Can you administer an estate without proof of death?
Article date: 22/01/2014
Partner Ian Bond says that the new Presumption of Death Act 2013, which becomes law from 1 October 2014, will help scores of families across England settle the affairs of loved ones who have gone missing and are presumed dead.
The new law comes following years of campaigning and will allow relatives to apply for a single certificate, effective against all persons and for all purposes, from the High Court declaring someone presumed to have died at a particular date and time.
Ian Bond, a partner at Higgs & Sons, says: "We all know of both fictional and real life cases in which people have gone missing and their death has been presumed or faked; Sherlock Holmes kept us enthralled for nearly a year and Lord Lucan, who was also subject to a television show over Christmas are both examples. So too is the recent matter of the disappearing canoeist, John Darwin, and the Manic Street Preachers guitarist Richey Edwards who went missing in 1995.
"Currently there is not one piece of legislation in England and Wales which deals with the presumption of death of a missing person who is thought to have died. Instead, there are a number of different legal procedures, each of which can be used to achieve a specific outcome. Some of these procedures lead to the issue of a death certificate, but others do not."
If a person has been missing for an extended period of time, usually seven years, there is a presumption that the person has died. As such, a coroner will file a report and request that an inquest takes place without a body. However, if there is a large estate or complicating factors, the court can ask for further efforts to be made to try and locate the missing person which can cause further delays and difficulties for family members.
Ian says Lord Lucan's case is a prime example. "On 7th November 1974 the Police were called to the house occupied by Lady Lucan, her children, and their nanny, Sarah Rivett. They found the nanny's body; Lord Lucan being the prime suspect had disappeared. His car was found abandoned four days after the murder and he has never been seen since. Given the complexities of the estate Lord Lucan was not declared "presumed dead" until 1992 and declared legally dead in 1998. Probate on his estate was granted in 1999, and his son took over the title, becoming 8th Earl of Lucan."
The new law does not deal with the managing of the affairs in the intervening period. Relatives will not have any legal right allowing them to maintain a missing person's estate during these years by cancelling direct debits, paying off debts, and providing maintenance for dependents. Currently the only way to safe guard a missing loved one's affairs in the aftermath of a disappearance is through a valid power of attorney.
Ian concluded: "The law will only apply from 1 October 2014, so unfortunately for Sherlock, had he really died, and let's face it, it was all very confusing, his family could not have called upon the new law!"
For more information about administering estates or managing the affairs of a loved one please contact Ian Bond at Higgs & Sons on 0845 111 5050 or firstname.lastname@example.org.