Probate

What “Probate” Means

When a person passes away, it makes sense that his/her debts must be paid and his/her real or personal property distributed. The process by which this is done is called “Probate.”

In reality, how this process works generally depends upon whether or not a person died testate (with a will) or intestate (without a will).

Probate with a Will

If the person died with a will, then the specific provisions of the will usually control what happens to the decedent’s (the person who passed away) real and personal property. There are some important instances when the will does not govern what happens to a decedent’s real or personal property.  There are also less cumbersome procedures available for estates with less legal and financial issues.

Probate without a Will

If a person died without a will, then New Hampshire law determines what happens to the decedent’s real and personal property. As with wills, though, there are important instances when New Hampshire law will not always control. Intestate estates with less legal and financial issues can be probated under more streamlined procedures.

Executor or Administrator

Who is responsible for paying the decedent’s debts and distributing his/her real and/or personal property likewise depends upon whether or not a person died testate or intestate.

If the person died with a will, it names the individual who will do these things. This individual is called the “executor.”

If a person died without a will, then the probate court determines who will assume this role. Usually a family member or close friend of the decedent steps in. This individual is called the “administrator.”

“Executors and Administrators regularly consult with New Hampshire attorneys to clarify their roles and responsibilities. The decedent’s estate is usually responsible for paying for the attorney’s advice or assistance.”

Duties and Responsibilities of Executor/Administrator

Once the court appoints the executor or administrator (a bond is required, among other things), he/she assumes the many duties and responsiblities which these positions require.

The order in which these duties/responsibilities are performed is controlled by state law. Generally, the executor/adminstrator has the decedent’s estate appraised or valued, pays any outstanding debts/taxes, notifies individuals who may have a beneficial interest in the estate, and distributes the decedent’s real or personal property. Court approval is required prior to undertaking some of these steps.

Closing the Estate: Final Accounting and Summary Administration

There are generally two ways a decedent’s estate can close under New Hampshire law.

First, the executive or administrator can file a motion for summary administration six months after he/she is appointed. In order for this motion to be granted, all of the decedent’s debts and taxes must already be paid and all parties with a beneficial interest in the decedent’s estate must consent.

If these conditions are met and the court grants the motion, then the estate is closed without any further court action (written receipts from those parties who receive cash, property or assets from the estate must be still be filed with the court).

Second, the executor or administrator can file a final accounting. A final accounting is essentially a very detailed report which gives the court a status on all major aspects of the estate.

A final accounting can be brought anytime up to twelve months after the executor’s/administrator’s appointment. If the court accepts the final accounting, then the amounts remaining in the estate are disbursed and the estate is closed.

If the estate is still open one year after the executor’s or administrator’s date of appointment, then an annual accounting is due. The annual accounting is the same as the final accounting, except that the estate is not closed thereafter. Rather, the estate remains open after the annual accounting until it is appropriate for a final accounting to be done.

Note of Caution

It is imporant to understand that what is written above is a very basic summary of a complex procedure. Executors and Administrators regularly consult with attorneys to clarify what the law requires of them. The decedent’s estate is usually responsible for paying for the attorney’s advice or assistance.

Contact

Dover Office

T.W. Stevens Law Firm, pllc
340 Central Avenue, Suite 203
Dover, NH 03820

Ph: (603) 749-6400
Fax: (603) 749-6401

Portsmouth Office

T.W. Stevens Law Firm, PLLC
101 Market Street
Portsmouth, NH 03801

Phone: (603) 749-6400
Fax: (603) 749-6401

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