Code of Virginia

Code of Virginia
Title 64.2. Wills, Trusts, and Fiduciaries
4/26/2019

Chapter 23. Persons Presumed Dead.

§ 64.2-2300. Presumption of death from absence or disappearance; when applicable.

A. 1. Any person who is a resident of the Commonwealth shall be presumed to be dead if such person:

a. Leaves and does not return to the Commonwealth for seven successive years and is not heard from;

b. Disappears for seven successive years and is not heard from; or

c. Disappears in a foreign country, his body has not been found, and he is not known to be alive, and a report of presumptive death by the Department of State of the United States has been issued.

2. Any person who is not a resident of the Commonwealth, but who owns real or personal property located within the Commonwealth, shall be presumed to be dead if such person disappears for seven successive years from the place of his residence outside of the Commonwealth and is not heard from.

3. The presumption created by this subsection shall be applicable in any action where the person's death is in question, unless proof is offered that the person was alive within the time specified or, in the case of a presumed death in a foreign country, at any time following the person's disappearance, whether before or after the report of presumptive death was issued.

B. The fact that any person was exposed to a specific peril of death may be a sufficient basis for determining at any time after the exposure that the person is presumed to have died less than seven years after the person was last heard from.

C. Any person on board any ship or vessel underway on the high seas who disappears from such ship or vessel, or any person on board an aircraft that disappears at sea, who is not known to be alive and whose body has not been found or identified prior to a hearing of a board of inquiry as to such disappearance, shall be presumed to be dead upon the findings of a board of inquiry that the person is presumed dead, or six months after the date of such disappearance, whichever occurs first.

D. Before any final order or decree is entered in a cause under subsection A, B, or C in favor of the alleged heirs, devisees, next of kin, legatees, beneficiaries, survivors, or other successors in interest of the presumed decedent, or persons claiming by, through, or under them, or any of them, proceedings shall be held in conformity with §§ 64.2-2303 through 64.2-2306.

E. The heirs at law, devisees, next of kin, legatees, beneficiaries, survivors, or other successors in interest of the person presumed dead under subsection A, B, or C may be made parties defendant to proceedings in respect to real or personal property in which the presumed decedent may have an undivided interest by order of publication or other process as provided by law. The proceedings shall not be stayed in respect to the division, sale, or other disposition of the entire property. The provisions of subsection D shall be applicable only to the portion of the property set apart or to the share of the proceeds to which such person would be entitled.

Code 1950, § 64-101; 1954, c. 430; 1968, c. 656, § 64.1-105; 1989, c. 153; 1996, cc. 675, 684; 2003, c. 254; 2006, c. 351; 2012, c. 614.

§ 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.

Code 1950, § 64-102; 1968, c. 656, § 64.1-106; 1996, cc. 675, 684; 2005, c. 681; 2006, c. 351; 2012, c. 614.

§ 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.

2006, c. 351, § 64.1-106.1; 2012, c. 614.

§ 64.2-2303. Persons presumed dead; authority of clerk.

A clerk of the circuit court has no authority to (i) admit to probate a will of a person presumed to be dead, (ii) grant administration upon the estate of a person presumed to be dead, or (iii) appoint a curator pursuant to § 64.2-2302.

Code 1950, § 64-103; 1968, c. 656, § 64.1-107; 1996, cc. 675, 684; 2006, c. 351; 2012, c. 614.

§ 64.2-2304. Petition seeking determination of death; hearing; evidence; notice.

A. Whenever a petition is filed seeking a judicial determination that a person is dead, the court that would have jurisdiction over the person's probate estate if such person were dead shall hear evidence concerning the alleged absence of the presumed decedent and the circumstances and duration of such absence. The court shall require that notice of the filing of the petition be published once a week for four successive weeks in a newspaper published in the county or city where the petition is filed, and the notice shall include the date of the hearing, which shall be at least two weeks after the last publication.

B. At the hearing, the court shall hear all admissible evidence offered for the purpose of determining whether or not the presumption of death is applicable. If the court determines that the legal presumption of death is applicable, the court shall enter an order in accordance with § 64.2-2305, provided, however, that if the evidence shows that the length of a presumed decedent's absence is less than 10 years, the court shall immediately require notice of the order to be published once a week for two successive weeks in a newspaper published in the county or city where the petition is filed and, when practicable, in a newspaper published at or near the place where the presumed decedent had his residence when last heard from. The notice shall require the presumed decedent, if alive, or any person for him, produce to the court satisfactory evidence that the presumed decedent is alive within two weeks from the date of the last publication. If no satisfactory evidence is produced within this period, the court shall enter an order in accordance with § 64.2-2305.

C. For the purposes of subsections A and B, if there is no newspaper published in the county or city in which the publication required may be had, then the court shall order that the required notice be published in a newspaper having general circulation in such county or city. The cost of the publication pursuant to this section shall be paid by the petitioner.

Code 1950, §§ 64-104, 64-106; 1968, c. 656, §§ 64.1-108, 64.1-110; 1996, cc. 352, 675, 684; 2006, c. 351; 2012, c. 614.

§ 64.2-2305. Entry of order that presumption of death is applicable; effect.

