Absent Heirs

Abstract

The whereabouts of a decedent’s heirs are sometimes unknown, and consequently some inheritances go unclaimed. Generally, most states regulate unclaimed inheritances by naming a custodian to safekeep the inheritance, and if the absent heir fails to claim it within a prescribed time, then the inheritance escheats to the state. The specifics of the law, however, vary considerably across the country, particularly with respect to the identity of the custodian and the length of the custodial period. Moreover, several states take idiosyncratic approaches to absent heirs, which depart significantly from the typical regulation of unclaimed inheritances. Without hard data regarding absent heirs, state policymakers have relied upon, at best, anecdote from the practicing bar and their own intuition, or worse, blind guesswork when regulating unclaimed inheritance. Such reliance has produced regulation that is not founded upon sound policy considerations. To fill this informational void and provide a solid foundation for the regulation of unclaimed inheritances, this Article presents the results of an original, empirical study of absent heirs, which were found within a sample of probate estates from Hamilton County, Ohio. The probate records of these estates were reviewed to determine whether they included an absent heir. If so, data regarding the size of the unclaimed inheritance, the identity of the absent heir, and the reason for the heir’s absence were collected. Additionally, data were collected regarding whether an absent heir eventually claimed the inheritance, and if so, how long after its deposition the inheritance was claimed. This new empirical study provides insights into the real-world experience of absent heirs and suggests various ways in which the regulation of absent heirs should be reformed. First, rather than escheating to the state, the inheritances of absent heirs should eventually be distributed to the decedent’s other heirs. Second, rather than allowing unclaimed inheritances to linger under custodianship for long periods of time, states should prescribe short custodial durations. Finally, rather than naming a statewide entity to serve as temporary custodian of unclaimed inheritances, states should name a custodian that is local to the county in which the decedent died. By implementing these changes, policymakers can better align the regulation of unclaimed inheritances with probate’s overarching goal of efficiently administering decedents’ estates.