What to do when a person disappears and you never hear from them again?
When a person disappears and there is no further news of him, the relatives can contact the Court and ask for the declaration of absence and, after a certain period, the declaration of presumed death. In this way they are allowed to assume powers over the assets of the person in question, conserve them, manage them in their own name (therefore even without delegation) and possibly become owners following the opening of the succession.
So let’s see how the declaration of absence and presumed death work. These rules were modified in 2024 following the so-called simplification decree. But let’s proceed in order.
What is the declaration of absence and how does it work?
The first thing to do when you no longer have news of a person and he is no longer present in his last domicile is to contact the Court of that place, so that it can appoint a curator of its assets (art. 48 civil code).
The curator will represent the person in court or in the preparation of inventories and accounts and in liquidations or divisions in which he is interested, and will adopt other measures necessary for the conservation of the assets of the deceased.
After 1 years from the day on which the last news of the missing person dates back to (previously the deadline was 2 years), it is possible to contact the competent Court to officially declare the so-called absence of the subject.
Absence is the situation with which the disappearance of a person is formalized, that is, the fact that there is no further news of a person.
The request can be presented by his legitimate heirs (i.e. those who would inherit according to the rules of the Civil Code, in the absence of a will) and by anyone who reasonably believes they have rights over the deceased’s assets dependent on his death.
What are the effects of the sentence declaring the absence?
Once the sentence declaring the absence has become final, the possible case is opened will. Furthermore, those who would be testamentary or legitimate heirs can request (after drawing up an inventory) the inclusion in the temporary possession of the absentee’s property.
The spouse of the absentee (who obviously cannot remarry) can obtain a maintenance allowance to be paid by the absentee’s estate.
What happens if the absent person returns?
If the absentee returns, his assets are returned to him in the state they are in at the time his return is ascertained.
What is the declaration of presumed death?
If they pass 5 years from the day of the last news of the absentee (who was born at least 27 years ago), the Court can issue a sentence declaring the presumed death of the absentee which takes effect from the day of the last news from him.
The presumed death sentence determines a real one opening of the succession.
The moment of death is made to coincide with the day the subject was last heard from. So it has retroactive effect. However, the opening of the succession takes place only when the sentence declaring presumed death becomes executable.
From that moment onwards the following effects also occur:
- i. are identified successors;
- those called can accept the inheritance or give it up or exercise the conservative powers of the deceased’s estate;
- the limitation period for accepting the inheritance begins to run.
Within one year of the publication of the sentenceit is possible to lodge an objection.
It can be proposed by anyone who is interested.
Abbreviated terms for the declaration of presumed death
For the declaration of presumed death, the passage of two years is sufficient if the disappearance was caused by a «injury» (a landslide, a flood, an air disaster, etc.).
The declaration of presumed death is triggered after two years for those who have disappeared in war operations or after three years for those who have been taken prisoner by the enemy.
What is the difference between declaration of absence and presumed death?
The difference between the declaration of absence and that of presumed death lies in the fact that the sentence declaring theabsence (following the disappearance of someone for more than 1 year) has the effect of “temporarily” placing those who would be heirs in possession of the assets of the deceased. Instead, the declaration of presumed death determines a real transfer of property.
Furthermore, the assets of the absentee cannot be sold except for obvious necessity or utility recognized by the Court, which orders, with regard to use, the use of the sums obtained. Instead, with presumed death, any act of disposition is possible.
The presumed death causes the effects that the testamentary or legitimate heirs can freely dispose of the assets of the presumed deceased person and that the spouse can remarry.
What happens if the presumed dead person returns?
If the presumed dead person returns, he has the right to obtain his assets in the state in which he finds himself and the marriage, celebrated in the meantime by his spouse, is declared null and void.
