When someone passes away, the property they leave behind is known as their “estate.” Probate is the process through which a decedent’s estate is legally transferred to their beneficiaries and heirs. The Probate Court has jurisdiction over the process, and the provisions that govern the process are found in the New Hampshire Code, NH Rev Stat § 547. Generally, probate takes about 8-12 months. However, if the estate is complicated, it can take substantially longer. If the estate is small and uncomplicated it may qualify for special, simpler procedures.
The first step in the process is the filing of the will at the clerk’s office of the Probate Court in the county in which the decedent was a resident at the time of their death. Typically, the person who the decedent named as executor in their will is the person who files the will and petition.
Once the executor is formally appointed by the Probate Court and the will is admitted to probate, the executor is responsible for completing the tasks necessary to settle the decedent’s estate and distribute its assets. These executor duties and responsibilities include:
- Inventorying the estate. The executor must identify the assets that are part of the decedent’s probate estate and create an inventory. The inventory should include the value of each asset.
- Paying bills and taxes. The executor must notify creditors that the probate case has been opened and allow them time to file claims. The executor is required to use estate assets to pay substantiated claims that were timely filed as well as expenses of administration. The executor must also pay outstanding taxes owed.
- Distributing property. Once debt, expenses, and taxes are paid, the executor must distribute assets to the beneficiaries.
No matter how closely the rules are followed, the estate administration process may not be free of complications. One common complication is litigation. Beneficiaries, fiduciaries, creditors, and other interested parties may disagree with aspects of the process and initiate litigation to sort out the disagreement. For example, a disinherited family member may believe that the will is fraudulent and initiate a will contest to prevent it from being probated. The executor and a beneficiary may interpret specific terms of the will differently and request that the court resolve the difference. A beneficiary may question the way the executor is managing the estate and demand an accounting.
Regardless of the issue, any probate dispute has the potential to significantly delay the process. It can also cause added expense to the estate and as a result reduce the amount available to ultimately distribute to beneficiaries.
Not everyone leaves a will. If a decedent does not leave a will or if the will is declared invalid as the result of a will contest, the court will deem the decedent intestate. This does not mean that the estate escapes probate. It means that the court will have to look at New Hampshire’s law of intestate succession to determine who is entitled to receive the decedent’s property. NH Rev Stat § 561:1. A decedent’s next of kin are the surviving spouse and children. In the absence of either, the decedent’s parents are entitled to inherit followed by siblings.
Waiver of Administration
With the waiver of administration process, a sole beneficiary of a decedent’s estate has the option of avoiding the formal administration process and instead file a request for asset distribution. The request must include a description of the real property in the decedent’s estate and a statement that estate debts have been paid. To qualify for this process, the estate must meet one of the following conditions:
- The decedent left a will naming the surviving spouse as the sole beneficiary
- The decedent left a will naming an only child as the sole beneficiary and there is not a surviving spouse
- The decedent left a will naming a parent as the sole beneficiary and there no surviving spouse or children
- The decedent left a will naming both parents as the sole beneficiaries and there are no surviving spouse or children
- The decedent left a will and a trust created by the decedent and it is named as the sole beneficiary
- The decedent died intestate and the surviving spouse is the sole heir
- The decedent died intestate and the only child is the sole heir and there is not a surviving spouse
- The decedent died intestate and a parent is the sole heir and there are no surviving spouse or children
- The decedent died intestate and both parents are the sole heirs and there are no surviving spouse or children
NH Rev Stat § 553:32