1.00 Absentees, Estates Of

1.00.1

In General

Arkansas statutes regulate the distribution of the estate of an absentee. This statute generally describes the absentee as an individual, who has disappeared for an unreasonable period of time (without rational explanation) from his usual place of residence or domicile. To qualify as an absentee, the person must be unlocatable, whether the person is dead or alive. If a missing person has appointed a representative to attend to his property within the state or provided some means of contact or communication, that person does not qualify as an absentee. Under some circumstances, a nonresident, who has had no physical contact within the state, may be designated as an absentee, and the court is statutorily required to appoint a trustee to protect the nonresident's property rights. ACA 28-72-101. This type of absentee may be an unlocatable heir or distributee in matters of succession or a non-resident defendant in matters of litigation. ACA 9-34-204 and ACA 12-12-205.

Anyone with an interest in the property of the absentee is authorized by this statute to petition the court to appoint a representative to preserve the absentee's property rights in an action in rem. The statutory title of the court appointee in Arkansas is trustee. ACA 28-72-102

The procedural prerequisites for the appointment of the absentee's representative, and the powers, duties, and liabilities of such court appointees are statutory and specific. The trustee of the absentee is empowered by court order in compliance with the statute, and derives no authority from the absentee. The absentee's representative owes a duty to the court to comply with the statute and owes no duty to the absentee personally. A judgment rendered against an absentee is a judgment in rem that is effective only as to the property seized. Statutory requirements for the taking of a bond. ACA 28-72-104

The purpose of this statute is to protect the property of an absent or missing person and prevent its waste or destruction during the period of absence or until proof of death. Arkansas statutes do not empower the representative to distribute or to mortgage the absentee's property. In a proceeding to obtain administration on the estate of an absentee, the circuit court is authorized by statute to receive proof of the fact and time of the absentee's death. At any time, before, during or after the proceeding, the court may decide the necessity to administer the estate under the general statutes for administration and distribution of decendents' estates. ACA 16-40-105. See AETNA Life Ins. Co. v. Robertson, 195 Ark. 237, 112 S.W. 2d 436 (1937).

It is generally held that a presumption of death arises from the continued and unexplained absence of a person from home or place of residence, if no one has knowledge or information, concerning his location for a statutory period of time. Under Arkansas law, the unlocatable person is presumed dead after five years have elapsed from the disappearance of the absentee. Under the Arkansas statute, the time period to raise the presumption of death is set at 5 years. ACA 16-40-105 See Metropolitan Life Ins. Co. v. Fry, 184 Ark. 23, 41 S.W. 2d 766 (1931).