We have a situation where Mr X has died intestate leasving 3 cildren and wife is missing. We will be taking out missing beneficiary insurance. Does the spouse exemption apply still? my thought is yes as the spouse is still entitlted
I understand that you might not feel able to expatiate here on the precise circumstances of the spouse’s being apparently considered as “missing”. But that makes life difficult for anyone to comment with acuity.
The sad reality is that the formal legal procedure that allows a claimant to obtain a declaration that a given person is dead must be based on demonstrating a lapse of time of at least 7 years. A claim must be made by a spouse or civil partner, a parent or child or sibling.
The most secure remedy would therefore seem to be for the administrators of the estate to apply to the Court for directions and a Re Benjamin order that the estate should be dealt with as if the person in question is dead. This will not erase that person’s rights if they later turn up. The administrators will have to show that they have made reasonable attempts to discover the true facts. Such an exercise is not cheap so the key point is: who are they?
As non-contentious probate was not my specialist subject I cannot say definitively how the Court would deal with the obviously crucial timing issue. It might make a big difference here whether the missing person is deemed to died before or after the deceased’s death. That will presumably depend on what relevant and admissible evidence is made available and what precise order is sought.
Provided the administrators, if professionals, are protected by a Court order or an indemnity from the estate beneficiaries or, if they are family members and are content to rely on a collective conscience of a well-trained hippopotamus, they may just choose to pragmatically accept the risk that the missing person or those entitled through them, if they can show that such person survived the deceased, might in future pursue a valid claim that will not be binned as being out of time.
How realistic it is to presume the missing spouse is dead but survived the deceased one cannot say. However, if you wish to assert that the missing spouse survived and their entitlement was exempt for IHT, how on earth do you propose to deal with the administration of the estate of an individual who is, ex hypothesi, a missing person?!
Jack Harper