What is the Presumption of Death Act 2013?
Released On 3rd Dec 2021
If a person is missing and presumed to be dead but there is no body, then several difficulties can arise.
Largely, these relate to what happens with that person's assets and affairs. Normal probate or estate administration procedures cannot be followed without the production of a death certificate.
What is the Presumption of Death Act 2013?
To try and address these issues, a new piece of legislation was passed. This is called the Presumption of Death Act 2013.
When it was introduced, the Act was very much welcomed. It addressed an important, albeit rare, issue that could be extremely problematic.
The Act allows certain people to make an application to court for an order that essentially has the same effect as a death certificate. In this way, it then allows for the missing person's estate to be dealt with and administered.
When can an application be made to the court for a declaration of presumed death?
Where a person is thought to have died and has been missing for a period of at least seven years, an application can be made for a declaration that they are presumed to be dead.
If such a declaration is made, the normal probate and estate administration procedures can then be followed.
Another piece of legislation has also been passed, called the Guardianship (Missing Persons) Act 2017. In essence, this allows an order to be sought if a person has been missing for at least ninety days, allowing their estate to be dealt with. That order can be renewed for a period of up to four years.
If the person remains missing for the full period of at least seven years, then a further application can be made for a declaration that they are presumed to be dead, thereby allowing the estate to be distributed.
Who is allowed to deal with the estate of a missing person who is presumed to be dead?
The application can be made by anyone.
However, ordinarily, such an application would be made by the missing person's spouse, civil partner, parent, child, or sibling.
Alternatively, only someone who had an interest in the missing person’s estate would be able to make the application, such as the executor of a will, or a beneficiary under the rules of intestacy.
What evidence do I need to apply for a declaration of presumed death?
The sort of evidence needed to satisfy the court to the extent that they would be willing to make the declaration will vary from case to case.
However, it will likely include:
- Witness statements from relevant persons, explaining the circumstances in which the person went missing, and
- Evidence of the steps taken to try and locate or find the missing person, including notices in the media, tracing agents, involving the local police, contacting the banks regarding activity on the person's accounts, etc.
