Serving as the Executor of a New Hampshire estate is often far more complicated than anticipated. In addition to coping with the death of someone close to you, you may suddenly become responsible for identifying and protecting property, addressing creditor claims, handling taxes, maintaining real estate, complying with court requirements, and eventually distributing assets to beneficiaries. As Executor, you occupy a fiduciary position, which means you must administer the estate in accordance with your legal obligations and the interests of the estate and its beneficiaries. Mistakes can delay probate, diminish the value of an inheritance, generate disputes, and potentially expose you to personal liability. To help you avoid making them, the attorneys at Legacy Care Law Firm explain five common mistakes Executors make during the probate of a New Hampshire estate.
Failing to Fully Understand Your Duties as Executor
Being named Executor in a Last Will and Testament is not simply an honor bestowed by the Testator. It is a significant legal responsibility, and one of the most consequential mistakes you can make is accepting the appointment without understanding what estate administration actually requires. As Executor, you may be responsible for gathering and managing estate assets, addressing debts and taxes, complying with probate requirements, and ultimately distributing property according to the terms of the Will. Those responsibilities often require considerably more time and attention than an Executor initially expects.
Once you begin administering an estate, you are acting on behalf of the estate rather than for your personal benefit. Estate funds should be kept separate from your own money, transactions should be carefully documented, and decisions should be based upon your fiduciary responsibilities rather than personal preferences. This distinction can become particularly important when you are both the Executor and a beneficiary. You may eventually be entitled to receive property from the estate, but your status as a beneficiary does not give you permission to disregard your responsibilities as Executor. Until property is properly distributed, you must administer it in accordance with the Will and applicable probate requirements.
The Will establishes the Testator’s wishes, but estate administration also involves legal and procedural obligations. For example, you may need to determine which assets are part of the probate estate, what debts must be paid, which tax matters require attention, and when distributions can safely be made.
An Executor who does not appreciate the scope of the position can inadvertently mismanage assets, overlook obligations, or make decisions that create problems later in the administration. For that reason, one of your first steps should be developing a clear understanding of your responsibilities before you begin transferring, selling, or distributing estate property.
Failing to Secure and Protect Estate Property
Your responsibility for an estate does not begin and end with paperwork. You must also protect the property entrusted to your care which may be vulnerable in the immediate aftermath of the Testator’s death. A residence may be vacant. Vehicles may remain parked and unused. Valuable jewelry, artwork, collectibles, financial documents, or other personal property may remain inside the home while family members have keys or otherwise have access to the property. As Executor, you should promptly secure estate property, restrict unauthorized access, inventory assets, and make certain that appropriate insurance remains in place. These responsibilities are particularly important because property can disappear quickly after a death.
Family members sometimes assume that taking personal items is harmless because they believe those items will eventually belong to them, but that assumption can create serious problems. Until ownership has been properly determined and distributions have been authorized, beneficiaries should not simply remove property from the estate. Even items with modest market value can carry substantial sentimental importance, making missing personal property a frequent source of family disputes.
You should also determine whether property requires ongoing maintenance. A vacant home may need heating during the winter, lawn or snow removal services, repairs, utility payments, or other attention. Vehicles may require secure storage. Rental property may continue generating income and expenses that must be managed.
Protecting estate property also means preserving its financial value because allowing an asset to deteriorate unnecessarily can reduce the inheritance ultimately available to beneficiaries. Given that you are serving in a fiduciary capacity, a preventable loss may raise questions about whether you fulfilled your obligations.
Distributing Property Before Addressing Debts and Taxes
Beneficiaries naturally want to know when they will receive their inheritance and as Executor, you may also want to complete probate as efficiently as possible. Distributing assets prematurely, however, can create one of the most serious problems encountered during estate administration. The fact that the Will identifies beneficiaries does not mean that estate assets are available for immediate distribution. Before beneficiaries receive their inheritances, you must address valid debts and other financial obligations of the estate. These obligations may include taxes, medical bills, credit card balances, funeral expenses, and other outstanding debts.
Under some circumstances, an Executor who improperly distributes estate assets without reserving sufficient funds for legitimate obligations could face personal financial consequences. You should therefore develop a reasonably complete picture of the Testator’s financial affairs before making significant distributions. Review available financial records, statements, bills, tax documents, loan information, and other records that may reveal outstanding obligations. You should also understand and follow the procedures governing creditor claims instead of simply paying all claims submitted. Taxes must also be paid before estate assets are distributed to the heirs or beneficiaries of the estate. Depending upon the circumstances, tax obligations may relate to the Testator’s final tax matters or the estate itself.
Beneficiaries may become impatient, but your obligation as Executor is not simply to distribute property as quickly as possible. Your responsibility is to administer the estate correctly and make distributions when doing so is appropriate.
Assuming Probate Rules Are the Same in Every State
Another potentially costly mistake is relying on what you know about probate in another jurisdiction. Probate is governed substantially by state law, meaning procedures that apply elsewhere may not correspond with the requirements you encounter when administering a New Hampshire estate. Creditor procedures, property valuation requirements, court forms, filing requirements, and other aspects of probate can differ from one state to another.
This issue frequently arises when the Executor lives outside New Hampshire and has previously probated an estate in another state. Although the basic idea behind probate may be the same from state to state, there are differences and even relatively small procedural differences can matter. Probate administration involves deadlines, notices, valuations, creditor issues, court submissions, and other formal requirements. Using the wrong procedure or relying on an inaccurate deadline can delay administration and require additional work to correct the problem.
You should also recognize that an estate can involve more than one jurisdiction. If the Testator owned property outside New Hampshire, additional proceedings or legal considerations may arise. Real estate is particularly significant because property located in another state may implicate that state’s laws and procedures.
Mishandling Real Estate Belonging to the Estate
Real estate frequently represents one of the most valuable assets in a probate estate, making mistakes involving a home, rental property, vacation property, or land particularly consequential. As Executor, you may need to maintain and protect real estate for an extended period before it can be transferred or sold. Potential mistakes include allowing property to remain vacant without adequate upkeep or insurance, failing to obtain an appropriate valuation, and attempting to sell property without understanding applicable legal requirements.
Maintaining the property should be an immediate priority. A vacant house can deteriorate quickly if plumbing problems, roof damage, heating failures, storm damage, or other maintenance issues are ignored. New Hampshire winters can make timely attention to heating, snow removal, and weather-related maintenance particularly important. Property taxes, utilities, mortgage obligations, condominium assessments, or other recurring expenses may also continue during probate.
Rental property creates additional responsibilities. Tenants may continue occupying the property, rents may remain due, repairs may be necessary, and existing agreements may require attention. You should avoid treating income generated by estate property as personal funds simply because you are administering the estate. You may also need reliable information concerning the property’s value before determining how it should be handled. An inaccurate valuation can affect proposed distributions and create disagreements among beneficiaries, particularly when one beneficiary wants to keep the property while others prefer a sale.
Selling real estate can also provide numerous opportunities for an Executor to make costly mistakes. Before placing property on the market or accepting an offer, you should understand your authority and any legal procedures that apply, and take the time to document significant decisions, particularly if beneficiaries disagree about the appropriate disposition of the property.
Can We Help You Avoid Making Mistakes During the Probate of a New Hampshire Estate?
For more information, please join us for an upcoming FREE seminar. If you would like assistance to avoid making mistakes during the probate of a New Hampshire estate, contact our probate attorneys in our North Andover, Woburn, and Beverly offices at (978) 969-0331. Our Salem and Nashua, New Hampshire office can be reached at (603) 894-4141.
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