Contentious probate solicitor, Chris Green takes a look at the new Guardianship (Missing Persons) Act.
With the Lord Lucan affair back in the headlines we turn our focus to a neglected area of the law; what happens when someone goes missing for an an extended period of time and is presumed to be dead?
Missing, presumed dead
When an individual is missing, presumed dead, but no body has been found, how should their affairs be dealt with? And in particular, what happens to that person’s assets? Standard Probate and Estate Administration procedures cannot be followed without the production of a death certificate, so what should the family or loved ones of the missing person do?
The difficulties arsing from such circumstances have long been recognised. In 2013 Parliament attempted to address the problem by passing The Presumption of Death Act.
This Act specifies that where a person has been missing for 7 years and is thought to have died then their spouse (or civil partner), parent, child or sibling can apply to the court for a declaration that they are presumed to be dead. If a declaration is made by the court the normal Probate and Estate Administration procedures can then be followed, allowing the missing person’s estate to be wound up.
The Guardianship (Missing Persons) Act
However, while this Act was certainly a step in the right direction, it failed to address what should happen during the 7 year qualification period. 7 years is a long time for someone’s assets to be left in limbo and there is huge potential for it to cause tremendous financial and emotional difficulties for those left behind.
The Guardianship (Missing Persons) Act 2017 is seen as the answer to this problem. The Act, not yet in force, will enable people to apply for a Guardianship Order after ninety days have passed, allowing them to handle the missing person’s property and financial affairs. Once it has been made, the Guardianship Order will be renewable for up to 4 years.
In tandem with The Presumption of Death Act 2013 it is hoped that the new Guardianship (Missing Persons) Act 2017 will improve the situation for those left behind when someone is missing, presumed dead, enabling them to manage a missing person’s affairs almost straight away and allowing them to seek a declaration to finalise the estate at a later date.
How we can help
Our Contentious Probate Team will be happy to discuss these issues with you on 0808 139 1606. We are experienced in dealing with difficult legal issues involving Estate Administration and offer specialist, cost-effective legal advice.