declaration of presumed death application

Social Security

Program operations manual system (poms).

TN 33 (08-23)

GN 00304.050 Presumption of Death of a Missing Person

A.  policy for presumption of death of a missing person.

When circumstantial evidence does not establish the fact of death as the inevitable conclusion, consider presumption of death after 7 years have elapsed since the disappearance.

Take a claim immediately if an applicant has not already filed one. Take a claim prior to the end of the seven-year period, even if we will disallow a claim because a presumption of death has not yet been made. This will protect benefit rights and can be reopened at a later date based on new evidence. Rules on reopening these prior claims are in GN 04020.040 .

1.  Requirements for presumption

A presumption of death arises when the evidence establishes that the missing person has been absent from their residence and has not been heard from for 7 years.

The presumption arises without regard to the reason for the absence.

2.  Requirements for rebuttal of presumption

Once the presumption arises, the worker can rebut only if SSA proves the individual is alive or provides an explanation to account for the individual's absence in a manner consistent with continued life rather than death.

The fact that there was financial or marital difficulty or mental instability prior to the disappearance is not sufficient by itself to rebut the presumption.

Deny the claim if, in the judgment of the adjudicator, the evidence rebuts the presumption of death.

3.  Examples of situations that rebut the presumption of death

Evidence in a claim for surviving child's benefits showed that the worker had wages posted to their earnings record in the year following the disappearance. The worker established that the wages belonged to them and were for work done after their “disappearance.'' In this situation, the worker rebutted the presumption of death by evidence (wages belonging to the worker) that the person is still alive after the disappearance.

Evidence shows that the worker left the family home shortly after a woman, whom they had been seeing, also disappeared, and that the worker phoned their spouse several days after the disappearance to state they intended to begin a new life in California. In this situation, the worker rebutted the presumption of death because the evidence explains the worker's absence in a manner consistent with continued life.

4.  Example of a situation that does not rebut the presumption of death

Evidence shows that a person has been missing and not heard from for over 7 years. We did not post any earnings to their record during that time. The spouse files a survivor claim. They state that they were having marital and financial problems at the time of the disappearance. The existence of those problems does not rebut the presumption of death. Therefore, in this case, death is presumed and we might allow a survivors and lump sum death payment claim if the applicant met all other factors of entitlement.

B.  Procedure for obtaining evidence for presumption of death of a missing person

Obtain evidence to establish whether the missing person is alive or that accounts for their absence in a manner consistent with continued life rather than death. For additional types of evidence that can be secured and considered in the presumption of death determination, follow the procedure in GN 00304.025B.

Take the following actions to obtain evidence to establish presumption of death:

Search for an active earnings record for the missing person.

Determine whether the missing person has applied for a Social Security number (SSN), or has had wages or self-employment income (SEI) reported after their disappearance.

Develop fully to establish whether wages or SEI posted after their disappearance were the missing person's or if they were for work done prior to the disappearance.

Attempt to contact the missing person .

Try to contact the missing person by contacting the most recent employer listed on the Detail Earnings Query (DEQY). To request and read the DEQY follow the instruction in MSOM QUERIES 003.005.

Try to contact the missing person at the address shown on Form W-2 by obtaining a microprint copy of Form W-2 (Wage and Tax Statement) as instructed in RM 03870.030.

Try to contact the missing person at the address shown on the SS-5 (Application for a Social Security Card), (if the missing person applied for an SSN after their disappearance) by obtaining a microprint of the SS-5.

If the missing person is found and contacted, there can be no presumption of death. After the missing person is found alive, follow the instructions in GN 00304.050B.8. , in this section.

Complete an SSA-723-F4 (Statement Regarding the Inferred Death of an Individual by Reason of Continued and Unexplained Absence).

Document statements on form SSA-723-F4 from at least three people who knew the missing person and the facts surrounding the disappearance.

NOTE: While three people who knew the missing person should be available in the vast majority of situations, there may be instances where only one or two people are available to complete form SSA-723-F4. If you cannot find three people, who knew the missing person and the missing person is presumed to be dead, include an explanation in the special determination of actions taken to try to locate three people who knew the missing person.

Include the spouse and claimant and any close family members with whom the missing person would be likely to communicate.

Obtain a physical description of the missing person:

Ask the claimant or spouse to provide a physical description of the missing person.

Ask the claimant or spouse for the most recent photograph of the missing person available. Show this photograph to former employers and other contacts to determine whether the number holder (NH) is actually deceased.

Obtain a finding of the missing person's death by a court:.

Get the decree or a certified copy of any declaration of death by a court of competent jurisdiction (i.e. a court with the power to decide a case or issue a decree such as a state court's finding that an individual is presumed dead) and a statement of the facts used in the finding.

IMPORTANT: Give the court's declaration of death based on a presumption great weight depending on the supporting evidence, but is not controlling. The number holder may not be presumed dead for purposes of Social Security until they have been missing for 7 years and the presumption of death is not rebutted as instructed in GN 00304.050A.1. , in this section.

Determine a date of presumed death.

If you are unable to establish that the missing person is alive or obtain evidence that accounts for their absence in a manner consistent with continued life rather than death, determine that the missing person is dead. You should:

Establish the date of presumed death on or near the date of disappearance. When material, establish the date of death at or near the date of disappearance if the facts of the case fit into any of the following situations:

The missing person encountered some specific peril at or about the time of disappearance.

The missing person was suicidal.

The missing person was in such a poor state of health and was so destitute that survival was improbable for any length of time after the disappearance.

The missing person was attentive to domestic duties, had a home to which they were attached, and suddenly, without explanation, disappeared.

Establish the date of presumed death on the last day of the 7-year period:

If any situation exists other than those listed in GN 00304.050B.6.a. in this section, establish the date of death as the last day of the 7-year period beginning with the date of disappearance. For example, if John were missing as of August 07, 1990, we would establish their date of death as August 07, 1997.

If only the fact of death is material, presume the date of death to be the last day of the 7-year period.

NOTE:  If facts permit, you can establish a date of presumed death after the 7-year period but in no case earlier than the last day of the 7-year period beginning with the date of disappearance.

Take the following actions if the missing person is found alive:

Disallow the claim.

Tell the missing person that an applicant filed a claim for benefits and that proper disposition of the claim requires that we disclose their existence.

Ask the missing person to submit a signed and dated statement containing identifying information.

Ask the missing person for permission to disclose their whereabouts with the assurance this will be done only in exceptional circumstances.

NOTE: For instructions on disclosing information about missing persons, refer to GN 03315.020 .

Prepare a special determination

Prepare a special determination to support the agency's conclusions with regard to the disappearance of the missing person.

Document the decision on report of contact (RPOC) on the modernized claims system (MCS) screens or on form SSA-553 (Special Determination). Send SSA-553 to the payment center (PC) paperless fax number for filing.

When using evidentiary documents in a special determination to support the presumption of death determination, follow instructions in GN 01010.360 . For electronic evidence documentation and retention when proof of death is involved, refer to instructions in GN 00301.286C.4.

