The ‘Two and a Half Men’ Finale and Presumption of Death Probate

I finally got around to watching the ‘Two and a Half Men’ series finale on CBS recently. After 12 seasons, it was time to write its obituary. Surprisingly enough, I actually found the finale to be moderately entertaining. Perhaps it was due to the dialogue involving unclaimed property and death certificates.

In a nutshell, Charlie had supposedly died 4 years ago by slipping in front of a train in France. That information had come from his stalker-turned-wife, Rose. Cue the funeral and wacky hi-jinx over the handling of his ashes. Fast forward 4 years to the series finale, and viewers find out that Charlie didn’t actually die by rail accident, but that Rose had been keeping Charlie in a dungeon — and now he’s escaped.

Meanwhile, Charlie’s brother, Alan, gets a letter addressed to Charlie notifying him of $2.5 million worth of unclaimed royalties. After calling to make claim as ‘next of kin’ (which he wasn’t because Charlie had a daughter), Alan is told that he just needs to send a death certificate (actually, he would need a lot more — namely, proof that he was appointed administrator for his estate). Anyway, he tries to procure the death certificate from his mother, but she doesn’t have one either. It seems nobody does. Then, strange and threatening packages, letters and texts start arriving and they discover that the royalty check had been re-routed to a Cayman Islands account. Once presumed dead — Charlie is alive and plotting his revenge! (spoiler: he’s squashed by a flying piano as the series wraps)

OK, so Charlie was (wrongly) presumed dead. What does this have to do with probate?

This is an (albeit absurd) example of a possible “presumption of death” probate (often referred to as ‘declaring death in absentia’). What is the issue? Well, generally to administer a decedent’s estate, you first need a death certificate issued. But, there was no death certificate because there was no body.

This situation comes up occasionally, often in tragic circumstances. How? A few scenarios:

• The individual is (allegedly) killed, but no body is ever found (Example: Natalee Holloway, and possibly Stacey Peterson);
• An individual disappears without a trace (example later); or
• The individual apparently dies in an accident, but the body isn’t, or can’t be, recovered.

Regarding that last scenario, consider three prominent (including two local) examples:

• September 11, 2001 — New York actually amended its statute in 2002 to make the process easier for presumed 9/11 victims.
• Steve Fossett — In 2007, the wealthy Chicago adventurer was declared presumed dead by (now retired) Cook County Judge Jeffrey Malak after Fossett’s plane had disappeared over the Nevada desert.
• Malaysia Airlines Flight 370 — Just last year, Cook County Judge Susan Coleman declared a Chicago couple dead who were on the ill-fated Mayalsian airliner that disappeared between Beijing and Malaysia.

The Legal Process for Declaring Presumed Death

Section 6-20 (for estates with a will) and Section 9-6 (for estates without a will) of the Illinois Probate Act lay out the procedures necessary to open an estate based upon a presumption of death. In brief, in addition to the usual probate steps, the petitioner must:

• Lay out the facts and circumstances that raise the presumption;
• State the presumed deceased’s last known post office address;
• Provide the name and address of anyone in possession or control of the decedent’s property; and
• Mail and publish notice of hearing to the decedent, asset holders, heirs and legatees.

There is a common misconception that it is necessary to wait 7 years. That’s not quite true. The above scenarios involving Fossett and the couple on the Malaysian airliner were initiated just months after the incident. The distinction is that the ‘presumption of life’ switches to a ‘presumption of death’ after a person is missing for 7 years. This generally means that stronger and clearer evidence is required if the petition is brought within the first 7 years.

If the court approves the petition, then the individual is officially declared deceased for all purposes and a decedent’s probate administration can commence.

The Return of the Presumed Dead

Since the court is making a presumption, what happens if that presumption later turns out to be incorrect? Charlie was presumed dead for 4 years. If this was real and he was declared deceased by a court, what happens when he reappears? Chaos, pretty much. Consider the following examples:

• An Ohio man, Donald Miller, went missing in 1986. About 5 years later he was declared presumed dead. Fast forward fifteen years — Miller reappears and tells the probate court that he had skipped town because he lost his job, was an alcoholic and simply didn’t know what else to do. The judge’s response? Sorry, you waited too long and you’re still dead. Wait, what!? Over at the “Lowering the Bar” legal humor blog, the author speculates whether Miller could be charged if he now committed a crime (dead people normally can’t be prosecuted).

• Samuel Zagaria had been missing for nine years when a Cook County Probate Judge declared him deceased in 2009. During the course of administering his estate, the estate attorneys discovered that someone had been using Mr. Zagaria’s social security number to secure food stamps. After tracking that lead down, they found Mr. Zagaria. The court ultimately revoked the administrator’s letters of office and ordered Mr. Zagaria’s property returned to him. That was not the end of this story though. A battle then ensued over whether Mr. Zagaria was liable for the attorneys’ fees for his administering his estate. The appellate court said yes (even though the attorneys inexplicably waited until after the assets had been returned to Zagaria). A postscript: Mr. Zagaria passed away (this time for real) in September 2014 and his estate is now being administered (again), this time pursuant to a will.

Conclusion

Two and a Half Men was presumed dead when Charlie Sheen started “winning.” Still, these kinds of cases are often tragic, and can be both legally and emotionally challenging to pursue. In appropriate situations though, probate law does provide a much-needed remedy to enable a missing person to be declared deceased in order to secure the proper administration of their estate.