Looking after the interests of an absent person or the future owner of the property
As transport connections and electronic means of communication have improved, it is increasingly rare that the whereabouts of a shareholder of an estate of a deceased person remain unknown or that the person concerned cannot look after their interests because of long distances. For example, if the whereabouts of the heir are unknown and cannot be found out, a guardian must be appointed to look after the person’s interests in the estate. In addition, looking after the heir’s interests usually requires that there is a person to manage the property that will possibly be received by the heir and to also make decisions concerning the property, if necessary.
A guardian must be appointed for an absent person if:
- the deceased has left an inheritance and the identity or the whereabouts of the heir or the beneficiary in the will are not known or the heir or the beneficiary cannot for some other reason look after their right.
- it is otherwise necessary to look after the right of the absent person or manage the person’s property.
A matter concerning the guardianship of an absent person is always resolved in a district court. If a guardian is required to look after the right of an absent or future owner in the estate, the estate administrator, some other person looking after the property of the estate, the estate distributor or a stakeholder must submit an application to the district court for the appointment of a guardian. The estate administrator or distributor may also otherwise submit an application if the appointment of a guardian is required to perform the partition of property or the division of inheritance. If the matters of the absent person otherwise need to be managed, the application can also be submitted by the person whose interest or right the matters concerns. The guardianship authority may submit an application concerning the matter to the district court, if necessary.
The appointment of a guardian may also be required if the deed of gift or the will states that the property to be received by the beneficiary must be trusted to the management of a person other than the beneficiary’s guardian. For example, it may be important for a grandparent who is donating property to an underage grandchild that the person managing the property during the child’s minority is a person that the grandparent particularly trusts. A person designated in the deed of gift or the will can then be appointed as the guardian.
The prerequisite for appointing as a guardian some other person designated in the will or deed of gift is that the management of the property in this way is in the interests of the beneficiary. The testator or the person donating property must have an acceptable justification for specifying that a person other than the guardian already appointed for the beneficiary should be appointed to manage the property. Otherwise, arranging a separate person to manage the property is not necessarily in the interests of the beneficiary. For example, if it can be assumed in such cases that the guardians’ differing views will make it difficult to use the property for the benefit of the client, the guardian cannot be appointed.
Such matters are always settled in the district court. An application for the appointment of a guardian may be submitted by the person whose interests are being looked after or by the person's guardian, parent, spouse, child or some other individual close to the person. The guardianship authority may also submit the application concerning the matter, if necessary. The person filing the petition must demonstrate that the reasons for the administration of the property in the way specified in the deed of gift or the will are acceptable from the point of view of the beneficiary’s interests.