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Get a declaration of presumed death

You can make a claim for a ‘declaration of presumed death’ from the High Court if someone you know in England and Wales has been missing for:

• 7 years or more
• less than 7 years and you think they’ve died, for example they went missing during a natural disaster

A missing person is not automatically presumed dead.

You must make a claim for a declaration of presumed death if you want to do certain things, for example deal with their estate.

Who can make a claim

You can make a claim if you’re the missing person’s:

• spouse or civil partner

If none of these apply, you’ll need to prove to the court that you have enough of a connection to the missing person (‘sufficient interest’), for example you’re a distant relative and you have a birth certificate to prove it.

What else must be true to make a claim

To make a claim one or more of the following must also apply:

• you’re the missing person’s spouse or civil partner and you treat England or Wales as your permanent home (‘domicile’) on the date you make the claim
• you’re the missing person’s spouse or civil partner and you’ve been living in England or Wales for the whole year before the date you make the claim
• the missing person treated England or Wales as their permanent home (‘domicile’) on the date they were last known to be alive
• the missing person was living in England or Wales for the whole year before the date they were last known to be alive

There are different rules in Scotland and rules in Northern Ireland .

It costs £528 to get a declaration of presumed death. You may be able to get help paying court fees .

Make a claim for a declaration of presumed death

You can make a claim yourself or use a legal representative.

Make your claim .

Advertise your claim in a newspaper .

Attend a hearing .

Part of What to do when someone dies: step by step

Step 1 : register the death.

• Register the death within 5 days

Check what to do if:

• the death has been reported to a coroner
• the death happened outside the UK
• you're registering a stillbirth
• You are currently viewing: someone is missing and you think they're dead

Step 2 : Tell government about the death

The Tell Us Once service allows you to inform all the relevant government departments when someone dies.

• Use the Tell Us Once service to tell government
• If you cannot use Tell Us Once, tell government yourself

You'll also need to tell banks, utility companies, and landlords or housing associations yourself.

Step 3 : Arrange the funeral

• Arrange the funeral
• Get help paying for a funeral
• Get help paying for a child's funeral

Step 4 : Check if you can get bereavement benefits

You might be eligible for financial help.

Check if you can get:

• Bereavement Support Payment if your partner has died
• Statutory Parental Bereavement Pay and Leave if your child has died or you’ve had a stillbirth
• Guardian's Allowance if you're bringing up a child whose parents have died

and Deal with your own benefits, pension and taxes

Your tax, benefit claims and pension might change depending on your relationship with the person who died.

• Manage your tax, pensions and benefits if your partner has died
• Check how benefits are affected if a child dies

and Find bereavement support and services

Get help with managing grief and the things you need to do when someone dies.

• Find bereavement help and support
• Find bereavement services from your local council

and Check if you need to apply to stay in the UK

If your right to live in the UK depends on your relationship with someone who died you might need to apply for a new visa.

Check the rules if:

• you're in the UK as the partner of a British Citizen or someone with indefinite leave to remain
• your partner who died served as a member of HM Forces
• Contact UKVI to check the rules for other visas

Step 5 : Value the estate and check if you need to pay Inheritance Tax

To find out if there’s Inheritance Tax to pay, you need to estimate the value of the property, money and possessions (the ‘estate’) of the person who died.

• Estimate the value of the estate to find out if you need to pay Inheritance Tax
• Find out how to report the value of the estate
• Pay Inheritance Tax if it’s due

Step 6 : Apply for probate

You might need to apply for probate before you can deal with the property, money and possessions (the ‘estate’) of the person who died.

• Check if you need to apply for probate
• Apply for probate

Step 7 : Deal with the estate

Pay any debts or taxes owed by the person who's died. You can then distribute the estate as set out in the will or the law.

• Deal with the estate
• Update property records

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Presumption of Death in England and Wales

What is a presumption of death certificate, what is the effect of a declaration of presumed death, what is the seven-year rule and how does it work, which court issues the declaration of presumption of death, who can apply to the high court, what should i do about the missing person’s mortgage, insurance, and finances, do i need a legal advice or a solicitor to help make an application, where can i find a solicitor that will know about this and be good value for money, what are the potential costs involved, if i can’t afford a solicitor, what do i do, the process, what if my relative is found to be alive, an application has been made i do not agree with, who can support me through this time, download a copy of the guidance.

Only a small fraction of people who go missing remain so for many years. Yet those who are not found often leave behind family members that may eventually need, or want, to resolve their affairs, such as finances or property if they believe their loved one has died.

In England and Wales, you can apply to the court for a missing person to be declared presumed dead. This declaration will enable any property, money and other possessions of the missing person to be administered and will dissolve the missing person’s marriage or civil partnership. An application to the High Court (i) is made under the Presumption of Death Act 2013, which came into force on 1 October 2014.

Once someone has successfully received a Declaration of Presumed Death, they can then: Apply to the General Registry Office for a Certificate of Presumed Death; and Apply for probate.

The declaration automatically ends any marriage or civil partnership. A Certificate of Presumed Death can be used as evidence of death in the same way as a Death Certificate.

The declaration of presumed death is legal proof of the missing person’s status as being believed to have died, along with a date and time of the presumed death. The declaration will end any marriage or civil partnership. As mentioned above, it will enable the family to deal with any property, money or assets that the missing person had through the normal probate process.

The court can also deal with any questions around the missing person’s property, assets and money that those close to the missing person may have an interest in or acquire as a result of a declaration. In addition the court can decide that the value of an asset cannot be recovered following any later change in the declaration (for example, if it is found that the missing person is alive, or if the terms of the declaration are challenged).

The declaration becomes final once the appeal window that follows the declaration has closed, and subject to the outcome of any appeal made. An appeal may be brought within 21 days of the declaration unless the court has specified a different length of time when making the declaration. Note that one can apply for a variation order if a missing person returns (see below), but this will not necessarily lead to all of their belongings and affairs being returned to them.

A Declaration of Presumed Death will be granted if the court is satisfied either: that the missing person has died; or has not been known to be alive for at least seven years.

If there is clear evidence that the person has died, a Presumption of Death application can be made immediately. What matters is the strength of the evidence, not the period of time. In general, though, the shorter the period of time since the person has been missing, the stronger the evidence will have to be. Suicide notes would be seen as strong evidence.

If there is insufficient evidence the person has died, you will have to show that the person has not been known to be alive for at least seven years.

Further information on the seven year period can be found here.

Presumptions of Death applications are dealt with by the High Court and they issue Declarations of Presumption of Death. Certificates of Presumed Death are then issued by the General Registry Office on application following a Declaration of Presumption of Death, which will allow the affairs of the person to be administered in the same way as a Death Certificate allows.

You can apply to the High Court if the missing person was domiciled  in England or Wales, or was living in England or Wales for least one year before they went missing, or if you are the spouse or civil partner of the missing person and are domiciled in England or Wales, or have been living there for at least one year before making the application.

Whilst anyone can apply for a declaration of presumed death for a missing person, the court must refuse to hear an application if it considers that the applicant does not have ‘sufficient interest’ in the outcome of it, and if it is made by a person other than the missing person’s spouse, civil partner, parent, child or sibling.

