Dutch Civil Code

Book 1 Law of Persons and Family Law

Title 18 Absence, missing persons and the determination of death

Section 1.18.1 A fiduciary administration in the interest of an absent person

Article 1:409 Appointment of a legal administrator in the absence of the proprietor
- 1. If a person, who has left his home, has not made sufficient arrangements for the administration of his property during his absence and there is a necessity to fill up an existing gap in that administration or to represent the absent person therein, then the Subdistrict Court may appoint, upon the request of any interested person or of the Public Prosecution Service, a legal administrator to administer all or a part of the property of the absent person and to take care of his other interests.
- 2. For the purposes of this Section a person whose existence is uncertain or who cannot be reached is equated with a person who has left his home, even where it has not been established that he actually has left his home.

Article 1:410 Applicability of the statutory provisions for protective administration and guardianship of minors
- 1. As far as the Subdistrict Court has not provided otherwise, Articles 1:338, 1:339,1:340, 1:342-1:357, 1:358 paragraph 1 and 1:359 up to and including 1:363 shall apply accordingly to a fiduciary administration in the interest of an absent person as meant in the previous Article, on the understanding that the legal administrator each year has to submit a written account for his administration at the Registry of the District Court.
- 2. The legal administrator is entitled to a remuneration in conformity with the rules set for this purpose by the Minister of Security and Justice.
- 3. The Subdistrict Court’s authorisation of a submitted written account does not affect the right of the proprietor of the assets under administration to request the legal administrator at the end of his administration to render account again over the same period, insofar this is not unreasonable.
- 4. The legal administrator may also defend other interests of the absent person than those related to his property, except insofar this has been excluded by the Subdistrict Court.
- 5. The Subdistrict Court may at all times discharge the legal administrator and replace him by another.

Article 1:411 End of a fiduciary administration in the interest of an absent person
A fiduciary administration of property in the interest of an absent person ends:
a. by a joint decision of the proprietor and legal administrator;
b. when the proprietor has notified the legal administrator that he terminates the administration of his property, with due observance of a term of notice of at least one month;
c. when the death of the proprietor has been established.

Section 1.18.2 Persons whose existence is uncertain

Article 1:412 Authorisation to exercise the rights of an heir or legate
- 1. Where a person, whose existence is uncertain, becomes entitled to a share in an inheritance or a bequest to which other persons would have been entitled if this person should not be alive, the District Court shall authorise these other persons, upon their request, to exercise the rights of an heir or legatee instead of the person whose existence is uncertain.
- 2. The District Court may, where necessary, call persons to court by means of a public announcement and order protective measures on behalf of other interested persons.
- 3. If, after the court has granted its authorisation as meant in paragraph 1, it becomes clear that the missing person was still alive at the moment on which other persons, instead of him, were called to the estate (inheritance), then the missing person or any other persons with a better right or title may reclaim the assets received from that estate and the benefits (fruits) of these assets from the persons having possession of these assets and benefits; the involved assets and benefits (fruits) may be reclaimed on the basis of the court order in which the missing person has been declared presumably death, yet with due observance of the limitations specified in that court order.
- 4. The previous paragraphs of the present Article apply as well to a life insurance benefit for which the person whose existence is uncertain was appointed as first beneficiary.

Article 1:413 Court order for a declaration that a missing person is presumably dead
- 1. Where the existence of a person is uncertain and the period indicated in the next paragraph has passed, any interested person may request the District Court to be permitted to call the missing person officially to court in order to prove that he is still alive and, if this has not been proven, that the Court shall declare that there is a legal presumption that the missing person is dead.
- 2. a. The period meant in the previous paragraph is five years, to be calculated from the departure or the last sign of life of the missing person.
b. The period is shortened to one year if the person is missing during that period and there are additional circumstances that make it likely that he has died.
- 3. The request meant in paragraph 1 can be filed as well by the Public Prosecution Service.

Article 1:414 Process of calling the missing person to court
- 1. The District Court shall specify the days and hours on which the missing person should appear in court. The period to be observed when calling a missing person to court is one month or so much longer as the court regards necessary. The process of calling a missing person to court is governed by the statutory provisions of Section 3 of Title 3 of Book 1 of the Code of Civil Procedure.
- 2. If the missing person does not appear in court and no other person stands up to plead convincingly that the missing person is still alive, then the District Court shall declare that there is a legal presumption of death, notwithstanding its right to give once again a court order as meant in paragraph 1 and to demand a hearing of witnesses and the production of supporting evidence in proof of the fulfilment of the requirements of Article 1:413.
- 3. The court order enclosing the declaration that there is a legal presumption of death, mentions the day on which the missing person is presumed to have died; the day following the one on which a last sign of life has been noticed, shall be regarded as such day, unless there are enough reasons to suspect that the missing person was still alive for a while after that day.
- 4. The court may determine also that the costs made by the applicant under Article 1:413 paragraph 1 are paid from the assets of the missing person.

