64.2-2301. Distribution of fund when presumption of death not applicable.

A. In any civil action wherein any estate or fund is to be distributed, if the interest of any person to the estate or fund depends upon his having been alive at a particular time and it is not known and cannot be shown by the exercise of reasonable diligence whether such person was alive at that time, and if the legal presumption of death does not apply, the court may enter an order distributing the estate or fund to those who would be otherwise entitled thereto if it were shown that such person was dead at such particular time.

B. Before any distribution is made pursuant to subsection A, the court shall require that, until the person is determined to be dead in accordance with § 64.2-2300, the heir at law, devisee, next of kin, legatee, beneficiary, survivor, or other successor in interest shall give a refunding bond with surety in such form as the court directs upon condition to account for the estate or fund to any person who may establish title thereto adverse to that of such heir at law, devisee, next of kin, legatee, beneficiary, survivor, or other successor in interest.

C. No motion shall be made hereunder except after reasonable notice to all parties upon whom service may be had. Nothing in this section shall be construed to affect in any way any requirement of law as to service of process.

The Court also has the option of appointing a curator. (Va. Code § 64.2-2302)

§ 64.2-2302. Appointment of curator when presumption of death not applicable.

A circuit court, upon good cause shown, may appoint in accordance with the provisions of § 64.2-451 a curator for the estate of a resident of the Commonwealth in a case where the legal presumption of death is not applicable if (i) at least one year has expired since the date that the resident was last heard from and (ii) it is not known and cannot with reasonable diligence be shown whether such person is alive. In determining whether good cause exists, the court shall consider the existence and efficacy of any durable power of attorney.

We sincerely hope you never have to deal with this issue, but know that the Virginia Code has a procedure to make sure title to real estate can continue to be transferred.