It is generally better to contact mortgage companies to inform them about the missing person and your circumstances rather than ignore their letters. This can help avoid repossession proceedings. It is always a good idea to keep financial and legal institutions informed about any changes in the situation and ask them for clarification of the situation from their perspective.

It is recommended that you let the life insurance company of the missing person know about your application as soon as possible and that you update them on its progress.

You will probably need the help of a solicitor to prepare an application, along with the evidence needed to support the application. If possible, it might be helpful to try and find a solicitor who has experience of dealing with presumption of death, or similar applications and has the expertise to deal with your case. A barrister is not required for a Presumption of Death application.

When you ring a solicitor to discuss working on your case, it might be worth asking if they have worked on presumption of death cases before. If you would like help finding such a solicitor, the Law Society of England and Wales may be able to assist you. 

You can also contact our helpline or policy team to be directed to solicitors we know have worked on such cases, although we cannot make specific recommendations.

As of 2022, the application will cost approximately £730, not including solicitor’s fees, if you choose to employ one. You do not necessarily need to employ a solicitor but it may make the process simpler if you do.

Solicitor’s fees will vary from case to case. An average case can cost £8,000, but this will depend on the circumstances – some simpler cases could cost less than £5,000, but more complicated cases could cost a lot more.

The £680 is composed of a court fee of £530 and approximately £200 to advertise the application in the local newspaper, both of which are requirements for making the application.

If you wish to use a solicitor to help you compose the application and advise you on gathering the relevant evidence, it may be useful to discuss with the solicitor how much the application is likely to cost in advance of starting the process. You should get this in writing along with the basis on which you will be charged – hourly, etc. This should help you to understand the full cost of making an application.

Once one has acquired the presumption of death declaration, there will be other fees associated with gaining permission to administer the person’s affairs and distributing their assets. These can vary, depending on the complexity of the case.

Some solicitors will ask for payment upfront. Others may be willing to delay payment until after the case is complete and you have access to the assets in the estate. Alternatively, they may be willing to work on the case and be paid only if the application is successful (no-win-no-fee). If a solicitor acts on a no-win-no-fee basis they may charge you a ‘success fee’ in addition to their normal costs. Not all solicitors will offer these options and it is worth explaining your situation to a solicitor to see whether these options are available. For help finding an experienced solicitor, you can contact the Law Society of England and Wales , who may be able to assist you.

Are the assets of the missing person passed on straight after the Declaration of Presumed Death is made? If the person’s assets total less than £5,000, banks and some other organisations might not require any further steps before they pass on the assets. In other cases, however, you must then apply for ‘probate’ before you can administer the missing person’s affairs and distribute any assets:

• If the missing person has a will: one must apply for a grant of probate. The executor of the will is usually indicated in the will;
• If the missing person does not have a will: one must apply for a grant of letters of administration. In this case, then the administrator must be the missing person’s closest living relative.

How long does the whole process take? The process of acquiring the presumption of death declaration takes from four to six months. The length of each stage can vary. This doesn’t include the time required for gaining permission to administer the missing person’s affairs and distribute any assets.

Step 1: Gather the relevant evidence and send in a claim form

What kind of evidence is needed to submit to the court and who provides this? If you decide to make an application, you will need to gather evidence that demonstrates the likelihood that your missing relative has died.

If you are making the application then you will be responsible for providing the relevant evidence. The court will require sight of the missing person’s bank statements, in particular from the date of disappearance, so that they can investigate any suspicious transactions. It is therefore very important not to destroy bank statements. Hold onto any credit card bills that have been paid off by the family. Whilst it may be helpful to get legal advice as to what other kind of evidence is relevant in your circumstances, this will include evidence that either suggests they have died, or shows that they have not been known to be alive for at least seven years.

The following are some examples of the kinds of evidence that might be helpful in your application:

• Written statements from witnesses who can assist the Court with relevant information about the missing person and/or their disappearance; that might include an employer or colleague, close friend and/or relatives who would have expected to have been contacted by the missing person. These should be signed and dated by the person that has written the statement and include the name of the court and the case. The paragraphs should be numbered. (At least one is required, but more might strengthen the case.)
• Evidence of the search for your relative. This can include statements from the police and other search agencies that were involved, such as Missing People. If the person has gone missing abroad, reports from foreign police forces will be helpful. These must be translated by a court-approved translator.
• Newspaper clippings about searches for the missing person or about them going missing.
• Information on the missing person’s current and savings accounts.
• Information on the missing person’s life insurance.

Step 2: Send in a claim form, inform family members, and advertise the application in the local newspapers

Will I know if an application for a declaration has been made regarding my missing relative by another person? When an application for presumed death is made for a missing person, the applicant must notify the missing person’s spouse or civil partner and any parent, child or sibling they might have (or else the nearest relative, if there is no one from this list), and any ‘other person’ that might have an interest. Here, the ‘other person’ can include companies, such as insurers who may hold a missing person’s life insurance policy. This notification must be made within seven days of the application being issued by the Court.

In addition, within these seven days the applicant must also ensure that notice of the application is put in one or more newspapers which circulate in the area where the missing person was last known to live. You will have to provide a copy of the newspaper advertisement to the court at least five days before the hearing. The advertisement must set out the details of the claim. As such, if you are the close relative of a missing person, it is likely that you would be aware of any application being made to declare them as presumed dead.

If you are the spouse, civil partner, parent, child or sibling of the missing person, you have a right to intervene in proceedings. This will happen at the first hearing and will involve presenting evidence and your understanding of events. Other people may intervene also, but only with the court’s permission.

Step 3: Hearings and final decision

Will the next-of-kin have to go to court to give evidence? If the claimant (applicant) does not have a solicitor, then attendance will be required. If the claimant has a solicitor, most judges will excuse attendance of the claimant. However, the judge might ask the claimant to attend, so it is best to get the solicitor to ask the judge whether this will be necessary. If the judge asks the claimant to attend then attendance is compulsory.

What’s it like, if I do go? The hearing will involve the claimant (and their solicitor, if they have one) in the room with a district judge looking through the paperwork. They may ask some questions. The court will look at the evidence presented to it and will grant a declaration of presumed death if it is satisfied that the missing person is more likely than not to have died (i.e. on the balance of probabilities, which means 51% or more likely). If the application is opposed it will be listed for what’s called a ‘contested hearing’ and then it might be in front of a more senior judge, called a circuit judge at another hearing.

If the court grants a declaration, it will state the date and time of the presumed death. Where it is not certain when the missing person is likely to have died, the court will find that they died at the end of the period of time in which the missing person’s fate was uncertain (for example, if it is likely the person died between 1 March and 7 April 2005, the court would find they died on 7 April 2005). This is also the case if you are applying on the basis that the person has not been known to have been alive for a period of seven years, i.e. the court will find that the missing person died at the end of the seven year period. The date of presumed death may be relevant, for example, in the context of inheritances.

