When is the Right Time to Apply for a Declaration of Presumed Death?

Making the decision to apply for a Declaration of Presumed Death is a huge decision, and it’s one you’ll want to think very carefully about. Though there are legal guidelines about when you can apply, this doesn’t mean you have to follow a standard timeline. Deciding when to make this kind of application is an incredibly personal decision, and there will be many different factors and circumstances to consider in each case.

In this post, we’ve set out to give you the information you need to understand your options and to help you determine when might be the right time in your particular situation.

What is a Declaration of Presumed Death?

A Declaration of Presumed Death is a legal document that can be issued by a court in situations where it is believed that a missing person has died but no body has been found. When a Declaration of Presumed Death is granted, it can be used in place of a death certificate to allow those closest to the missing person to wind up their affairs and, in legal terms at least, move on with their own lives.

The application will need to be made by someone the court considers to have ‘sufficient interest’. Usually this will be the missing person’s spouse, civil partner, parent, child or sibling, though applications will be accepted from other individuals in certain circumstances.

In order for a Declaration of Presumed Death to be granted, the court must be sufficiently convinced that all evidence shows that it is highly unlikely that the missing person is still living.

When can an application be made?

Generally, an application for a Declaration of Presumed Death cannot be made until the missing person has been gone for seven years without any evidence that they are alive. This means that there must not have been any contact or verified sightings during this time, nor any electronic evidence of life, such as them accessing bank accounts or using credit cards.

However, it may be possible put in an application before seven years have elapsed if there is clear evidence to show that the missing person has died. In this context, clear evidence might include things such as:

• The missing person having left a suicide note.
• The person having been last seen at the site of a natural disaster.
• The person going missing during a boating incident.
• The person’s belongings having been found near a cliff edge or body of water.

Why it might be the right time?

For some, applying for a Declaration of Presumed Death is a helpful way to get some closure on a very difficult situation and take steps towards moving on.

Once the document is granted, it allows the loved ones of a missing person to take the same legal steps as they would if their family member had died in more usual circumstances, including holding a funeral and administering their estate. If someone has been managing the missing person’s affairs on their behalf, this will allow them to step down. It will also enable any property or money that the missing person left behind to be distributed to beneficiaries.

When a Declaration of Presumed Death is granted, it automatically dissolves the missing person’s marriage or civil partnership, which means their surviving spouse or civil partner would be able to remarry or enter a new civil partnership, should they choose to do so.

Why it might not be the right time?

Applying for a Declaration of Presumed Death means accepting that a missing person has died, which some people may not feel ready to do. There may come a time when this does feel like the right thing to do, there may not. No one should be pressured into applying for a Declaration of Presumed Death if they believe there is still hope that their loved one is alive and well.

How to begin the process?

If you’re considering whether to make an application for a Declaration of Presumed Death, it can be helpful to speak to a solicitor who specialises in missing persons law. An experienced solicitor will be able to explain the process, help you consider all the evidence and prepare you for what might be ahead.

How Roche Legal can help

We are reassuring experts who can help you with a wide range of legal matters. Please get in touch if you need legal support with:

• Trusts and Estate Planning
• Wills
• Probate and Estate Administration
• Contested Probate and Will Disputes
• Powers of Attorney
• Court of Protection matters
• Presumption of Death Applications
• Missing Persons Guardianship Applications