Missing, presumed dead
The following information explains the legal situation in Ireland regarding the estate and possessions of a missing person if they are presumed dead.
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. Two exceptions to this are:
- Where the property is jointly owned
- Where someone has Power of Attorney to deal with their property or money in their absence
Dealing with the missing person's property
The Civil Law (Presumption of Death) Act 2019 allows a court to make a "presumption of death order" if it is satisfied that the person's death is either virtually certain, or highly probable. You no longer have to wait 7 years.
If such an order is made and not successfully appealed, it has the same status as a death certificate.
When to apply for an order
There is no minimum waiting period before an application can be made if the applicant can provide enough evidence to satisfy the court that the person is virtually certain to have died.
However, if the applicant can only produce evidence to satisfy the court that it is highly probable that the missing person is dead, then they must wait one year.
Presumption of death order
A wide category of people can apply for a presumption of death order, including:
- All family members
This allows beneficiaries to seek death-related entitlements and ends the marriage or civil partnership of the missing person. Any person applying for a presumption of death order must notify all the other persons potentially affected by any order.
In addition, if an order is made, the applicant must take out insurance against any losses arising if the person returns. However, the cost of this insurance will be charged to the missing person’s estate. The court can also waive this requirement.
A court must take into account all the circumstances surrounding the disappearance and absence of the missing person in deciding whether to make an order, including:
- Abandonment of valuable property
- Searches made after the disappearance
- Any possible motive for disappearing
- Any possibility of foul play
- Life insurance recently taken out by the missing person
- Any prior history of fraud on the part of the missing person
There is also scope for a presumption of death order to be varied or revoked if there is new evidence suggesting the person is alive.
The Department of Justice has collated data from coroners about the number of unidentified remains in the State. This data has been made available to the public as it may help resolve unsolved missing persons cases.
If a friend or family member goes missing, contact your local Garda station.