Prickly Probates series – De bonis non – what does it mean and what does it do?

A partner at a small law firm once told me a lovely story about approaching a colleague of hers with a difficult probate application. She explained to her colleague the situation and the colleague said to her that an application de bonis non would be required. As these applications are rare and estates were not part of this partner's expertise, she asked her colleague what that meant.

The colleague was apparently shocked and rebuked the partner saying: "I can't believe you don't know what de bonis non means!" The partner was embarrassed for a moment until she thought to ask: "do you know what it means?" to which the answer was "no".

While the name sounds thoroughly perplexing, an application de bonis non is just another species of Prickly Probate and one which I intend to demystify (at least in a general way) in this article.

What does it mean?

De bonis non is a Latin legal phrase, and essentially it just means "goods not administered". What that means in practice is that an executor (or an administrator, but we'll use an executor as the example for this article) has been appointed as executor to an estate and that executor has failed to complete the administration of the estate.

If the difference between executors and administrators is evading you, have a look at our handy comparison of probate and letters of administration article here which explains the difference.

Administration of the estate in this context just means the executor completing their duties such as:

arranging the funeral and burial/cremation for the deceased person;
finding all the estate assets;
bringing them all together;
paying the estate debts; and
paying the balance to the beneficiaries.

I have seen an estate fail to be fully administered for a number of reasons:

an elderly surviving spouse being appointed as executor who then dies of old age;
an executor dying of an unexpected disease or accident;
an executor losing mental capacity for some reason;
the administration taking so long and being so complicated that the executor loses motivation and refuses to continue; and
my favourite example was a family of Americans living in a wild area of the country where the father appointed his only son based on (according to his daughter) an old-fashioned belief that sons were better to appoint than daughters. However, as it turned out, the son was far more interested in hunting deer (and shooting the occasional bear) and absolutely detested paperwork, so he completed only a part of the administration before giving his permission for his (very well-organised) sister to complete the rest.

What does it do?

Essentially this type of application appoints someone new to administer the rest of the estate when part of it (for whatever reason above) has been left unadministered and there is no way to force the original executor to administer the balance.

There are two main de bonis non applications that can be made:

Letters of Administration with Will Annexed De Bonis Non: for of the situation where there is a will; and
Letters of Administration De Bonis Non: for of the situation where there isn't a will.

You might be wondering now where the application for probate is in all of this. I haven't forgotten it; probate can only be granted to one or more of the executors named the will. An application de bonis non will only ever be necessary because all of the executors in the will are either dead, unable or unwilling to administer the estate any further, so probate is never an option with an application de bonis non. If there is a will, it gets included in being the "with will annexed" in Letters of Administration with Will Annexed De Bonis Non.

Letters of Administration with Will Annexed is another prickly application where there is a will, but there is no executor willing or able to act and I plan to write an entire article on that subject another time.

Who can apply?

Working out who is the best person to apply for this grant is quite a complex question based on centuries of cases where the court worked out what was most just under the circumstances

However, it can be reduced down to two general rules:

the court's preference is something called the chain of representation; and
if the chain of representation has been broken, the court prefers in cases like this (in fact, in all cases other than those where there is a chain of representation) the people who have the greatest interest in the estate (i.e. people who are entitled to receive the most assets of the estate) to run the estate.

What is this chain of representation? Simply put, it is an unbroken chain of wills appointing executors who then successfully apply for probate. The court looks at things in terms of the wishes of the will-maker. If the will-maker (let's call him Bob) appointed someone to be his executor (let's call him Joe), Bob must have liked and trusted Joe. If Joe dies part-way through completing his duties as the executor of Bob's estate then the person who Joe appointed as his executor (let's call him Frank) must have been liked and trusted by Joe (who was, in turn, liked and trusted by Bob). Accordingly, Frank can stand in the shoes of Joe and administer the rest of Bob's estate.

This is why the chain of representation cannot be used (and is broken if it is in place) if any of the links are letters of administration and not probate. The administrator appointed under letters of administration is not the will-maker's choice because there is no will setting out that choice.

Accordingly, the chain of representation is broken if:

someone dies without a will and letters of administration is required; or
someone dies with a will but none of the executors appointed under that will are willing or able to apply for probate and become the executor.

For more information

This particular application is so prickly that I am tempted to write another article about it at a later time. There are still many interesting twists and turns that I have not covered. For my contacts on LinkedIn, let me know if you're interested in some more de bonis non by replying to this post.

If you are a family member struggling with the fact that an estate has only been partially administered, get in touch. We can not only let you know all your options and help you choose the best one, but we have the expertise to make this application if it is needed so that the estate gets sorted out in a timely manner and you don't miss out on your inheritance any longer.

If you are a lawyer struggling with one of these applications (first of all, you have my sympathy because I know your pain!) and you might like to consider instructing us to make this application for you. We run a service for other lawyers preparing these applications on your behalf. Because we do so many of them (and are within walking distance of the High Court probate unit), we can complete them faster (and usually cheaper) then you can and it saves you the unchargeable time coming up to speed with a tricky application which you will not need to make often. Your client need not even know we exist, they just receive an efficient and painless grant and attribute that success to you.

For more information, please contact Jenny Lowe. Jenny is one of few legal specialists in New Zealand for probate, reseals and letters of administration applications, covering both the simple and the complex. She is particularly skilled in applications where the deceased lived and died overseas, but the estate has assets in New Zealand. You can contact Jenny Lowe by email at jenny.lowe@nzprobatesandreseals.com.