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1996 SESSION
963014761Be it enacted by the General Assembly of Virginia:
1. That §§ 26-68.1, 64.1-105, 64.1-106 through 64.1-110 and 64.1-112 of the Code of Virginia are amended and reenacted as follows:
§ 26-68.1. Proceedings to sell property of absentee after failure to locate heirs.
Any duly appointed conservator of the estate of a person the presumption of
whose death has been raised by such person going from the Commonwealth and
not returning for seven successive years or by such person disappearing for
seven successive years without being heard from under §
64.1-105 or of the estate of any such person known to be
dead may, after diligent, unsuccessful effort to locate
the heirs of such person for not less than two years after such
the death shall have become became known
or presumed, may petition the court having jurisdiction over lands
owned by such the decedent for permission to sell such
land. Proceedings under this section shall conform as nearly as may be to
proceedings relating to the sale of land owned by an infant. Such
The conservator shall account for the proceeds of said
the sale, and the net proceeds, after
disbursement of costs, shall be conserved in such manner as the
court may deemdeems proper.
§ 64.1-105. Presumption of death from absence or disappearance; in cause wherein death comes in question.
If any Any person who has resided in this Commonwealth
either who (i) leaves and , does
not return to the Commonwealth for seven years successively and is not heard
from or,; (ii)
disappears for seven years successively and is not heard
from,; or (iii)
disappears in a foreign country, whose body
has not been found and who is not known to be alive, upon
issuance of a report of presumptive death by the Department of State
of the United States following an investigation by a competent local
authority, shall be presumed to be
dead. if any Any person not residing in
this Commonwealth, but owning real or personal property herein, who
disappears for seven years successively from the place of his residence
outside of this Commonwealth and is not heard from, any such person
shall be presumed to be dead.
The presumption created by this section shall arise
in any cause wherein his death the person's death
is in question, unless proof is offered that he was alive within
that the time specified or, in the case
of a presumed death in a foreign county, at any
time before or after the report of
presumptive death was issued. Before any final order or
decree is entered in any such the cause in favor of the
alleged heirs, devisees or legatees of the
supposedpresumed decedent, or persons claiming by,
through or under them, or any of them, proceedings shall be held in conformity
with §§ 64.1-107 through 64.1-112, provided that the.
The person so presumed to be dead, his heirs at law,
devisees, next of kin and legatees, may be made parties defendant to
proceedings in respect to real or personal property in which
hethe person presumed dead may have an undivided
interest, by order of publication or other process as provided by law.
Such The proceedings, whether in the nature of partition,
eminent domain or otherwise, shall not be stayed in respect to the division,
sale or other disposition of the entire property and the.
The sections above mentioned shall be applicable only to the portion of
the property set apart or to the share of the proceeds to which such person
would be entitled.
§ 64.1-106. Distribution of fund when presumption of death not applicable.
If in any chancery cause wherein any estate or fund is to be distributed the
interest of any person therein depends upon his having been alive at a
particular time and it is not known and cannot be shown by the exercise of
reasonable diligence whether such person was alive at that time and the case is
one in which the legal presumption of death from absence does not
apply, the court may, if it sees no cause to the contrary, enter its decree
distributing the estate or fund among those who would be entitled thereto if it
were shown that such person above referred to were dead at such particular
time; provided, however, that. However, a
proper refunding bond shall be given, with condition to
account for the estate or fund to any person who may establish title thereto
adverse to that of the distributees, or to the heirs, personal representatives
or assigns of such person.
No motion shall be made hereunder except after reasonable notice to all parties
upon whom service may be had; nothing. Nothing in this
section shall be construed to affect in any way any requirement of law as to
service or publication of process.
§ 64.1-107. Probate or administration not to be granted by a clerk.
Neither probate of a will of a person presumed to be dead on account of
absence from his last domicile in this Commonwealth for seven years or
more, nor administration upon the estate of such person shall
in any case be granted by a clerk.
§ 64.1-108. Probate or administration before court; notice of application.
Whenever a will of any person supposed presumed to be
dead on account of absence for seven years or more from the place of his
last domicile in this Commonwealth shall be is offered for
probate, or whenever letters of administration on the estate of any person
so supposedpresumed to be dead shall be
are applied for, the court having jurisdiction if such person were dead,
if satisfied that the will so offered for probate should be probated
or that the applicant would be entitled to letters of administration were the
supposed presumed decedent in fact dead, shall cause to
be advertised in a newspaper published in the county or city once a week for
four successive weeks the fact of the offer or application, together with
notice that on a certain day, which shall be at least two weeks after the
advertisement, the court or judge will hear evidence concerning the
alleged absence of the supposed presumed decedent and the
circumstances and duration thereof.
§ 64.1-109. Application for order when probate or administration unnecessary.
Whenever any person shall claimclaims, either as widow or
heir at law or otherwise, any property of a person supposed
presumed to be dead on account of absence for seven years or more
from the place of his last domicile and there shall be
is no will or no necessity for a grant of letters
of administration, such person he may apply to the
court, which would have jurisdiction for probate or for granting
letters of administration, or the judge thereof in vacation, to have
the fact of such descent established and thereupon the court shall, if
. If satisfied that the person so claiming would
be so entitled were the supposed presumed decedent in
fact dead, the court shall cause notice of such application to be
published as provided above in respect to offer of a will for probate or
application for letters of administration in § 64.1-108.
§ 64.1-110. Hearing application; evidence receivable; further publication.
At the hearing, which shall be either in term or vacation, the court
or judge shall hear such legal evidence as may then be offered for
the purpose of ascertaining whether or not the presumption of death is made out
and if . If satisfied that the legal presumption of
death is made out, the court or judge shall so order. If
the evidence show shows the length of absence of
supposed a presumed decedent to be
more than seven years, but less than twenty years, the court or
judge shall forthwith cause notice of the order to be inserted once a
week for two successive weeks in a newspaper published in the county or city
and also, when practicable, in a newspaper published at or near the place where
the supposed presumed decedent had his residence when
last heard from. Such The notice shall require the
supposed presumed decedent, if alive, or any person for
him, to produce to the court, or the judge thereof in
vacation, within twelve weeks from the date of its last
insertion, satisfactory evidence of his continuance in life. If
there be is not in the county or city a
newspaper in the county or city in
which the publication required by this section and §§
64.1-108 and 64.1-109 may be had, the same may be published in such newspaper
having general circulation therein as the court or judge shall
order.
§ 64.1-112. Distribution of estate; refunding bond; investment.
Before any distribution of the proceeds of the estate of such supposed
a presumed decedent shall be is made
and before the sale of any real or personal property passing in kind
by persons claiming the same as heirs at law or devisees, the persons entitled
to receive such proceeds or such property in kind shall give a refunding bond
with surety to be approved by the court or judge, in such form as
the court or judge shall direct, and with condition that if the
supposed presumed decedent
shall is in fact be alive at that time, they
will respectively refund the amounts received by each on demand, with interest
thereon; but if. If the persons entitled to receive the
same are unable to give the security aforesaid, then the money shall
be invested under an order of the court or judge in such manner as
the court or judge may approve, which. The
investment may be changed from time to time as the court or judge
may deemdeems proper. The interest arising from
such investment shall be paid annually to the persons appearing to be entitled
thereto and such. The investment shall continue until
security is given, as aforesaid, or the court or judge, on
application, shall orderorders it to be paid to the
persons appearing to be entitled to it. But if
If the evidence shows the length of absence of the
supposedpresumed decedent to be more than fifteen years,
the court or judge shall not require surety on such refunding bond.