Probate law’s specific requirements vary from state to state. However, all states require due diligence in determining and locating heirs. This applies equally to named beneficiaries by will and heirs at law when the decedent is intestate. Beneficiaries and heirs both have the right to be informed of probate proceedings and to dispute or raise objections to the findings. This makes the location and notification of these heirs an integral component of the probate process.
The difficulty lies in the very definition of due diligence. Some states refer to this as “reasonable inquiry,” where others assert that “diligent and exhaustive” efforts are required. These terms are problematic due to their inherent ambiguity. Other factors that impact the determination of due diligence are the size of the estate, the number of presumed heirs, degree of relativity, and the missing heir’s actual interest in the estate. In general, the bar rises with the size and complexity of the estate. The search for a second cousin with a one-tenth share of a $100,000 estate will not require the same level of search effort as a missing sibling with a one-third share of a $10 million estate. This adds to potential confusion, as the same research and documentation deemed a reasonable inquiry for one case may be declared insufficient for another.
What “Diligent” Requires, State by State
All states require due diligence, however, the specifics on what constitutes due diligence vary by jurisdiction, with New York being one of the most stringent. For example, New York’s Surrogate’s Court Rule 207.16(d) states in part:
(d) If the petitioner alleges that any of the distributees of the decedent or others required to be cited are unknown, or that the names and addresses of some persons who are or may be distributees are unknown, petitioner must submit an affidavit showing that he or she has used due diligence in endeavoring to ascertain the identity, names and addresses of all such persons. The affidavit will be deemed to satisfy the requirement of due diligence if it indicates the results obtained from among the following:
(1) examination of decedent’s personal effects, including address books;
(2) inquiry of decedent’s relatives, neighbors, friends, former business associates and employers, the post office and financial institutions;
(3) correspondence to the last known address of any missing distributees;
(4) correspondence or telephone calls to, or internet search for, persons of same or similar name in the area where the person being sought lived;
(5) examination of the records of the Motor Vehicle Bureau and Board of Elections of the state or county of the last-known address of the person whose whereabouts is unknown.
In states such as Florida, the courts have allowed publication of notice around the last known address of a missing heir to serve as a “diligent search and reasonable inquiry.” However, this is only acceptable after standard and accepted methods have yielded no result. Publication is a last line of defense and is in no way considered a substitute for a comprehensive, documented search.
What a Reasonable Inquiry Actually Looks Like Today
Today courts are increasingly requiring the search of multiple social media sites and people-finding databases in addition to established traditional methods. Working with my own clients, I frequently use sources such as Facebook, Instagram, and X to locate heirs. I recently located an heir who moved to Costa Rica over 20 years ago by using her LinkedIn account to establish the location of her business. This allowed me to narrow my search to the specific area and obtain her last known address.
Lately the practice of “reasonable inquiry” has expanded. These are the most widely accepted components of a reasonable inquiry:
- All methods listed above
- A search of vital records, including the Social Security Death Index
- A search for newspaper archives, such as obituaries
- A search for court records in the locality of the last known address, such as property records, marriage and divorce filings
- A search for military records
- Online listings for any professional license held that may require a current address on file
- Searching through social media accounts and people-finding databases
Depending on the size and complexity of the estate, the services of a professional genealogist or a private investigator may be required. A major caveat to the use of obituaries is that the information is only as accurate as the person providing it. At the beginning of my career, I sometimes found myself chasing a “cousin” or “sister” that had absolutely no relationship with the family. The same holds for children. Occasionally, they are stepchildren who came in with a marriage and are not biological. Unless formally adopted, they do not inherit unless specifically named as heirs.
Documentation Is the Real Defense
There is a saying in the medical field that if it isn’t documented, it didn’t happen. This is sound advice when determining due diligence. Documentation is the cornerstone of a defensible claim of due diligence. The “three C’s” are an invaluable foundation for documentation. It needs to be clear, concise, and contemporaneous. Documentation in real time is essential and needs to show the date, method, source, and outcome of the search. A negative outcome should not be considered a waste of effort.
