Dividing inherited property requires the agreement of all heirs. But what happens when one of them has been out of contact for 20 years—and no one knows whether he is alive or dead?
This was the exact situation our client faced. She had two sisters and a brother, with whom she had lost contact for 20 years. In this situation, when her parents died, the inheritance should be divided equally among the four siblings. But how could they possibly negotiate the inheritance with a brother they couldn’t even reach?
In such cases, the usual approach is to apply to the court for a “Judicial Declaration of Disappearance (실종선고).” According to Korean Civil Act, if a person remains missing for five years or more, the court may issue a “Judicial Declaration of Disappearance,” at which point that person is legally presumed deceased.
Article 27 (Judicial Declaration of Disappearance)
(1) If it is uncertain for five years whether an absentee is alive or dead, the court shall, on the application of any person interested or of a public prosecutor, make a judicial declaration of disappearance.
(2) The preceding paragraph shall also apply where the survival or death of a person who was on a battlefield, aboard a sunken vessel or a downed aircraft, or encountered any other peril that might be a cause of death, is not known distinctly for one year after the termination of the war, the sinking of the vessel or the crash of the aircraft, or the end of any other peril.
Article 28 (Effect of Judicial Declaration of Disappearance)
A person against whom a judicial declaration of disappearance has been made is deemed to have died at the expiration of the period mentioned in the preceding Article.
Since deceased persons have no inheritance rights, if one of your siblings has been out of contact for a long time and your parents pass away, triggering inheritance, it may be the proper procedure to legally declare your missing sibling “deceased” and thereby revoke their inheritance rights.
However, in this case, SLG determined that the Judicial Declaration of Disappearance was not the correct method and attempted a different procedure, which proved successful. SLG’s choice proved to be the right one.
Here is how SLG successfully concluded the inheritance process without pursuing a Judicial Declaration of Disappearance.
Why Declaring the Missing Heir Dead Is Not Always the Answer
As mentioned earlier, under Korean law, the requirement for a person to be declared “Disappeared” is that their whereabouts must remain unknown for five years or more.
In our client’s case, more than 20 years had passed since her brother went missing, so the statutory requirement was easily met. If the brother were declared legally deceased, the three sisters could divide the estate among themselves.
However, one critical question had to be answered first: Did he have a spouse or children?
If so, a Judicial Declaration of Disappearance would immediately trigger “Inheritance by Representation (대습상속)”. His share would pass to his wife and child.
After further verification, it became clear that our client’s brother did indeed have a spouse and a son. Declaring him legally dead would introduce new heirs into the process—individuals whose whereabouts and circumstances were entirely unknown.
In inheritance matters, reaching agreement is often the most difficult part. Bringing in additional heirs with no confirmed contact information would only increase complexity. For that reason, a different approach was necessary to protect our client’s interests.
Locating the Missing Heir Through the Ministry of Foreign Affairs
Another option was to attempt to locate the missing heir. SLG submitted a formal inquiry to the Ministry of Foreign Affairs (외교부) and confirmed that the brother had a registered overseas address as a Korean national residing abroad (재외국민).
However, the records did not indicate when the registration was made, whether he still resided there, or even whether he was alive.
A letter was sent to the registered address. No response was received.
Declaration of Disappearance vs. Appointment of an Administrator for an Absentee’s Property
With direct contact proving impossible, SLG petitioned the court for the appointment of an absentee property administrator (부재자 재산관리인) — a court-appointed representative empowered to act on behalf of a person whose life or death remains uncertain. According to Korean Civil Act, if a person disappears without designating someone to manage their property, the court may appoint an administrator for that property.
Article 22 (Management of Property of Absentee)
(1) If a person has left his domicile or temporary domicile without appointing an administrator for his/her property, a court shall, on the application of any person interested or a public prosecutor, order such steps necessary for the management of his/her property. The same shall apply when the authority of an administrator has come to an end during the absence of his/her principal.(2) If the principal subsequently appoints an administrator, the court shall cancel its order on the application of the principal, administrator, any person interested, or of a public prosecutor.
Before granting the petition, the court conducted its own independent review, examining immigration records, correctional facility data, national health insurance information, and telecommunications history. The court made every effort to locate our client’s brother, who had disappeared, but ultimately confirmed that it was impossible to establish contact with him. The petition was ultimately granted.
However, the appointment alone did not conclude the matter. Because the absentee’s share was being addressed without his direct participation, separate court approval was required before the inheritance could be formally divided. The court therefore reviewed the proposed distribution in detail to ensure that the absentee’s interests were adequately protected.
Once approval was obtained, the mediation record was finalized. The appointed administrator oversaw the remaining procedures, and the subsequent steps — including property disposition and tax filings — were completed in sequence.
Seoul Law Group (SLG) has extensive experience navigating complex international inheritance matters. When an heir is missing, the choice between a judicial declaration of disappearance and the appointment of an absentee property administrator must be made strategically. Selecting the wrong path can significantly complicate the structure of the estate.
We guide clients through these decisions carefully and methodically, ensuring that even long-stalled inheritance matters can move forward.