How is the estate of a missing person handled

Published 27 Nov 2018

Author: Richele Nelsen

When a person is missing for a long period, it may be time for friends and family to consider distribution of the estate. While this is never an easy process, it is one that must be dealt with nonetheless, and legal help is a good idea as a first step.

Here is an overview of legislation in place to deal with these matters in New South Wales.

The NSW Trustee and Guardian Act 2009.

Section 54 of the NSW Trustee and Guardian Act 2009 sets forth guidelines for dealing with a missing person's estate. The family or other applicable person may apply to the NSW Supreme Court to have someone appointed as manager of the estate.

But how is someone deemed "missing"?

The Act states that a person is considered missing if they've been gone for at least 90 days, and all reasonable efforts to locate or communicate with the person have been made. The person must have been residing in NSW for the court to make a decision about estate management, and it must be deemed in the best interests of the missing person to move forward.

However, if the missing person is known to be alive, and just does not want to be found, they are not considered a missing person whose estate can be managed in this way.

If the application can proceed, the Supreme Court will then assess financial assets, circumstances, and relationships in relation to estate management.

Considerations may include the missing person's age and physical and mental condition, the circumstances of the disappearance or the person's financial status and debts.

Who can make the application?

Those who can apply for a declaration order in relation to a missing person under the Act include:

  • A spouse or de facto partner.
  • A relative.
  • A business partner or employee.
  • The Attorney General.
  • The NSW Trustee.
  • Any person who has an interest in the estate.

If a person is found alive, a declaration order from the NSW Supreme Court can be terminated.

If your loved one has been missing for some time, it is wise to hire legal help to assist you and your family with the estate management process. Our attorneys at Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers can help you with your application to the Supreme Court, in addition to the steps that follow.

We offer free consultations, so contact us today to learn more about your options.

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