If you find yourself in charge of overseeing the probate of an estate for the first time, it can be an overwhelming prospect. On top of all the legal and financial issues involved in probate, you are likely grieving the loss of someone close to you. Nevertheless, if you were named as the Executor of the estate in the decedent’s Last Will and Testament it means that the decedent trusted you to administer his/her estate. To help get you started, the probate attorneys at Legacy Care Law Firm discuss navigating the New Hampshire probate process.
What Is Probate?
Probate is the formal name given to the legal process that follows the death of an individual. Probate serves several important purposes. First, probate ensures that the decedent’s assets are accounted for, secured, and valued. Second, probate authenticates the decedent’s Last Will and Testament and litigates any challenges to the validity of the Will. Probate also allows creditors of the estate to file claims and settle debts owed to them. Finally, probate oversees the legal transfer of estate assets to the new owners at the end of the process.
Who Oversees the Probate of an Estate?
If the decedent left behind a Last Will and Testament, the person named as the Executor in that document is who the decedent wanted to oversee the probate of his/her estate. The court must ultimately approve the Executor, and the person appointed is not required to accept the position, but usually the person named in the Will as the Executor is who handled the administration of the estate. If the decedent died intestate, or without a Will, the court must appoint an administrator to oversee probate. In that case, a family member or close friend may petition to be appointed. If no one petitions the court, the court will usually appoint a local attorney to be the administrator.
Is Formal Probate Required?
Formal probate can take a long time and may incur considerable expense. As such, avoiding formal probate is always desirable. In New Hampshire, an estate may qualify for an alternative to formal probate known as “Waiver of Administration.” To qualify for Waiver of Administration, one of the following must apply:
- The decedent’s Will names the surviving spouse as the sole beneficiary, and the spouse is appointed administrator of the estate.
- All beneficiaries named in the Will are appointed as co-administrators, or they all agree to the appointment of an administrator.
- A Will names a trust as the sole beneficiary and the court appoints the trustee as the administrator, or the co-trustees all agree to the appointment of an administrator.
- There is no Will and only one heir, who is appointed to serve as administrator.
- There is no Will, and all heirs are appointed as co-administrators, or they all agree to the appointment of an administrator.
- The court decides, in its discretion, that waiver of administration is appropriate.
If the estate qualifies for Waiver of Administration, you must wait six months and pay all approved creditor claims before you can close out probate. At that time, you can fill out a Waiver of Administration Statement for the court to approve. Once approved, the remaining estate assets can be distributed to beneficiaries and/or heirs.
Do All Assets Go through Probate?
Not all assets are part of the probate process in New Hampshire. These non-probate assets bypass probate and can be immediately distributed to beneficiaries or ownership automatically transfers by law to the new owner. The decedent’s interest in property owned jointly with rights of survivorship, for example, pass directly to the co-owner(s) upon the death of the decedent. The same applies to funds held in a financial account with a “payable on death” designation. Assets held in a trust at the time of death also bypass probate and can be distributed according to the terms of the trust agreement. If you are in charge of administering the estate, consult with an experienced probate attorney to ensure that you know which assets are part of probate and which assets bypass probate.
What Steps Should I Take If I Am in Charge of Probate in New Hampshire?
If you find yourself charged with probating an estate in New Hampshire, there are a few steps that almost every Executor/Administrator should take to get the probate process started, such as:
- Identify and secure estate assets.
- Locate the decedent’s Will and other estate planning documents.
- Consult with an experienced probate attorney.
- Petition the appropriate court to initiate probate.
- Establish date of death values for estate assets.
- Notify beneficiaries, heirs, and creditors that probate is underway.
Contact Our Probate Attorneys
For more information, please join us for an upcoming FREE seminar. If you have additional questions about navigating the New Hampshire probate process, 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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