If a person has been missing for some time and it becomes necessary to deal with their estate, but their estate is not large enough to warrant an application to Court for a Declaration of Presumption of Death, then there is another option available. You can instead apply to the Court for “leave to swear death”.
Who can Apply for a Leave to Swear Death?
Whoever is entitled to obtain a Grant of Probate (where there is a Will) or a Grant of Letters of Administration (where there is no Will) should make this application to Court.
If there is a Will, this will be the Executor(s) and Trustee(s) named in the Will.
If there isn’t a Will, then it will be the person or people most entitled under the Non-Contentious Probate Rules 1987.
The person who gets the order of Leave to Swear Death should be the person who then deals with the estate, so you need to bear this in mind before submitting the application.
How do I apply for a Leave to Swear Death?
To apply, you need to prepare an Affidavit setting out the basis on which you believe the person has died and provide the Court with details of their estate.
This is then sent to the Probate Registry, and they will then decide whether it is appropriate in your case to grant permission to proceed on this basis.
It is strongly recommended that you seek advice from an authorised, regulated solicitor who specialises in this area of work before submitting your application, to make sure that you get it right first time.
What can I do with a Leave to Swear Death?
It’s important to note that the only thing that you can do with a Leave to Swear Death however is apply for a Grant of Probate (or a Grant of Letters of Administration) and use that document to deal with the person’s estate in line with either their Will or the Intestacy Rules.
It is therefore not as wide-reaching and effective as a Declaration of Presumption of Death, and cannot be used for general matters relating to the missing person – for instance, you can’t use it to end a marriage.
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