Article 1:415 [repealed on 10.07.1978]

Article 1:416 No appeal open against a court order as meant in Article 1:413
No appeal is allowed against a court order in which a person is permitted to call a missing person officially to court as meant in Article 1:413 paragraph 1.

Article 1:417 Death certificate
- 1. Once the court order declaring that there is a legal presumption of death has become final and binding, the clerk of the court where the case was last pending will send a true copy of that court order to the Registrar of Civil Status of the abandoned domicile or, in the absence of an abandoned domicile in the Netherlands, of the municipality of The Hague. This Registrar then draws up a certificate of registration of the court order, that has to be consistent with the decision of the court and that has to mention specifically that it is based on such a court order.
- 2. This death certificate constitutes proof against everyone of the fact that the missing person has died on the day mentioned in that certificate.

Article 1:418 Obligations for the heirs and legatees of the missing person
- 1. Before the heirs and legatees of a person who has been declared presumably dead take possession of his estate, the Subdistrict Court may order that they provide security for what they might have to give back to the missing person if he would return or for what they might have to hand over to heirs or legatees with a better right or title.
- 2. The heirs must make a proper inventory list after they have taken possession of the estate of a person who has been declared presumably dead.
- 3. Registered property may not be alienated or encumbered, except for important reasons and with authorisation of the Subdistrict Court. If it is not possible to divide and apportion the registered assets of the estate other than through a sale and the distribution of the proceeds, then these assets will be placed under administration of a third person who will distribute the benefits from these assets in accordance with what to this point has been agreed upon in relation to the division and apportionment of that property.
- 4. The division of the estate of a person who has been declared presumably dead shall be made by authentic deed, which must specify as well what is distributed to legatees and other beneficiaries.
- 5. The property of the estate should not be wasted and no excessive donations may be made from it.
- 6. If the Subdistrict Court requests so, the heirs and legatees must provide the court with all necessary information.
- 7. The obligations in this Article shall expire on the date specified by the Subdistrict Court and in any case five years after the date on which the death certificate has been drawn up in accordance with Article 1:417. The District Court that has given the court order in which the missing person has been declared presumably dead, may specify in that court order as well that, in view of the circumstances of the situation, one or more of the obligations mentioned in the present Article do not have to be observed.

Article 1:419 Documents to be deposited at the Registry of the District Court
The original or a true copy of the deed providing the requested security, of the inventory list and of the deed of division of property must be deposited at the Registry of the District Court.

Article 1:420 Appointment of a legal administrator
- 1. When the Subdistrict Court is of the opinion that an heir or legatee has not fulfilled the obligations imposed on him pursuant to the two previous Articles, it may appoint a legal administrator for the assets from the estate of the missing person to which this heir or legatee has become entitled; the administration shall end when the Subdistrict Court has decided that this heir or legatee has fulfilled his statutory obligations.
- 2. Insofar the Subdistrict Court has not provided otherwise, Articles 1:338, 1:339, 1:340, 1:342-1:357, 1:358 paragraph 1 and 1:359 up to and including 1:363 apply accordingly to an administration referred to in the previous paragraph, on the understanding that the legal administrator each year has to submit a written account for his administration at the Registry of the District Court.
- 3. The legal administrator is entitled to a remuneration in conformity with the rules set for this purpose by the Minister of Security and Justice.
- 4. The Subdistrict Court may discharge the legal administrator at any time and replace him by someone else.

Article 1:421 Obligations of the spouse or registered partner
The provisions of the previous three Articles with regard to heirs receiving assets from the estate of a person who is presumably dead, apply accordingly to this person’s spouse or registered partner who has received assets as a result of the dissolution of a community of property or an equalisation on account of a marital equalisation obligation. The spouse or registered partner, however, is not obliged to provide security for what has been received on that basis.

Article 1:422 Return of the missing person or an incorrect date of his death in his death certificate
- 1. If the missing person returns or it appears that the date of his death on his death certificate is incorrect, then each person who, pursuant to the previous Articles, has possession of any asset of the missing person or who holds such an asset on account of a fiduciary administration must render account for and hand over the assets to the returned missing person or to those who then appear to be entitled to these assets.
- 2. Rights of third persons obtained in good faith will be respected. If, however, assets have been acquired gratuitously, the court may order the persons who have enjoyed an advantage as a result of this to pay a reasonable compensation to the persons who unjustly have lost their entitlements to these assets.
- 3. Where the life of the missing person was insured for the benefit of third persons, these third persons remain entitled to what, prior to the return of the missing person, has been paid out already and to what already has become due to them on account of that insurance; in that event no other entitlements can be derived from the insurance policy.