Once you have successfully received a Declaration of Presumed Death, you can then:

• Apply to the General Registry Office for a Certificate of Presumed Death; and
• Apply for probate, if required.

What happens if the declaration is factually or legally wrong? When the court proceedings have finished, there are 21 days in which you can appeal the judgement (unless the court has specified a different time period). The objection can be on the grounds of a mistake in fact or law.

If the judge has already taken into account some facts or arguments by someone objecting to the case, it is very unlikely that an appeal would be made or be successful.

There may also be circumstances in which someone may wish to apply to vary or revoke the declaration of presumed death, for example if the missing person returns, alive, or if evidence comes to light which shows that the missing person was alive at a time later than that declared as the time of death in the original declaration. If so, an application can be made to the High Court for a ‘variation order’.

A variation order is a court order that may vary (that is, change) or cancel a declaration of presumed death following an application by any person it sees as having sufficient interest. A variation order will not reinstate any marriage or civil partnership, and does not itself affect the ownership of property obtained for value and in good faith as a result of the declaration. The court can, for example, order property to be transferred from a person who has inherited it under the will of the missing person, either back to the missing person (if found to be alive), or to another person who should have inherited it, but did not because the date on which the missing person was declared presumed dead was incorrect. However, where the property has been sold to a buyer, who has purchased it in good faith, the court order will not affect the buyer’s ownership of the property. A variation order will not affect income that has accrued from the date the missing person was declared presumed dead until the date of the variation order in relation to property acquired as a result of the declaration.

The court will not generally include any provisions relating to the property of a missing person in a variation order if the application for a variation order is made more than five years after the date on which the original declaration of presumed death was made, unless there are ‘exceptional circumstances.’

The court, when making the original declaration of presumed death, may order the trustee of a trust affected by a declaration to take out an insurance policy against the possibility of a variation order being made. Money held under the trust can be used to pay the insurance premiums.

Where an insurance company is to make a pay out as a result of a declaration (for example, under a life insurance policy), it can require the beneficiary to take out insurance against the possibility of a future variation order being made as a result of the missing person being found to be alive.

If an insurance company has paid out a capital sum as a result of a declaration of presumed death, and a variation order is sought, the court will follow the principle that the insurer is entitled to repayment of that capital sum (if justified by the facts which give rise to the variation order). This means there will be a presumption that the capital sum must be repaid, but that the court will have some flexibility in making that decision.

There is also an opportunity to appeal against the decision of the court to make a variation order. Appeals must be brought within 21 days of the decision (or within the period of time ordered by the court if that is different). As above, they must be on the grounds of a factual or legal mistake.

The police think my loved one took their own life, but I don’t want them to be declared dead. What can I do? In the United Kingdom, the police cannot apply for a Declaration of Presumption of Death, only the family can. Also, note that there is no requirement on a family to apply for a Declaration of Presumed Death even if they think their loved one may have died.

Another relative of the missing person is instigating presumption of death proceedings, but I don’t want them to. What can I do? If you are the spouse, civil partner, parent, child or sibling of the missing person, you have a right to intervene in proceedings. This will happen at the first hearing. Other people may intervene also, but only with the court’s permission.

If the proceedings have already finished, you can appeal the decision within 21-days (or longer if the judge specifies) of the decision date. Alternatively, you can apply for a variation order. See ‘What if my relative is found to be alive or there’s new evidence?’ above for more.

We understand that administering a missing relative’s affairs can be daunting and upsetting. Our support team is available around the clock if you would like to talk about how you are feeling throughout this process, or require practical advice on managing and resolving a loved one’s affairs.

There is a lot of information on this page, if you would like to download a copy as a PDF please click here .

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Privacy Overview

• Procedure rules
• Rules & Practice Directions
• PART 57 - PROBATE, INHERITANCE, PRESUMPTION OF DEATH AND GUARDIANSHIP OF MISSING PERSONS
• PRACTICE DIRECTION 57B – PROCEEDINGS UNDER THE PRESUMPTION OF DEATH ACT 2013

This Practice Direction supplements CPR Part 57

Contents of this practice direction

Procedure for claims – Rule 57.19

Claim for declaration of presumed death – claim form.

1.1   The claim form for a claim for a declaration of presumed death must include or be accompanied by the following (where known)—

(1) Information about the claimant

(a) the claimant’s name and address;

(b) the relationship of the claimant to the missing person; and

(c) if the claimant is not the missing person’s spouse, civil partner, parent, child or sibling, details of the claimant’s interest in the determination of the application;

(2) Information about the missing person

(a) the missing person’s name and surname, and any other names by which the missing person is or has formerly been known;

(b) the missing person’s gender;

(c) the missing person’s maiden surname (if any);

(d) the missing person’s date and place of birth;

(e) the occupation of the missing person;

(f) the occupation, name and surname of —

(i) the missing person’s spouse or civil partner (or late spouse or civil partner if the marriage or civil partnership ended on death);

(ii) where the missing person was under 16 years of age, the missing person’s parents;

(g) the missing person’s National Insurance number;

(h) the date on which missing person is thought to have died, or on which the missing person was last known have been alive;

(i) on which of the grounds in section 1(4) of the 2013 Act the court is considered to have jurisdiction to entertain the claim;

(j) the usual or last known address of the missing person; and

(k) the name and address of the spouse or civil partner, parents, children or siblings of the missing person (if any, and if not the claimant);

(3) Information about steps taken to trace the missing person

(a) details of any enquiries made or other steps taken to trace the missing person or confirm when the missing person was last known to be alive; and

(b) details of the results of such enquiries or other steps;

(4) Information about the missing person’s property

(a) an estimate of the total value of the assets of the missing person;

(b) details of property owned by the missing person; and

(c) details of the interest of any other person in the missing person’s property which it is sought to have determined by the court; and

(5) Information about advertisement and recipients of notice of the claim

(a) details of the newspaper in which the claimant proposes to advertise the claim; and

(b) details of the persons to whom the claimant is giving notice of the claim and, where notice is being given to a person under rule 57.20(1)(f), the nature of that person’s interest in the claim.

Claim for variation order

1.2   The claim form for a variation order must include or be accompanied by the following (where known)—

(c) details of the claimant’s interest in the determination of the application;

(2) Information about previous claim and missing person’s property

(a) details of the declaration of presumed death or (as the case may be) previous variation order which it is sought to have varied or revoked;

(b) details of the circumstances which are claimed to justify a variation order, and evidence of the enquiries made and other steps taken to verify them and their outcomes; and

(c) details of any interest in property acquired as a result of the declaration of presumed death or (as the case may be) previous variation order which it is sought to have varied or revoked; and

(3) Information about advertisement and recipients of notice of the claim

(b) details of the persons to whom the claimant is giving notice of the claim and, where notice is being given to a person under rule 57.20(2)(g), the nature of that person’s interest in the claim.

Issue of claim form without serving notice on any person

1.3   For the purposes of rule 8.2A as modified by rule 57.19, an application for permission to issue a claim form, whether the claim is for a declaration or presumed death or for a variation order, may be made only where the claimant believes there to be no person within paragraph (1)(a) to (f) or paragraph (2)(a) to (g) of rule 57.20. The application must explain why the claimant believes that there is no such person.

