by I am so sorry.
There are too many of these cases.
They are usually males. They drive too fast, or do something stupid, or are in the wrong place at the wrong time, or deliberately end their lives.
Usually they don’t leave a will.
Sometimes they leave a note or an informal will that isn’t witnessed, maybe that isn’t signed.
Often they leave young children.
If he left no note, nothing in writing, no will at all
If your son was not married, and not in a current de facto relationship, his children inherit what he left. They are called the ‘beneficiaries’ because they benefit financially from his estate.
If it’s more than $15,000, the provider cannot release the Kiwisaver funds until someone has a grant of administration. That means either probate (of a will), or letters of administration.
If any of his children are 18 or over, one or two of them can apply for letters of administration. They cannot delegate this to you.
If none of his children are over 18, someone else may have to apply for letters of administration for the benefit of the children. If the High Court agrees, that applicant then becomes the administrator. They can uplift the funds, pay your son’s debts, and then hold the funds in trust for the children.
There’s a catch.
That person is usually expected to be the children’s guardian or caregiver. Not their grandparents. Especially if the guardian/caregiver does not get on with the grandparents and will not consent to the application.
That gets harder if there are children with different mothers, or if the mother has health or character issues that mean she should not be a trustee, or if it’s simply the last straw on top of everything else.
If the children are tweens or teenagers, they can probably appoint their own representative to make the application. Certainly they should be consulted. This can make things even trickier.
Usually the amount of money is not large, and no one wants to see it disappear in legal fees from arguments about who should look after it.
However, if it’s less than $120,000, there’s another option. That other option can mean the caregiver/s or guardian/s of the children do not have to deal with it, and nor do you.
Ask Public Trust to make an ‘election to administer’
Make an appointment at Public Trust. They have the discretion to take out an ‘election to administer’ for your son’s estate. That is a special statutory role under the Public Trust Act. It’s available if the estate is believed to be less than $120,000.
If they agree, they take over the work and the responsibility of getting it right.
They can talk to the children’s mother/s about it.
They don’t even need anyone’s permission to go ahead.
Yes, they charge fees. But their fees cannot exceed 5% of the estate. So, if it’s $40,000 Kiwisaver, their fees cannot exceed $2000. That’s a bargain.
Other costs – disbursements – are extra, but someone will have to pay them anyway. What’s more, the High Court fee for an election to administer ($30) is much less than for an application for letters of administration ($200).
And nobody has to pay anything up front. The fees and costs are taken out of the funds when Public Trust receive them.
You cannot do an ‘election to administer’ yourself. You cannot do it through a lawyer.
So talk to the Public Trust. Make it easy for them to say yes – take full details of the children, their mother/s, your son’s assets and debts (as much as you know), your son’s death certificate, and anything else they ask for.
(If you really really don’t want to use the Public Trust (and some people don’t), you may be able to use the Maori Trustee instead, if your son was Maori, and if his estate is believed to be less than $40,000. The Maori Trustee can also make an ‘election to administer’. However, I have not been able to find the Maori Trustee’s fees for this, or any statutory cap on those fees.)
If he left a note, or something in writing…
If he wrote something about what he wanted to happen to what he owned, it needs to be disclosed if you apply for letters of administration – or if you talk to Public Trust.
If it names someone as an ‘executor’, and if you are going to apply for letters of administration, you also need to give notice to that ‘executor’ before you apply for letters of administration.
If you want to honour what he says in that note, and if it’s different from what the law says should happen when there is no will, get legal advice.
Sometimes it’s possible to apply to the High Court for an order to validate a document as a will, even though it is not ‘valid’ from the outset. If the High Court agrees, the next step is then to apply for probate (or letters of administration with will annexed).
Or, if the beneficiaries agree, there can be a legal document to record the agreement and instruct the administrator to act on the informal will. (That will be trickier if the beneficiaries are under 18.)
If you want a headstone,…
The funeral / cremation / burial bill is payable from the funds your son left. The law says so.
A headstone is not – unless all the beneficiaries are adults and agree.
Don’t fight about this. Try to discuss it with your grandchildren’s mother/s. Offer to pay the cost, but don’t exclude them from having a say. Maybe it’s too hard for them right now. Give them the option, don’t force them.
If you want a relationship with his children…
Usually it is in the children’s interest to have a positive relationship with their paternal family.
It depends on the circumstances of the individual child, rather than general principles.
Exposing children to conflict is harmful. So too is any denigration or bad-mouthing in a child’s hearing about their parents or family. Or even the silent treatment, when one parent is not mentioned.
Be gentle.
Be patient.
Don’t give up.
Consider whether you need a formal parenting order to ensure the children have contact with you. Get legal advice from a family lawyer. Research the options. Do a ‘Parenting Through Separation’ course. Apply for mediation.
And if there is a real risk that the mother will remove the children from New Zealand without good reason, talk to a family lawyer about applying for additional guardianship and an urgent order preventing their removal from New Zealand. It’s easier to stop them going than to get them back. But be aware of the impact on your long-term relationship.
I hope this helps.
It’s too late to tell your son to make a will.
Please, tell his friends.
Cheryl Simes – 11 May 2021