Article 1:423 Incorrect death certificate
- 1. If it is proven within five years after the day on which the death certificate has been drawn up in accordance with Article 1:417 that this certificate is incorrect, then the persons who have enjoyed in good faith the benefits (fruits) of the missing person’s estate shall only have to return one-half thereof; if the incorrectness of the death certificate is proven later, then they do not have to return anything of the enjoyed benefits (fruits).
- 2. If it is proven more than ten years after the day on which the death certificate has been drawn up that this certificate is incorrect, then the persons who in good faith have taken possession of the assets form the missing person’s estate shall merely have to return the assets which are still in their possession and only in the state at that time, in addition to the price of the transferred property or assets that were received in return for such assets; the benefits enjoyed from these or other assets do not have to be returned or compensated and no compensation is due for assets that are no longer available; there is neither an obligation to render account.
- 3. Any obligation to return property shall cease to exist on expiry of twenty years since the day on which the death certificate was drawn up.

Article 1:424 [repealed]

Article 1:425 Civil status and authority over the children of the missing person who has returned
- 1. If the wife of a missing person has entered into a new marriage, while afterwards it becomes clear that the missing person was still alive on the day mentioned as his day of death in his death certificate that has been drawn up in accordance with Article 1:417, then the marriage with the missing person is nevertheless regarded to have been dissolved at the date of his death as mentioned in that death certificate insofar it concerns the determination of the civil status of her children born prior to the new marriage.
- 2. The person who has been declared presumably dead and who has not regained authority over his minor children upon his return, may request the District Court to grant him authority again. If the missing person files such a request jointly with the other parent in the interest of the child or when no one exercises authority over the child or when the child is placed under guardianship of a legal guardian, the request may be denied only if there is a well-substantiated ground to fear that the interests of the child would be neglected if the request would be awarded. In other situations the request shall be awarded only if the court considers this to be in the best interests of the child.

Section 1.18.3 Determination of death in certain cases

Article 1:426 Declaration of death
- 1. If the corpse of a missing person could not be found but, taking into account all circumstances, his death may be regarded as certain, then the District Court may, upon the request of the public prosecutor or any interested party, declare that the missing person has died:
a. if the disappearance occurred in the Netherlands;
b. if the disappearance occurred during a voyage with a ship or aircraft that has its home base in the Netherlands;
c. if the missing person had the Dutch nationality;
d. if the missing person had his domicile or habitual residence in the Netherlands.
- 2. When a person has died outside the Netherlands and no death certificate has been drawn up or such a death certificate cannot be submitted, the District Court may, upon the request of the public prosecutor or any interested party, declare that this person has died:
a. if the death occurred during a voyage with a ship or aircraft that has its home base in the Netherlands;
b. if the deceased person had the Dutch nationality;
c. if the deceased person had his domicile or habitual residence in the Netherlands.
- 3. The legal claim or request meant in paragraph 2 and 3, or the accompanying documents, must contain the data mentioned in Article 1:427 to the extent that this is possible.

Article 1:427 Content of the court order
- 1. The court order enclosing the declaration that the person meant in Article 1:426 is dead, shall mention the date and, if possible, the hour of death. When the day of death is unknown, the District Court will establish that date and mention it in its court order. When giving its decision the District Court shall take into account all evidence and every indication with regard to the conditions under which the death has set in and the time of death.
- 2. Furthermore, the court order shall mention the deceased’s surname, forenames, gender and, if possible, his place of death, his domicile, his place and date of birth and the surname and forenames of the person or the persons with whom the deceased was married or with whom he had entered into a registered partnership.

Article 1:428 [repealed on 01.04.1995]

Article 1:429 Registration in the register of death
As soon as the court order has become final and binding, the clerk of the court where the case was last pending, shall send a true copy of that court order to the Registrar of Civil Status of the municipality of The Hague. This Registrar then draws up a certificate of registration of the court order, which is registered in the Register of Death.

Article 1:430 Legal effects of a registration in the Register of Death
- 1. The certificates drawn up in accordance with Article 1:429 shall be regarded as a death certificate in the sense of Article 1:19f paragraph 1.
- 2. Articles 1:422, 1:423 and 1:425 apply accordingly if a person, who has been declared dead under application of Article 1:426, later on returns, or if it is proven that the day of death mentioned in the certificate of registration referred to in the Article 1:429 is incorrect.