Case management – first directions hearing

1.4   A claim (whether for a declaration of presumed death or for a variation order) must be listed for case management directions either—

(a) more than 28 days (but where practicable no more than 56 days) after issue; or

(b) where the claim form has been served outside the jurisdiction, more than 7 days (but where practicable no more than 35 days) after the period forfiling provided for by rule 57.19(7), to allow for time for those served with notice of the claim or who respond to the advertisement of the claim to file notice of intention to intervene or an application for permission to intervene as the case may be.

1.5   The court must notify all those who have filed notice of intention to intervene or an application for permission to intervene of the date of the directions hearing.

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Advertisement of claim – Rule 57.21

2.1   The advertisement of the claim required by section 9(2) of the 2013 Act and rule 57.21(1)(a) must be in the form set out below, or contain the equivalent information about the claim and the possibility of applying, and where and by when to apply, to the Court—

IN THE HIGH COURT OF JUSTICE [CHANCERY] [FAMILY] DIVISION

Case Number ......

IN THE MATTER OF AN APPLICATION FOR A DECLARATION OF THE PRESUMED DEATH OF (INSERT NAME)

A claim has been issued in the High Court of Justice, for a [declaration] [variation of a declaration] that (insert name), whose last known address was (insert address) is presumed to be dead. Any person having an interest may apply to the Court to intervene in the matter.

If you wish to apply to the Court, you should do so at [Court address] as soon as possible, and if possible within 21 days of the date of this notice. Delay may harm your prospects of being able to intervene.

[If the claimant is legally represented]

Claimant’s Legal Representative

[If the claimant is not legally represented]

(Claimant’s address for service)

Interveners – Rule 57.22

3.1   The Attorney General, or a person who is entitled to intervene in the proceedings by virtue of section 11(1) (the missing person’s spouse, civil partner, parent, child or sibling) should notify the intention to intervene as early as possible by filing, and serving on the claimant, notice in writing, specifying—

(a) the intervener’s name and address;

(b) the intervener’s relationship to the missing person (where the intervener is not the Attorney General);

(c) the reasons for intervening; and

(d) particulars of any determination or order sought under section 11(4)(b) or (c) of the 2013 Act.

3.2   An application under rule 57.22(2) for permission to intervene must be served on the claimant and must specify—

(a) the applicant’s relationship to the missing person or other interest in the proceedings;

(b) the reasons for seeking to intervene; and

(c) particulars of any determination or order sought under section 11(4)(b) or (c) of the 2013 Act.

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Personal Law Services > Contentious Probate – Challenging or Contesting a Will or Trust, and Claims Against Estates > Declarations of Presumed Death

Declarations of Presumed Death

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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.

Missing or Presumed Dead

More information about Guardianship (Missing Persons) Act 2017

Our Declarations of Presumed Death Experts

Nadia Halliday

Associate & Head of Contentious Probate

Neelam Maher

Vicki Pearce

Shakira Khan

Altamish Isaani

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Declarations of Presumed Death - What are they, and when are they used?

If a loved one has been missing for a long time, then there may come a time when you wish to settle their affairs and deal with their property. This requires making the incredibly hard decision of having them declared as presumed to be dead. This is done by applying for a Declaration of Presumed Death.

What is a Declaration of Presumed Death?

A Declaration of Presumed Death is a certificate from the Court that ultimately allows you to apply for Probate. This will enable you to legally deal with the affairs and property of the missing person. The Declaration of Presumed Death certificate acts much in the same way as a Death Certificate.

The certificate, as the name suggests, presumes that the missing person has died - issuing a death time and date. 

When is a Declaration of Presumed Death needed?

As mentioned, a Declaration of Presumed Death is required when a person has been missing for a long time. Under the Presumption of Death Act 2013, the period is seven years after the person has gone missing. However, it can be used in a period less than this if the person is thought to have died and gone missing. For example, if there is an accident or a natural disaster and the person has gone missing. 

Anytime after this period is appropriate to apply for a Declaration of Presumed Death.

How do I apply for a Declaration of Presumed Death?

In England and Wales, you can apply to the High Court for a Declaration of Presumed Death. There are a few things to note about applying for a Declaration of Presumed Death, including who can apply for one, what other conditions must be met, what you need to do when applying, and how much it costs.

Who can apply for a Declaration of Presumed Death?

The following relations of a missing person can apply for a Declaration of Presumed Death:

• spouse/ civil partner,

It is also possible for a person who is none of the above to apply for a Declaration of Presumed Death, but only if they can prove they have ‘Sufficient Interest’ to do so. This requires proving that you have a real connection to the missing person. 

What other conditions must be met?

Other conditions apply as well before the High Court is able to consider your application. One (or more) of the following must be satisfied for the High Court to begin:

• you are the spouse/ civil partner of the missing person and are ‘domiciled’ in England or Wales. This means that you have your permanent home in England or Wales,
• you are the spouse/ civil partner of the missing person and have been living in England or Wales for a full year before making the application, 
• the missing person was domiciled in England or Wales before they went missing, or
• the missing person was living in England or Wales for an entire year before they went missing.

The application process

You must fill in the application form to begin the process. This must be sent to the Court with your evidence and the appropriate fee. You must also send this form to the missing person’s family (spouse/ civil partner, children, siblings, parents, or closest living relative) and any other person/ organisation with interest - such as insurance companies. 

After the Court returns your form, you must place an advertisement in the local newspaper of the last known place the missing person lived for seven days. 

Within around two months, you will have a hearing at the High Court. You should bring along all evidence at this stage. It is possible that someone may challenge your application if they have reason to believe the missing person is still alive. At this hearing, the Court may inquire into the matter more by asking you questions or looking at your documents. They may or may not grant your Declaration of Presumed Death here and may even organise another hearing on the matter. 

If the Court does grant your Declaration of Presumed Death you can apply to the General Register Office for a copy of this certificate - which can be used to apply for Probate.

The application for a Declaration of Presumed Death to the High Court costs £528. A copy of the Declaration of Presumed Death certificate costs £11.

Contact our Probate Solicitors in Central London today 

Our Probate Solicitors at Lewis Nedas Law are experienced in dealing with Declaration of Presumed Death applications and can aid you through the process and help alleviate this added stress in what is already a very difficult time. Contact us on 020 7387 2032 or fill in our online enquiry form  to get help from our team. 

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This section explains how to get a declaration of presumed death and the grounds for doing so. Find out who can make a claim, the court fees, and what conditions apply.

Any claim to get a declaration of presumed death would need to go to the High Court.

To proceed, you would need to know someone in England and Wales who has been missing for a period of:

• Seven (7) years (or longer).
• Less than seven years if you think they already died (e.g. they got caught up in a natural disaster and have been missing since).

Note : The law in the United Kingdom does not ‘automatically’ presume a missing person as dead.

So, there are several valid reasons to make a claim for a presumption of death declaration. For example, it would be necessary if you want to deal with the estate of a missing person.

