california death process probate paperwork
What are the legal ramifications of a legally dead person turning up alive?
<p>Context: I am writing an urban fantasy story in which a man dies, is declared dead, and comes back to life via supernatural means on the autopsy table. The existence of the supernatural is not common knowledge in the universe of the story, and his un-death is completely inexplicable as far as medical science and the law is concerned; nonetheless, a legally dead man ends up being alive.</p>
<p>What kind of procedures would be necessary to undo the legal death? What happens to his property (note: the reanimated character is a young man with no written will)? If he's a renter, how long will it take for his landlord to push all his stuff out and welcome a new tenant? How much paperwork does he have to fill out?</p>
<p>Note: the story is set in the USA, and tentatively set in the state of California in the late 2010s.</p>

<blockquote>
<p>What kind of procedures would be necessary to undo the legal death?
What happens to his property (note: the reanimated character is a
young man with no written will)? If he's a renter, how long will it
take for his landlord to push all his stuff out and welcome a new
tenant? How much paperwork does he have to fill out?</p>
</blockquote>
<p>If the person is on the autopsy table, while he may have technically been legally dead, the person's death certificate has probably not even been issued yet, since normally an autopsy is done, in part, to determine a cause of death for purposes of preparing a death certificate.</p>
<p>Normally, an autopsy is only prepared when the cause of death is uncertain or needs to be documented for legal reasons (e.g. an accidental or potentially criminal death or one that is just unexplained), and the need for one postpones the preparation of a death certificate. If the cause of death is self-evident and there is no indication of foul play, an autopsy isn't done and the preparation of a death certificate proceeds more quickly.</p>
<p>In other words, while he may be &quot;legally&quot; dead (defined as discontinuation of the function of certain bodily processes like brain activity and heartbeat and breathing), he very likely isn't yet &quot;bureaucratically&quot; dead.</p>
<p>You can be &quot;legally&quot; dead days before anyone even discovers that you have died, with the time of your death determined only retroactively, but that doesn't have any practical effect until someone discovers it and it makes its way through the bureaucratic and court process.</p>
<p>It takes a few days after a death for a probate proceeding to establish death, heirship and the validity of any will (many states have a 120 hour minimum waiting period after a date of death and most autopsies are within 72 hours). Even if a probate proceeding had been commenced, a simple affidavit or notice that someone was not, in fact, dead would cause the case to be summarily dismissed and it is unlikely that much would have happened in the court process since then.</p>
<p>With older people, one of the fastest agencies to act is the Social Security Administration discontinuing benefits. But a younger person wouldn't have gotten those to start with, so that wouldn't be a factor.</p>
<p>Life insurance companies normally won't pay until a final post-autopsy death certificate with cause of death is in place (so they can look for fraud in the life insurance application relative to the cause of death stated).</p>
<p>It would be very usual for a landlord to take action sooner than the month after learning of the death, and often the estate will keep in a lease in force much longer. Next of kin may have removed some valuables prior to any official declaration, and while most people would promptly return them upon learning of the &quot;mistake&quot;, a few items might not be recovered.</p>
<p>The final death certificate would probably never be prepared. A preliminary death certificate might be quashed as erroneous and not filed with the Vital Statistics Department of the State Department of Health, by the preparing party, through a simple, oral, in office instruction to the person in the coroner's office who handles those filings.</p>
<p>Since there isn't a formal judicial declaration of death or a final death certificate, simply informing an agency or person that received a preliminary notice that it was in error, perhaps by letter or email, would suffice. Even if a final death certificate had just issued, the person who filed it could probably fill out a simple correction form so soon (probably just a matter of hours) after it was filed. It wouldn't be that disruptive.</p>
<p>The messy cases are when there has been a legal declaration of death and then months of actions have been taken in reliance on the determination that someone is dead.</p>

<p>There have been cases where a legally dead person tried to come back from the dead, such as the case of <a href="https://ballotpedia.org/Allan_H._Davis" rel="noreferrer">Donald Miller</a> in Hancock County OH, who was declared presumptively dead under <a href="https://codes.ohio.gov/ohio-revised-code/section-2121.01" rel="noreferrer">ORC 2121.01</a>. According to the news media, his lawsuit to undo the action failed because the law provides no provision for &quot;taking it back&quot;, once 3 years have passed after the legal declaration of death. Under that law, all of his legal interests would have been disposed of.</p>
<p>What it would mean to &quot;undo&quot; his death would be to declare that the distribution of his property was <em>not</em> lawful, therefore he still owned his house, car, investments and so on. Therefore the executor of the estate would be (potentially) &quot;on the hook&quot;: or, the brokerage firm that sold those shares would be on the hook because the owner was not &quot;actually dead&quot;. But this won't happen in Ohio, because the law says that &quot;The death of such presumed decedent shall for all purposes under the law of this state be regarded as having occurred as of the date of such decree&quot;. In other words, the law treats such a declaration of death as final (after the 3 year &quot;uncertainty&quot; period).</p>
<p>There is even less law addressing magical changes in death-status. In Ohio, pursuant to state supreme court rules every county has rules for probate, such as these for Lawrence County where under rule <a href="https://www.supremecourt.ohio.gov/Clerk/Local%20Rules/lawrenceCoPD.pdf" rel="noreferrer">60.2</a> &quot;The applicant must file a true and accurate copy of the decedent’s death certificate with the application for authority to administer the estate&quot;. The local registrar of vital statistics legally records the fact of death, because the person who legally disposes of the remains <a href="https://codes.ohio.gov/ohio-revised-code/section-3705.16" rel="noreferrer">supplies</a> a certificate, and that certificate is presented to &quot;the attending physician of the decedent, the coroner, or the medical examiner&quot;. Theoretically, that person knows the technical part of <a href="https://codes.ohio.gov/ohio-revised-code/section-2108.40" rel="noreferrer">ORC 2108.40</a>, which says</p>
<blockquote>
<p>An individual is dead if the individual has sustained either
irreversible cessation of circulatory and respiratory functions or
irreversible cessation of all functions of the brain, including the
brain stem, as determined in accordance with accepted medical
standards. If the respiratory and circulatory functions of a person
are being artificially sustained, under accepted medical standards a
determination that death has occurred is made by a physician by
observing and conducting a test to determine that the irreversible
cessation of all functions of the brain has occurred.</p>
<p>A physician who makes a determination of death in accordance with this
section and accepted medical standards is not liable for damages in
any civil action or subject to prosecution in any criminal proceeding
for the physician's acts or the acts of others based on that
determination.</p>
<p>Any person who acts in good faith in reliance on a determination of
death made by a physician in accordance with this section and accepted
medical standards is not liable for damages in any civil action or
subject to prosecution in any criminal proceeding for the person's
actions.</p>
</blockquote>
<p>So as an executor, you would not be liable for the damage (trespass on property interest) arising from an erroneous medical declaration of death, and you can't get your car back.</p>
