Question: my father has been missing for 5 years.
We presume he is dead. Can we deal with his assets?
Answer: Presumption of death
In England and Wales an application may be made to the relevant Probate Registrar for an order giving leave to swear to the death of the presumed deceased having occurred on or since a specified date. Those asking for the order must convince the court the presumed deceased has in fact died but his body has never been found.
In general, the person should have been missing for over 7 years, though if there is stronger evidence of death, a shorter period may be considered.
There must be evidence to show the presumed deceased has not just “done a runner” to avoid creditors, wife or partner or to gain from insurance. Remember the “canoe man” who was presumed dead recently. This is an order by the Court giving leave to administer the presumed deceased’s estate but not a declaration of death.
After 7 years of not being found, an application may be made to a Chancery Court for a declaration of death. Here the evidence must be stronger to convince the court to make the declaration.
The rules in Scotland and Northern Ireland are not the same, but they are not our area of expertise, though we can always put you in touch with the right people.
The latest Act is the Presumption of Death Act 2013.