Having ‘Sufficient Interest’ (who can make a claim)

As a rule, the spouse (or civil partner), parent, child, or sibling of a missing person can make a claim. Most other claimants would need to prove some connection to the missing person.

Note : The court considers this as ‘sufficient interest’. A typical example would be a distant relative (with a birth certificate as proof).

Conditions for Making a Claim

At least one of these circumstances must also apply to meet the criteria of a valid claim:

• You are treating England or Wales as your domicile (permanent home) on the date of the claim.
• You lived in England or Wales for the full year before the date that you make a claim.
• Lived in England or Wales for the full year before the date that they were last known to be alive.
• Treated England or Wales as their domicile (permanent home) on the date that they were last known to be alive.

Note: Different rules and procedures apply for the presumption of death in Scotland and in Northern Ireland.

Paying Court Fees

The court fee for getting a declaration of presumed death is £528. You can use Form EX160 to apply for help with fees from a court. You may not need to pay at all or get some money off.

Making a Claim

A legal representative can make a claim for a declaration of presumed death on your behalf. You can also make it yourself by following these three steps.

1. Make a Claim

Start by downloading the document titled ‘ Form N208: Claim form (CPR Part 8) ‘ (English or Welsh version). It has extra guidance notes about:

• The claimant [you]
• The defendant [the missing person]

Form N208 has further guidance on filling in the application. You must include all the information in the section titled ‘claim for variation order’. It is part of the ‘procedure for claims – Rule 57.19’.

You may need to find a court that can hear High Court cases. Send the form to the court and remember to include:

• N208 form: One copy should go to the court and another copy for each person named in the form.
• Any supporting evidence relevant to the case (e.g. police reports, witness statements).
• The claim fee. Make it payable to ‘HM Courts and Tribunals Service’ if you pay by cheque.

Note : The court will keep a copy of the N208 form and stamp an issue date on yours. They will return all other copies and give you a case number with ‘acknowledgement of service’ forms.

Sending Copies of a Claim to Others

You will need to send out an acknowledgment of service form and a copy of form N208. Send them within seven (7) days of the court issue date to (both):

• The spouse (or civil partner), parents, children, and siblings of the missing person. Send the forms to the nearest relative if none of the others are alive.
• Any other organisation or person that may also have an interest in the case (e.g. an insurance company).

2. Advertise the Claim in a Newspaper

If you make a claim to change or cancel a presumption of death certificate you must advertise it in a newspaper. It must be a newspaper that is local to the last known address of the missing person.

Note : Place the advertisement within seven (7) days of the court issue date stamped on the claim form.

Placing a Standard Text Advert

You should use the following ‘standard text’ for the newspaper advert. You will need to delete and replace words as necessary to achieve the correct details. The person making the claim is the ‘claimant’.

“In the High Court of Justice [Chancery] [Family] Division

Case number [insert case number]

In the matter of an application for a declaration of the presumed death of [insert the missing person’s name].

A claim has been issued in the High Court of Justice, for a variation of a declaration that [insert missing person’s name] whose last known address was [insert missing person’s address] is presumed to be dead. Any person having an interest may apply to the court to intervene in the matter.

If you wish to apply to the court, you should do so at [court address] as soon as possible, and if possible within 21 days of the date of this notice. Delay may harm your prospects of being able to intervene.

(If the claimant is legally represented) [Name of the claimant’s legal representative] [Address of the claimant’s legal representative] (If the claimant is not legally represented) [Claimant’s address for service]”

Sending a Copy to the Court

You must send a copy of the newspaper page to the court to arrive within five (5) of the hearing. The copy should show the details of the advertisement placement.

3. Attend a Hearing

You will need to attend a hearing with a High Court judge. As a rule, this should take place within two (2) months of the original claim. Take any relevant documents with you to the hearing.

Others will receive a copy of the claim form or they may see the newspaper advert. Someone with a valid reason may choose to challenge a claim for a presumption of death declaration .

During the court hearing the panel might:

• Ask you for more information. You can apply for a court order if someone refuses to give you the information that you need.
• Inform you that there needs to be another hearing. There may be a need for several hearings to bring the case to a conclusion.

Note : The hearing should determine whether the court agrees with your application. If so, the court will change or cancel a presumption of death certificate either at the hearing or later by letter.

GRO Certificate of Presumed Death

You can get a certificate of presumed death from the General Register Office for £9.25. But, before applying you must wait until after:

• Anyone decides to appeal it.
• The time limit for appealing against the decision passes.

As a rule, you can apply for the certificate 21 days after receiving the declaration. You may need to wait longer if someone appeals or they make an application for permission to appeal the decision.

General Register Office Telephone: 0300 123 1837 Monday to Friday: 8am to 8pm Saturday: 9am to 4pm

You would be able to use the document the same as a normal death certificate. It states when the missing person is presumed to have died. So, it would be useful if you are dealing with the estate of a missing person.

ALSO IN THIS SECTION

Challenge a Presumption of Death Claim | How to ‘intervene in’ a presumption of death declaration.

Change a Presumption of Death Certificate | Changing or cancelling a presumption of death certificate.

Appealing a Court Decision

You should contact the Civil Appeals Office if you want to appeal against a decision made by the High Court.

Civil Appeals Office Room E307 Royal Courts of Justice The Strand London WC2A 2LL

Telephone: 0207 947 7121 Monday to Friday: 9am to 5pm Current phone call charges list .

Making a Complaint

The new HMCTS complaints procedure replaces the withdrawn EX343 guidance. Use it to make a complaint about HM Courts and Tribunals Service. You cannot complain about the decision but they can help with complaints about:

• The facilities at their venues.
• The way their administrative staff handled your case.

Missing persons: the declaration of presumed death in England and Wales, Scotland, and Spain

by ICRtranslations | May 5, 2021 | Legal words

Following up on my article about managing the affairs of missing persons , where I wrote about guardians (EW), judicial factors loco absentis (SCO) and representantes del ausente (SPA), today I share information about declaring missing persons dead in England and Wales, Scotland, and Spain.

England and Wales: declaration of presumed death

The Presumption of Death Act 2013 (in force since 1 October 2014) allows applying to the High Court for a declaration that a missing person is presumed dead. The missing person must be thought to have died or not have been known to be alive for at least 7 years before applications can be made .

Before the enactment of the Presumption of Death Act 2013, it was extremely difficult to obtain a death certificate in England and Wales without a body.

Applying for a declaration of presumed death

Anyone can make an application but the applicant (unless it is the spouse, civil partner, parent, child or sibling of the missing person) must have sufficient interest in the application, something that it is up to the court to decide.

There are certain domicile and residence requirements to be met for the court to be able to hear and make a decision regarding the application:

• the missing person was domiciled in England and Wales when last known to be alive, or habitually resident in England and Wales for the preceding year; or
• the applicant is the spouse or civil partner of the missing person and is domiciled in England and Wales when the application is made or was habitually resident in England and Wales for the preceding year.

