Estates of Foreign Domestic Helpers

There are many comments about domestic helpers and the problems they face in Hong Kong when they are alive.

However that is not all their difficulties. As a case that has recently come to my attention shows, a domestic helper’s family can face many problems if she/he dies leaving estate in Hong Kong.

Many domestic helpers open bank accounts here and have salary paid in. Few, if any, make a will, so they die intestate.

There was a married couple in the Philippines with a 10-year-old daughter, their only child. The mother had been working for some time in Hong Kong as a domestic helper and her salary was paid into her Hong Kong bank account. At the time of her death the balance in the account was HK$28,000.

The mother returned to Philippines on holiday when unfortunately both she and the child’s father were killed in the same accident.

The deceased mother’s sister was also a domestic helper in Hong Kong (the “Aunt”).

Neither of the deceased parents left a will. The Aunt sought advice from her sympathetic employer as to how to access the HK$28,000 in the bank account, as this would be very useful indeed for the welfare of the orphaned child at this tragic time.

With the death of the parents, the child’s maternal grandmother in the Philippines became the guardian. She gave a Power of Attorney (“POA”) to the Aunt.

The Aunt went to the bank, which confirmed that there was indeed an account in the deceased mother’s name with HK$28,000 in it. The bank advised her to approach the Home Affairs Department (“HAD”). She did so.

The HAD asked for the death certificate and the POA. When these were produced, HAD then said they could not help, and directed the Aunt to the Probate Registry.

At the Registry she was advised to consult a solicitor as the matter was complicated.

She was informed too that the Official Administrator could deal with an estate of up to HK$150,000 and the Home Affairs Bureau could deal with an estate of up to HK$50,000. However, neither of these facilities was available in cases such as this one, since it is said to involve complicated issues of law such as the deceased having died domiciled outside of Hong Kong.

An affidavit was required from a lawyer in the deceased’s home country as to who was entitled to administer the estate of the deceased there.

Despite the sole beneficiary being the only child of the deceased couple, the Aunt was informed that the Probate Registry would require evidence of which parent had died first, mother or father. They would also require information concerning any other relatives of the deceased couple, although there is only ever one child of the family.

As the orphan was only a 10 year old, a guardian would have to be appointed under the Non-Contentious Probate Rules and also consideration will have to be given as to whether an application should be made under Section 36 of the Probate and the Administration Ordinance (Cap. 10). Authenticated death certificates of both parents and an authenticated marriage certificate together with the authenticated birth certificate of the child would also be required.

Further complications included the need for at least two Hong Kong residents to act as sureties if Letters of Administration were to be granted. Further, the funds would be put in a trust until the child reaches the age of 21.

The Aunt and her employer were amazed at the complexity of this process for what should be a simple matter of a small amount of money for an orphaned child.

One appreciates that where there is an estate with a substantial amount of money involved, there must be an ordered and structured approach to dealing with administration issues.

However, in a case such as this, surely a system could be devised to make a deceased worker’s savings more easily available.

 

By Melville Boase, Consultant Boase Cohens & Collins