A. If, after the hearing conducted pursuant to § 64.2-2304 and any subsequent publication required pursuant to that section, the court determines that the presumption of death is applicable, the court shall enter an order determining that the presumed decedent is in fact dead. Upon entry of such order, the court shall proceed to admit any will to probate, issue letters of administration to the party entitled thereto, or order that the claim of the heirs at law, devisees, next of kin, legatees, beneficiaries, survivors, or other successors in interest of the presumed decedent be established. If the order is subsequently revoked pursuant to § 64.2-2307, all acts done in pursuance of or in reliance on the order shall be as valid as if the presumed decedent were actually dead.

B. The court's order determining a person to be dead shall state the person's date of death to be:

1. The date of the expiration of the seven-year period in a proceeding governed by subsection A of § 64.2-2300, except that in a proceeding governed by subdivision A 1 c of § 64.2-2300 it shall be the date of the Department of State's issuance of a report of presumptive death unless the evidence shows the likelihood of death at an earlier date;

2. The date of the person's exposure to the specific peril of death in a proceeding governed by subsection B of § 64.2-2300; or

3. The date of the person's disappearance in a proceeding governed by subsection C of § 64.2-2300.

C. A certified copy of the court's order determining that the presumed decedent is in fact dead shall be accepted as proof of death in all situations in which a certificate of death issued by the State Registrar of Vital Records of the Virginia Department of Health would have been accepted as such proof.

Code 1950, § 64-107; 1968, c. 656, § 64.1-111; 2006, c. 351; 2012, c. 614.

§ 64.2-2306. Distribution of property; refunding bond.

Before any distribution of the proceeds of the estate of a person determined to be dead pursuant to this chapter or the payment or transfer of any of his other property is made, and before the sale of any real or personal property passing in kind by persons claiming such property as heirs at law, devisees, next of kin, legatees, beneficiaries, survivors, or other successors in interest, the persons entitled to receive such proceeds or property in kind shall give a refunding bond without surety upon condition that if the person determined to be dead is in fact alive at that time, they will respectively refund to such person the proceeds or property, or proceeds of such property, received by each on demand, without interest thereon.

Code 1950, § 64-108; 1962, c. 115; 1968, c. 656, § 64.1-112; 1996, cc. 675, 684; 2006, c. 351; 2012, c. 614.

§ 64.2-2307. Revocation of determination of death; effect on previous acts; title of purchasers.

The court, after reasonable notice to the parties interested, may revoke a determination of death at any time based on satisfactory evidence that the presumed decedent is in fact alive. If a determination of death is revoked, all powers of any personal representative shall terminate; however, if the personal representative has complied with the provisions of § 64.2-2306, all receipts and disbursements of assets and other acts previously done by the personal representative and the title of bona fide purchasers of property under sales made by the personal representative or by any heir at law, devisee, next of kin, legatee, survivor, beneficiary, or other successor in interest shall remain as valid as if no revocation had been made. Any personal representative shall settle his account and all assets remaining in his possession or in the possession of such heir at law, devisee, next of kin, legatee, survivor, beneficiary, or other successor in interest, and the proceeds of such assets, shall be transferred to the person who had been determined to be dead or to his duly authorized agent or attorney. Nothing in this section shall validate the title of any person to any money or property received as an heir at law, devisee, next of kin, legatee, survivor, beneficiary, or other successor in interest of such presumed decedent, and such money or property may be recovered from them as if the order determining death had not been granted.

Code 1950, § 64-109; 1968, c. 656, § 64.1-113; 2006, c. 351; 2012, c. 614.

§ 64.2-2308. Substitution of presumed decedent in pending actions; reopening of judgments; effect of judgments.

A. After revocation of the order determining death, the person who had been determined to be dead may:

1. Be substituted as plaintiff in all actions previously brought by his personal representative, whether prosecuted to judgment or otherwise, on suggestion filed by such person; and

2. Be substituted as defendant in all actions previously brought against his personal representative, on suggestion filed by such person or the plaintiff to the action. If such person is substituted as defendant, he shall not be compelled to go to trial in less than three months from the time that such suggestion is filed.

B. Upon application by the presumed decedent, judgments recovered against the personal representative before revocation of the order determining death may be opened. Such application by the presumed decedent shall be made within three months from the date of the revocation and shall be supported by an affidavit that specifically denies the cause of the action, in whole or in part, or specifically alleges the existence of facts that would constitute a valid defense. However, if no application is made during the three-month period, or, if an application is made but the facts exhibited are adjudged to be insufficient to constitute a defense, the judgment shall be conclusive for all intents. After the substitution of the presumed decedent as defendant to any judgment pursuant to subdivision A 2, the judgment shall become a lien upon his real estate and shall so continue as other judgments.

Code 1950, § 64-110; 1968, c. 656, § 64.1-114; 1971, Ex. Sess., c. 156; 2006, c. 351; 2012, c. 614.

§ 64.2-2309. Costs.

The costs attendant to the issuing of an order determining death or the revocation of such order shall be paid out of the estate of the presumed decedent. If the petition for the issuance or revocation of an order determining death is not granted, the costs shall be paid by the petitioner.

Code 1950, § 64-111; 1968, c. 656, § 64.1-115; 2006, c. 351; 2012, c. 614.

The chapters of the acts of assembly referenced in the historical citation at the end of these sections may not constitute a comprehensive list of such chapters and may exclude chapters whose provisions have expired.

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