If the court is satisfied that the missing person has either died or not known to be alive for seven years, it will issue a declaration of presumed death . The declaration of presumed death is no longer appealable after 21 days of issuance. The applicant can then apply to the General Register Office for a certificate of presumed death .

The declaration of presumed death

The declaration states the date of presumed death. When the declaration is no longer appealable, it becomes effective for all purposes.

A certified copy of an entry in the Register of Presumed Deaths is treated as evidence of the missing person’s death.

The Presumption of Death Act 2013 provides for the variation and revocation of a declaration of presumed death, where, for example, the missing person returns, or there is evidence of the missing person to have been alive at a time later than the one in the declaration.

Scotland: declarator of death

The procedure of legally declaring a missing person dead is governed by the Presumption of Death (Scotland) Act 1977. The missing person must either have been missing for at least seven years, or have been missing for less than seven years but be thought to have died.

NOTE THAT , unlike England and Wales, Scotland allows raising a court action immediately when a missing person is thought to have died (e.g. when a person disappeared in circumstances which present an immediate threat to their life) without having to wait seven years.

Applying for a declarator of death

The process of applying to a court to declare the missing person dead is known as ‘declarator of death ’ and is raised either in the Court of Session or in the Sheriff Court, depending on meeting certain conditions:

The action can be raised in the Court of Session if

• the missing person was domiciled in Scotland or habitually resident in Scotland for the preceding year; or
• the applicant is the spouse or civil partner of the missing person and is domiciled in Scotland or habitually resident in Scotland for the preceding year.

The action can be raised in the Sheriff Court if

• the missing person was domiciled in Scotland or habitually resident in Scotland for a year before going missing and their last known place of residence in Scotland was in the sheriffdom; or
• the applicant is the spouse or civil partner of the missing person and is domiciled in Scotland or habitually resident in Scotland for a year before raising the action and have been residing in the sheriffdom for at least forty days before raising the action.

If the court is satisfied that the missing person is more likely than not to have died, they will grant a declarator of death.

The declarator of death

The declarator of death will state the date and time of the presumed death. If the date of death of the missing person is not certain, the court will find that the missing person died since his or her fate was uncertain.

The effect of a declarator of death is conclusive for all purposes . It allows the administration of the missing person’s property and possessions and dissolves any marriage or civil partnership. The person’s death will then be registered on the National Records of Scotland (NRS) and a death certificate could then be applied for.

Spain: declaración de fallecimiento

Spanish law allows applying for a declaración de fallecimiento when a person has been missing for a certain period of time and under certain circumstances, including:

• (a) when a person has been missing for at least 10 years or after 10 years of having no news about the person;
• (b) when a person has been missing for at least 5 years or after 5 years of having no news about the person, if the person would have already reached 75 years of age;
• (c) when a person has been missing for at least 1 year and the person disappeared in violent circumstances which presented an immediate threat to his or her life;
•      (d) when a person has been missing for at least 3 months after being involved in an accident, natural disaster or another similar event.

Applying for a declaración de fallecimiento

The procedure for the declaration of death is set out by Artículo 74, Ley 15/2015, de 2 de julio, and who may start proceedings for the declaration will depend on the circumstances of the missing person:

• The public prosecutor ( Ministerio Fiscal ) will start proceedings for the declaration of death in the cases stated in apartado 2 and 3 del artículo 194 Código Civil .
• Either the public prosecutor or interested parties may start proceedings for the declaration of death in the cases stated on artículo 193 (circumstances (a), (b) and (c) in the section above) and apartados 4 y 5 del artículo 194 Código Civil (including circumstance (d) in the section above).

The declaration of death is made in a court order issued in non-contentious proceedings , which are not related to the judicial declaration that a person is legally missing ( declaración de ausencia ). A missing person may be declared legally dead without having been previously declared legally missing. The declaration is then registered on the Civil Register, indicating the date of the presumed death.

The declaración de fallecimiento

The declaration of death, which states the date of presumed death, has a series of legal effects on the estate and family members.

Regarding the estate : The declaration of death becoming final triggers the commencement of succession ( apertura de la sucesión ) and assets are distributed to the heirs as per testamentary succession or intestacy rules, as applicable. Heirs have an obligation to lodge an inventory of personal property and prepare a description of the real property belonging to the person declared legally dead. Within five years from the declaration of death, heirs are prohibited from transferring any property without valuable consideration. No legacies will be distributed within five years from the declaration of death either, except for charitable legacies.

Regarding family members : All existing family relationships will be terminated, including the community of assets property regime ( régimen de gananciales ) and the legal custody of children. Pursuant to artículo 85 Código Civil , the declaration of death also dissolves the marriage, irrespective of how and when it was solemnised.

A declaration of death may be revoked when the person declared legally dead reappears or there is evidence that the person is alive.

Recommended read : for more information about the Spanish process of inheriting from a deceased, read my article ‘ 8 Spanish succession concepts with no English equivalent ’ .

The information included in this article is correct at the time of publication/last update. This article is for informational purposes only, does not constitute legal advice and should not be relied upon as such . Any reliance you place on such information is strictly at your own risk. ICR Translations will not be liable for any loss or damage arising from loss of data or profits as a result of, or in connection with, the use of this website.

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Irene Corchado Resmella , a Spanish translator based in Edinburgh. English-Spanish sworn translator appointed by the Spanish Ministry of Foreign Affairs,  Chartered Linguist and member of the CIOL. As a legal translator , I focus on Private Client law, specialising in Wills and Succession across three jurisdictions (England & Wales, Spain, and Scotland). Affiliate member of STEP . ICR Translations is registered with the ICO and has professional indemnity insurance.

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Gathering Evidence for an Application for a Declaration of Presumed Death

If a loved one has been missing for a long time, applying for a declaration of presumed death might feel like the right thing to do.

There are no prescribed rules about when a family should do this, and only you and your loved ones can truly know when you’re ready to take this step. It’s a very personal decision and, though specialist solicitors will be able to advise you, no one should make you feel like they’re pressuring you to apply.

If you believe that your loved one has died, applying for a declaration of presumed death might help you to be able to get some kind of closure. A declaration of presumed death can also be beneficial from a practical standpoint, as it will allow you to wind up the missing person’s estate and claim any relevant life insurance premiums. The declaration will also automatically end the missing person’s marriage or civil partnership, which would allow their spouse to move on from a legal perspective. 

You can make the choice to apply for a declaration of presumed death if either:

• Your loved one has been missing for more than seven years with no evidence of them being alive during this time.
• Your loved one has been missing for less than seven years but there is strong evidence to suggest they have died.

Download our handy guide

Everything you need to know about the legal steps you can take when a Loved One Goes Missing

How do you apply for a declaration of presumed death?

It is possible to apply for a declaration of presumed death independently, but it’s often much easier to manage the process with the support of a solicitor who specialises in missing persons law. 

There is quite a lot of paperwork to complete in order to lodge an application, and you will usually need to go to court. As part of the process, you will also need to collect evidence to show why you believe the missing person is no longer alive. 

The kind of evidence you will need to supply will vary slightly depending on whether you are applying before or after seven years. 

