CAN YOU OPEN A SUCCESSION WITHOUT A DECEDENT?

A Succession is the transmission of the estate of the deceased to his successors.  Usually, the fact that there is a “deceased” is obvious.  A person dies on a particular date, his family and friends can attest to it, and there is documentary evidence to prove it, like a death certificate, obituary, medical records or the like.  But, what happens if the “deceased” just goes missing or the “deceased” disappears under circumstances such that his death seems certain, but his body has not been found.

Believe it or not, the Civil Code provides for both situations.  The Civil Code says that one who has been an absent person for five years is presumed to be dead, and an interested party can obtain a judgment declaring the death of the absent person.  The Code also provides for the situation where the person has not an absent person for five years, which can be a long time if you are the heir or legatee, but has died under circumstances such that his death seems certain.  What is such a situation?  Well, there are not many cases to guide us, but some circumstances seem obvious.  For example, if a plane goes down at sea and no survivors are found, it would seem certain that the person has died.  Other circumstances may not be so obvious, but surely there are many other situations where it is reasonable to say that the persons death is a certainty.  What about a murder where the murderer hides the person’s remains?

Another interesting question is, what do you have to prove to satisfy the “death seems certain” requirement?  Surprisingly, one case says that you have to show death seems “certain” by a preponderance of the evidence.  Can you show a seeming certainty by a preponderance?  Well, my guess is that you can.

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