Missing, presumed dead
As in other countries, many people go missing in Ireland every year. While the majority are safely reunited with their families, a small minority remain on the Garda National Missing Persons List. For those left behind, this can be a very difficult time. The following information explains the legal situation regarding the estate and possessions of a missing person.
If someone is thought to be dead but there is no body (for example, because a person was lost at sea), all of their assets and property are usually frozen to allow time for dealing with the deceased's estate. Two exceptions to this are where the property is jointly owned or where someone has Power of Attorney to deal with their property or money in their absence.
Dealing with the deceased’s legacy
Normally, you will not be entitled to a Death Certificate or to any pension, life insurance or bereavement-based social welfare payment in respect of the person who is missing/believed dead. However, there are two exceptions to this.
The first exception is in the case where there is strong evidence that the missing person is, in fact, dead. Normally, an inquest cannot be held unless there is a body. However, under Section 23 of the Coroners Act 1962, a Coroner may make a submission to the Minister for Justice and Equality requesting an inquest if he/she has to reason to believe that a death has occurred in or near his/her district in such circumstances that an inquest is appropriate even though the body may have been destroyed (for example, in a fire) or be unrecoverable (for example, after a drowning). If the Minister thinks it proper, he/she may direct an inquest to be held in relation to the death. A Garda report of the accident is usually submitted and if the verdict by the Coroner is that the missing person is dead, the person can legally be presumed dead and the death can be registered. Only then can the person's property be distributed, his or her life insurance and pension paid out, and their dependants be entitled to bereavement-related social welfare payments.
While there is no Irish legislation, the general rule in all other cases (where an inquest cannot be held) is that an application can be made to the High Court once the person has been missing for seven years or more. It may not always be necessary to wait for seven years before applying if there is a very clear implication from the circumstances that the person is dead. The High Court will then examine the situation, and if it finds (on the balance of probabilities) that the person is more likely to be dead than alive, a declaration will be made that the missing person is legally to be presumed dead. Once the High Court declaration has been obtained, the person's property may be distributed, life insurance and pension paid out, and the bereavement-related social welfare payments paid to entitled dependants.