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When someone has been missing for a long time it is sometimes necessary to make the difficult decision to have them declared deceased.
Applications for a declaration of presumed death are quite rare. Our expert team is one of very few in the country with experience of assisting clients in this area of the law and can help you if you need to consider this step.
What is a Declaration of Presumed Death?
A Declaration of Presumed Death is sought when someone has been missing for at least 7 years and there is no evidence to suggest that they are alive.
If a family member goes missing the emotional trauma and uncertainty for those left behind can be unbearable. It is often the case, however, that families are also left in a financial limbo since the lack of a death certificate means that they cannot access bank accounts, pension funds or insurance policies.
The Guardianship (Missing Persons) Act 2017 (which came into force on 31 July) allows family member to apply for legal status to look after and protect the property of missing persons.
The Declaration of Presumed Death Act 2013 enables family members to apply for a Certificate of Presumed Death once a sufficient waiting period has expired.
These two pieces of legislation can be used by families of missing persons to deal with the practicalities of having a relative go missing.
A Declaration of Presumed Death is a determination by the Court that a missing person is most likely to be deceased which sits in place of a Death Certificiate and allows the assets of the missing person to be dealt with.
You may also have heard of Claudia’s law, which is the guardianship a layperson can apply for themselves to allow them to deal with their missing or presumed dead relatives accounts: this is an area where we can advise.
Who can apply?
Family members can apply for a declaration of Presumed Death. Those family members should be either the spouse, civil partner, parent, child or sibling of the presumed deceased.
When can an application be made?
The Declaration of Presumed Death Act 2013 allows an application to be made once the person has been missing for 7 years.
How do I make an application?
The key to obtaining a declaration of Presumed Death is to get the right evidence in place before making the application to the Court. Our expert team can advise you on what evidence should be obtained and will put together the application and supporting evidence to enable the Court to reach a determination.
Notice must be served on other family members and requirements of the Act complied with.
Taking expert advice at an early stage is vital to ensuring that this difficult situation is not made harder by an application being rejected for lack of evidence.
What happens once I have the Declaration?
If the Court approves the application and grants the Declaration then a request is made for a Certificate of Presumed Death to be issued. This can be used in the same way as a Death Certificate and the process of administering the estate of the presumed deceased can begin as though they had just died.
If the missing person left a Will this will dictate what happens to their Estate. If they did not then the rules of Intestacy will apply.