Each year in the UK an estimated 96,000 adults are reported missing.  Most of them are thankfully found quickly, but a significant minority of individuals remain missing long term. A missing person exists in a legal limbo, where their dependants may have no access to funds, debts will be unpaid, and houses repossessed.

The Presumption of Death Act 2013 came into force just over 10 years ago, in October 2014. But a decade on, many families remain unclear about how the law can help them, if it is believed that their loved one has died.

There are 3 key things you need to think about;

Is a declaration of presumed death necessary?

If the missing person has assets (money or property) in England & Wales and the amount involved means that you can’t access them without a grant of probate, then it is likely that you will need a declaration of presumed death. An application needs to be made to the High Court.

Nowadays it can be difficult to confirm the value of assets (and debts)  as many people have online accounts;  without any paper statements or passwords, families may not have a full financial ‘snapshot’. But generally, it’s possible to access enough information to get a sense of whether a declaration is necessary.

The declaration can be obtained even if the missing person disappeared abroad, so long as they (or their spouse) were domiciled in England & Wales.

When can you apply for a declaration of presumed death after a person goes missing?

Many people believe that the common law presumption of death means that after 7 years have passed since the disappearance, a missing person is automatically presumed to have died. This is not true.  It is, in fact, possible at any point after a person’s disappearance to apply for a declaration of presumed death.  The court will make a declaration if it is satisfied on the ‘balance of probabilities’ (i.e the judge is more than 50% sure) that the missing person has died. The position is different after 7 years; the court must make a declaration if the missing person has not been ‘known to be alive’ for the past 7 years. An application must be made even if more than 7 years has passed.

Notice of the application must be served on certain family members and financial organisations, and it must be advertised in accordance with rules of the court. Evidence must be provided in support of the application by way of witness statements and supporting documents. Usually at least 2 court hearings will be required.

If someone else has applied for a declaration of presumed death or a variation order you may intervene in the proceedings if you are the missing person’s spouse, civil partner, parent, child or sibling.  Otherwise, you must ask the court for permission to intervene.

What is the outcome 

A declaration is conclusive proof of the date and time of the missing person’s presumed death.  It will dissolve any marriage or civil partnership and will have the same effect as regards property ownership as death.  The declaration becomes conclusive when it is final and no longer subject to appeal (21 days after the final hearing), after which the court will send a copy of the declaration to the Registrar General who will make an entry in the Register of presumed deaths.  A certified copy of the certificate of presumed death will be available from the Registrar on payment of a fee. It is the certificate that will be required to apply for a grant of probate (if the missing person made a will) or a grant of letters of administration (if they died intestate i.e. without having made a will).

If it later becomes clear that the declaration is incorrect – e.g. the missing person returns – an application can be made to the High Court for an order to vary or revoke the declaration.

More help for missing people and their families

The charity Missing People provides support and advice to missing people and their families as well as campaigning for change. For those missing abroad, the charity LBT Global can offer support.

Sarah Young – Director & Solicitor