When a loved one goes missing it is emotionally draining for their friends and family who are left wondering where they are and whether they are safe. As well as this, the situation can be practically draining, as you have to deal with matters that are left behind, such as paying a mortgage and bills. As time passes, and with no contact from the missing person, it might be appropriate to presume that they have died.
If your missing loved one has been gone for over 7 years, or if you have evidence to suggest that they have died, then it may be appropriate for you to apply to the Court for a Declaration of Presumption of Death.
If the Court grants your application, then it means that they are satisfied the missing person has indeed died and so all matters associated with the death of an individual can follow their usual course of action. This can mean payment of life insurance, pensions, and distribution of assets in accordance with the deceased’s Will.
How Do I Apply for a Declaration of Presumption of Death?
Applications are made under the Presumption of Death Act 2013 and under the Act, anyone who has “sufficient interest” can apply. Although “sufficient interest” has not been defined, if you are the husband/wife, civil partner, child, sibling, or parent of the missing person, it is very likely that you would be able to apply.
You must give notice to certain people (e.g. family members who aren’t applying), and also in a public newspaper as part of the application, and it is possible that someone notified in this way might object. This is rare but can happen, so if you have any concerns that someone might challenge your application, let your solicitor know straight away and they will advise you about this.
To make an application it is wise to seek legal advice from a solicitor who has experience in dealing with missing person’s matters. They will guide you sympathetically through the process, ensuring that all of the relevant information that is needed is collected and appropriately presented to the Court.
What evidence do I need to apply for a Declaration of Presumption of Death?
You will need to provide the Court will as much information as possible about the missing person themselves, as well as the circumstances around them going missing.
Details of police reports, missing person posters, appeals in the news or on social media are essential to help the Court see that everything that can be done to try and find the person has already been done. If the person is believed to have died as a result of a specific natural disaster, a terrorist incident, or other disaster, then evidence of their presence at that place at the time of the event will also be required.
You will also need to provide details of their family, assets, any Power of Attorney or Guardianship Order that is in place (see our blog on Claudia’s Law here) and a copy of their Will if they have one.
This evidence can take some time to collect, so if you are planning to make an application using a solicitor, it makes sense to gather as much as you can before you instruct them to help you.
Using a solicitor with experience in dealing with missing people and the law surrounding missing persons will help greatly in making the process as swift and free of complications as possible.
The Declaration of Presumption of Death
Once the Court has considered your application, and all the supporting evidence, they will make a decision about whether it is appropriate to declare the missing person dead.
If they judge that it is appropriate, then they will issue a Declaration that the missing person is presumed to have died on a particular date. This date is usually either the day after the person was last known to be alive or the day that they are believed to have died if there is evidence to suggest a specific date applies.
What do I do next when I have the Declaration?
Obtaining this Declaration will allow you (or others) to obtain a Death Certificate and then to deal with your loved one’s estate in line with either their Will or the Intestacy Rules.
It will therefore allow you to sell any property or personal possessions of value, close bank accounts, liquidate investments and shares, and then distribute these in line with the relevant rules (those being the wishes as documented in the deceased’s Will or the Intestacy Rules).
It also allows their spouse or civil partner to re-marry or form a new civil partnership if they wish to do so.
Are you dealing with Probate after the death of a family member? Read our blog What is Probate and What Must You Do When Someone Dies? to learn what Probate is and what you as the executor must do.