There are all sorts of reasons why the loved ones of a missing person might decide the time is right to apply for a certificate of presumed death. In addition to offering a kind of closure, which may be much-needed, a certificate of presumed death will also allow loved ones to move forward with the next legal steps, including administering the missing person’s estate.
Administering an estate on behalf someone who is presumed dead is very similar to carrying out the same process for someone who is known to have died. However, there are a few differences and additional considerations to keep in mind.
Applying for a grant of representation
In many cases, you will need to apply for a Grant of Probate or a Grant of Administration (collectively known as grants of representation) to prove that you have the authority to administer an estate. You will definitely need to do this if the person who is presumed to have died owned property. If there is no property involved, whether or not you need a grant of representation will usually depend on the amount of money held by the estate and whether the banks, building societies or other financial organisations involved will allow you to access them without one.
If a grant is not needed, the financial organisations involved will accept a certificate of presumed death in place of a death certificate.
If a grant of representation is needed, the type you will need will depend on whether or not the person who is presumed to have died left a valid Will. If so, the individuals who were named as executors in that Will will need to apply for a Grant of Probate. If there is no valid Will, the individuals closest to the person who is presumed dead will need to put together an application for a Grant of Administration.
For both types of grant, the application process will be very similar to what it would be if you were applying on behalf of someone who was known to have died. The main difference is that you will need to submit a certificate of presumed death rather than a death certificate.
Managing the administration process
Once you have been granted access to the estate of the person who has died, you will need to follow all the usual steps of the process.
This includes:
- Assessing and valuing the estate.
- Determining whether any inheritance tax will be payable.
- Selling property on behalf of the estate, if appropriate.
- Selling stocks/shares/bonds/other valuables on behalf of the estate if needed.
- Locating beneficiaries.
- Distributing the estate as per the Will or intestacy rules.
However, it is important to keep in mind that administering an estate on behalf of someone who is presumed to have died has a key difference to administering other types of estates. That key difference is that there may well be a small chance that the person who is presumed dead has not actually died.
The statistics for how often a certificate of presumed death has to be revoked due to the missing person returning are, sadly, vanishingly low. However, depending on the circumstances of each individual situation, personal representatives may wish to keep this in mind when administering the estate.
If someone who is presumed dead was to return after their estate had been administered and distributed to their beneficiaries, they would have no legal power to recall their property, money or other valuables. Because of this, some personal representatives may choose to protect against this possibility.
They may do this by choosing to take out an insurance policy. This policy would protect against the possibility of the person who is presumed dead returning after their estate had been distributed. In these situations, the insurance pay out would be intended to replace some, or all, of the money the person who was presumed to be dead had lost. In some situations, the court might order or recommend that this type of policy is taken out at the time of them granting a presumption of death.
Alternatively, some personal representatives may choose not to distribute the estate at all. Instead, they may assess, value and consolidate the estate (including selling any property or valuables, if appropriate) but then hold the capital belonging to the estate in trust. This might be a short or long term solution, depending on how likely the personal representatives consider a return to be.
Seeking legal advice during the process
It’s often advisable to seek advice from a specialist solicitor if you are dealing with the administration of a complex estate. This is likely to be even more the case if you are dealing with a complex estate belonging to a person who is presumed to have died.
A solicitor will be able to help ensure you have considered all possibilities and that you are acting in the best interest of the estate. They will also be able to offer advice on specialist insurance policies and trusts.
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
Need further help?
If you would like to discuss these issues further, please contact us.
