Properties may lie empty for many years because the registered owner cannot be traced or is missing. This can cause excessive delays, burdensome processes, unnecessary costs.
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For mortgaged properties the lender may ultimately arrange to repossess due to missed mortgage payments. For unmortgaged properties the position is more complex. Significant problems can arise in the estate administration of someone who is missing, as they are not automatically presumed dead. It is therefore incredibly difficult to obtain a death certificate without a body. This causes complications with the process of administering and distributing an estate and the assets of a missing person.
Guardianship (Missing Persons) Act 2017
The Guardianship (Missing Persons) Act 2017 allows a guardian to be appointed to act in the best interests of a missing person, by managing their property and financial affairs. A guardian can be appointed once the person has been absent from their usual place of residence and usual activities for more than 90 days, but only by the High Court, which is responsible for reviewing each application and issuing the order, if it is deemed appropriate.
The legislation in question offers a remedy to families and local authorities, particularly where a property is involved.
Presumption of Death Act 2013
If a person is missing and presumed to be dead but there is no body, then several difficulties can arise. Largely, these relate to what happens with that person’s assets and affairs. A Declaration of Presumed Death can be made under the legislation. This is a legal declaration which confirms the status of a missing person as being believed to have died, along with a date and time of the presumed death. It is used to obtain a Grant of Representation to allow for the administration and distribution of a missing person’s estate. This includes dealing with properties which their loved ones have been unable to sell or transfer
The act specifies that an application can only be made to the Court if the person has been missing for a period of at least 7 years. In some circumstances, it can also be used if the person has been missing for less than that period, if there is evidence to suggest the person has died.
The application can be made by anyone. However, ordinarily, such an application would be made by the missing person’s spouse, civil partner, parent, child, or sibling. Alternatively, only someone who had an interest in the missing person’s estate would be able to make the application, such as the executor of a will, or a beneficiary under the rules of intestacy.
Case Studies: Missing Property Owners:
We assisted a client who was the son of a missing individual. The missing individual owned the family home in his sole name. Despite making extensive enquiries, there was no record of the whereabouts of the individual after his disappearance. The wife and son of the missing person continued to live in the family home until the wife’s death some years later. Our client was unable to prove his entitlement to the property, nor was he able to obtain a Grant of Letters of Administration for his parents’ respective estates which would have enabled him to obtain possession of the property. The property remained empty for a number of years until the local authority decided to take action.
We assisted the client in making an application to obtain a Declaration of Presumed Death which deemed that the missing individual died in 1974 when he was last known to be alive. The Declaration of Presumed Death allowed our client to prove his entitlement and obtain a Grant of Letters of Administration to each of his late parents’ estates and take possession of the property. This allowed our client to sell his former family home which had been taken out of his hands for well over a decade.
