In applications for letters of administration (not probate), unless an exception applies (see below), the law requires you to check whether any 'paternity instruments' have been registered with Births Deaths and Marriages.
Paternity instruments are types of legal documents that name the father and mother of a specified child, usually where there has been a dispute. They include paternity orders, declarations of paternity, and deeds of acknowledgment of paternity.
Paternity orders and declarations are orders made by the Family Court or High Court when a father wants to be acknowledged by the mother (often in order to obtain contact with the child), or when a mother wants the father to be identified (often in order to obtain child support).
There can also be a deed of acknowledgment of paternity, which is not a court order but a formal document registered with Births Deaths and Marriages.
Copies of all these are held by Births Deaths and Marriages and indexed in registers.
You request a search of those registers by:
- writing to Births Deaths and Marriages with no Kiwilaw involvement, and paying a $35.70 search fee; or
- instructing Kiwilaw to do this for you (our fee is $60 plus the $35.70 search fee) – choose below; or
- using Kiwilaw’s DIY automated interview which (for $19.95) prepares a letter which you can download and print and send to Births Deaths and Marriages yourself – including a credit-card authority to sign, to pay the search fee – choose below.
Are there any extra children?
If you are applying for letters of administration (not probate) to deal with what your loved one owned when they died, the High Court may require details of your loved one’s children, if any.
Those children may be entitled to share in what your loved one left.
They may be entitled to apply for letters of administration and may have to be notified that you intend to apply.
If any have died before your loved one, their own children may be entitled to take a share.
If any have died after your loved one, their own heirs may be entitled to take a share.
You have to include all the children you know about.
In most cases, you also have to confirm you have made full enquiries to find out whether your loved one had any (other) children.
No search is required if it's pointless
No searches or enquiries are required if the High Court registrar agrees that is pointless.
When there is no will, it’s pointless if:
- you are the surviving spouse or partner of the deceased; and
- you are the applicant for letters of administration; and
- the deceased’s estate is worth less than $155,000 (plus ‘personal chattels’)
In that case, any children do not have a share anyway.
When there is no will, children only have a share if there is no surviving spouse or partner, or if the surviving spouse or partner opts to take their share under relationship property, or if the estate is worth more than $155,000.
When there is a will but no executor, so an application is being made for ‘letters of administration with will annexed’, it’s pointless if:
- the applicant is a beneficiary under the will; and
- everything the deceased owned is covered by the will; and
- the will does not make any provision for children to inherit.
It’s rare for other circumstances to be accepted as evidence that a search is pointless.
Usually it is cheaper to do the search than to incur the extra legal fees involved in proving that the search is unnecessary.
Check documents and ask the family
You are required to keep an eye out while you are searching for a will – are there any documents that mention any children you did not know about?
You should also ask family and friends whether they know of any (other) children.
Make any other enquiries that are relevant to your loved one’s situation. Check with their lawyer, if they had one.
Not required for deaths before 1970
If your loved one died before 1970, this requirement does not apply.
That is because the Status of Children Act 1969 came into effect in 1970. The register of paternity instruments did not exist before then. Children’s right to inherit was different.
If you are applying for letters of administration for someone who died before 1970, check that your lawyer is applying the legal requirements for when your loved one died.