A Case Study: When Someone Doesn’t Want to Be Found
Although rare, there are cases where, for reasons known only to them, a person will go to great lengths not to be found. I had a case where two brothers were the only heirs, and 20 years prior, one of them had cut ties with the family, changed his name, moved away, and scrubbed his existence from all available records. We’ll call him brother A. The other brother, my client, was aware of the new name, and although there was no obituary found and no listing in the Social Security Death Index, I was able to assist my client by providing detailed search records for brother A’s birth name and new identity. Due to brother A’s age and lifestyle choices, my client petitioned the court to have him declared legally dead. My client’s position was that brother A may have died as a “John Doe” with no available record of his death. Since there was no record of brother A still being alive, my client prevailed and was declared the sole heir.
The Liability Question
The responsibility for locating and notifying beneficiaries and heirs is a fiduciary role and, as such, carries the possibility of liability if an heir who wasn’t found surfaces to contest the distribution of the estate. The best and most successful defense is a thorough, dated, comprehensive log of all search activities, including negative search results. This documentation should be treated as a legal document constructed to the same evidentiary standard that a court would expect. To be a defense against liability, documentation should be able to withstand scrutiny by an unconvinced guardian ad litem or opposing counsel. Public notification should only be used as a last resort when all other methods have been thoroughly documented and have failed to locate the heir or heirs in question.
Due Diligence in Practice: Two Real Cases
For an example of how due diligence works, consider these two cases. In case one, I was contacted by a husband and wife from Georgia. The husband’s uncle was married, had no children, and predeceased his wife. When she passed, her will named the husband and wife as the only beneficiaries of her modest estate. She had one sibling, also childless, who predeceased her. Since her parents and all their siblings were deceased, her heirs at law would be the children of her parents’ siblings. When presented for probate, even though she had a will, the court required notification of one heir from her paternal line and one heir from her maternal line. A basic family tree was constructed to identify the heirs, and since this was a family from a small town in Georgia, locating an address for these heirs was a straightforward process using family information from the clients and public databases, verified by a people-search tool. This satisfied the court.
The second case has been ongoing since 2014. The attorney who contacted me is the third law firm this client has hired. The client is one of 42 heirs at law in a Florida case involving multiple real estate holdings and several investment accounts. There have been multiple suits and counter suits among the known heirs, and I was tasked with verifying and locating all other possible heirs. The search became exponentially more difficult when, due to ongoing litigation, I was required to sign a non-disclosure agreement. This case required months of research utilizing forensic genealogy, public and subscription-based records, a paid people-search website, online newspapers, published family trees, military and court records, and social media. Each step had to be meticulously documented, and a separate source log and bibliography was created. These two cases clearly demonstrate that what constitutes due diligence in one case can be woefully insufficient for another.
Conclusion
Due diligence or “reasonable inquiry” can mean many different things depending on the size of the estate, the number and degree of consanguinity of potential heirs, and the presiding jurisdiction. However, the basics remain the same. The surest defense against potential liability is thorough research using the methods and resources outlined in this article, documented contemporaneously and treated with the same care and precision as any other evidentiary document. When the number of named heirs is excessive, or the heirs at law are unknown, it can be beneficial to seek the services of a professional genealogist or heir finding firm.
FAQs
Is a Google search enough to satisfy the diligent search standard? No. A Google search can be a valuable tool to gather preliminary information; a search engine query does not meet the standard of the court.
Can notice by publication replace a direct search for a missing heir? No, not on its own. Notice by publication is only recognized after an exhaustive, correctly documented search has been conducted and failed to locate the person.
What happens when a missing heir emerges after the estate has been distributed? The potential outcome can vary depending on the strength of the original search. A comprehensive, well-documented search record proportional to the size and complexity of the case is always the best defense against liability exposure to the fiduciary and a challenge to the distribution.
Expert Tips
- Always log all findings, even negative ones, when they happen.
- Scale search efforts to the missing heir’s share in the estate, not only the estate’s overall value.
- Always include both social media and people-search tools. Courts are increasingly requiring these.
- Never file for notice by publication until all other search methods are exhausted and documented.
- When family history is unknown or complicated, bring in a professional genealogist.
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By Norby Bandan | HeirPros