Gathering evidence before seven years

If you wish to apply for a declaration of presumed death on behalf of someone who has been missing for less than seven years, you will need to be able to provide strong evidence to show the likelihood that the missing person has died.

In these situations, the evidence you would need to gather would be things like:

• Witness statements to confirm that the person has been lost at sea.
• Witness statements placing the missing person in the vicinity of a natural disaster.
• Proof that the missing person’s belongings were found near a cliff edge, on a mountain or near a body of water. 
• A suicide note left by the person before they went missing. 

If you’re not sure whether the kind of evidence you are able to provide will be strong enough, a solicitor with experience in missing persons law will be able to advise you. 

Gathering evidence after seven years

In many cases, there may not be any specific evidence that the missing person has died. In these situations, the family of the missing person would only be able to apply for a declaration of presumed death once the missing person had been gone for more than seven years. 

After this point, if they wished to apply, they would need to provide evidence that there has been no sign of life from the missing person during this seven-year period. 

This would need to include proof that during this time:

• There has been no known contact from the missing person.
• There have been no verified sightings.
• There is no electronic evidence of the person accessing their bank accounts.
• They have not made any payments on debit or credit cards.
• There has been no activity on their social media accounts.
• There is no evidence of them using their mobile phone. 

What are the next steps?

Once you have gathered all the necessary evidence, these would need to be put together as part of your application. Your application will need to include a witness statement from the person applying, which has to be written in quite a specific way. If you’re working with a solicitor, they’ll have experience of how to do this and will be able to help you ensure all necessary information is included. 

Once your application is complete, it will need to be submitted to the court to begin the next stage of the application process. 

How Roche Legal can help

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Missing People & Applying For a Declaration of Presumed Death

It is a sad fact that people go missing and are over time presumed, due to the circumstances of their disappearance, to have died.

Aside from the loss and grief often experienced, the disappearance can also present many practical legal difficulties. For instance, the disappeared person’s spouse or partner later dies, becomes infirm or needs to sell a jointly owned property or financial asset to utilise the missing person’s share of the sale proceeds for their well-being. Selling jointly owned property or assets may present serious difficulty, mainly if the sale proceeds of the missing person’s estate must, after the sale, be held in trust for some years to the detriment of a widow or partner.

Before the advent of the Presumption of Death Act, 2013 (“the Act”), there was no simple way of seeking the assistance of the court to help resolve the issue of a person’s disappearance and assets where they were believed to had died. Now, a successful application to the court under the Act will produce the legal equivalent of a death certificate. This declaration of presumed death can be of great assistance, particularly to close relatives, whose finances and well-being are closely associated with the missing person.

Under the Act, the court has several powers. These include:

• Making a declaration of presumed death
• and determining questions and making orders relating to interests in property.

These powers may be critical to those left in a difficult situation as a result of the disappearance. A court-sealed copy of a declaration of presumed death also serves as a death certificate and allows the executors appointed under the missing person’s will to apply for a grant of probate or the appointment of administrators to administer the estate if no will exists.

The courts in England and Wales can make a direction as to presumed death where the missing person was domiciled in England and Wales on the day they were last known to be alive, or habitually resident in England and Wales throughout the period of one year ending with the day the missing person was last known to be alive. The range of people who can apply is broad, although those who are not immediate family may need permission to apply under the Act. If the person applying is the missing person’s spouse or civil partner, then they must have been domiciled in England and Wales or habitually resident as described above.

Being able to seek a declaration of death may well allow a spouse, partner or the family of a missing person to move on and assist in the resolution of property and financial issues for those left behind. If you require support in making this application under the Presumption of Death Act, contact our contentious probate solicitor , Tony Pearce today for immediate assistance.

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168. Application for declaration of presumed death.

(b)      powers and procedure in relation to making a declaration of presumed death.

Where a person who is missing:

(1)     is thought to have died 1 ; or

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Presumption of death act 2013, you are here:.

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Declaration of presumed death

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1 Applying for declaration

(1) This section applies where a person who is missing—

(a) is thought to have died, or

(b) has not been known to be alive for a period of at least 7 years.

(2) Any person may apply to the High Court for a declaration that the missing person is presumed to be dead.

(3) The court has jurisdiction to hear and determine an application under this section only if—

(a) the missing person was domiciled in England and Wales on the day on which he or she was last known to be alive,

(b) the missing person had been habitually resident in England and Wales throughout the period of 1 year ending with that day, or

(c) subsection (4) is satisfied.

(4) This subsection is satisfied if the application is made by the spouse or civil partner of the missing person and—

(a) the applicant is domiciled in England and Wales on the day on which the application is made, or

(b) the applicant has been habitually resident in England and Wales throughout the period of 1 year ending with that day.

(5) The court must refuse to hear an application under this section if—

(a) the application is made by someone other than the missing person’s spouse, civil partner, parent, child or sibling, and

(b) the court considers that the applicant does not have a sufficient interest in the determination of the application.

(6) This section has effect subject to section 21 (2) .

2 Making declaration

(1) On an application under section 1, the court must make the declaration if it is satisfied that the missing person—

(a) has died, or

(2) It must include in the declaration a finding as to the date and time of the missing person’s death.

(3) Where the court—

(a) is satisfied that the missing person has died, but

(b) is uncertain at which moment during a period the missing person died,

the finding must be that the missing person is presumed to have died at the end of that period.

(4) Where the court—

(a) is satisfied that the missing person has not been known to be alive for a period of at least 7 years, but

(b) is not satisfied that the missing person has died,

the finding must be that the missing person is presumed to have died at the end of the period of 7 years beginning with the day after the day on which he or she was last known to be alive.

3 Effect of declaration

(1) A declaration under this Act is conclusive of—

(a) the missing person’s presumed death, and

(b) the date and time of the death.

(2) A declaration under this Act is effective against all persons and for all purposes, including for the purposes of—

(a) the acquisition of an interest in any property, and

(b) the ending of a marriage or civil partnership to which the missing person is a party.

(3) But subsections (1) and (2) apply to a declaration only if—

(a) it has not been appealed against and the period for bringing an appeal has ended, or

(b) it has been appealed against and the appeal (and any further appeal) has been unsuccessful.

(4) For the purposes of subsection (3) , an appeal has been unsuccessful if—

(a) it has been dismissed or withdrawn, and

(b) any period for bringing a further appeal has ended.

4 Other powers of court making declaration

(1) When making a declaration under this Act, the court may—

(a) determine any question which relates to an interest in property and arises as a result of the declaration, and

(b) determine the domicile of the missing person at the time of his or her presumed death.

(2) When making a declaration under this Act, the court may make such order as it considers reasonable in relation to any interest in property acquired as a result of the declaration.

(3) An order under subsection (2) may direct that the value of any interest in property acquired as a result of the declaration is not to be recoverable by virtue of an order made under section 7 (2) .

(4) It may, in particular, direct that the value of the interest—

(a) is not to be recoverable in any circumstances, or

(b) is not to be recoverable where conditions specified in the order are met.

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