Losing a loved one is always an emotional experience, and for families left behind, the practical and legal matters that follow can be equally difficult. One of the most important legal processes that occurs after someone’s passing is probate. Probate ensures that the decedent’s assets are properly identified and valued, debts are paid, and the remaining property is distributed to heirs or beneficiaries. While probate often moves along smoothly, it can take much longer than anticipated. When probate is delayed, people understandably wonder why it is taking so long to close the estate. To provide clarity, the attorneys at Legacy Care Law Firm explain what might cause a probate delay in New Hampshire.
Understanding the Probate Process
Probate is the legal procedure that follows a person’s death and serves several important functions. First, it ensures that all property owned by the deceased is secured, inventoried, and assigned a fair market value. Second, probate authenticates the Last Will and Testament, if one exists, and provides a venue for any legal challenges to that Will. Third, the process allows creditors to file claims against the estate for debts that must be settled. Finally, probate supervises the lawful transfer of remaining property to heirs or beneficiaries in accordance with either the Will or state intestate succession laws. Because probate involves both court oversight and statutory deadlines, the process is often highly detailed and time sensitive. The court must ensure that each step is properly completed before the estate can be closed.
Who Is Responsible for Administering Probate?
In New Hampshire, the person who manages the estate during probate is called the “Executor” if they were nominated in the decedent’s Will. If the individual died without a Will (known as “dying intestate”), the court appoints an “Administrator” to serve in a similar capacity. The Executor or Administrator’s duties include filing the Will with the court, collecting and valuing the assets, notifying heirs and creditors, paying outstanding debts, and ultimately distributing the remaining property. If the named Executor is unwilling or unable to serve, or if there is no Will at all, the court may select another qualified individual. Typically, this could be a spouse, adult child, or another close relative. If no one petitions to be appointed, the court may choose an outside professional such as a local attorney.
Must Every Estate Go through Formal Probate?
Because formal probate can be costly and time-consuming, people understandably want to avoid it when possible. Fortunately, New Hampshire law provides alternatives for certain estates. One such alternative is known as Waiver of Administration. This streamlined procedure allows for a more efficient process if specific conditions are met. An estate may qualify for Waiver of Administration in the following circumstances:
- The decedent’s Will leaves all property to a surviving spouse, and that spouse is appointed to handle the estate.
- All individuals named in the Will agree to appoint one administrator or agree to serve jointly.
- A trust is the sole beneficiary, and the court appoints the trustee (or co-trustees).
- The decedent died intestate, leaving only one heir who is appointed administrator.
- There are multiple heirs who agree to serve together as administrators or who consent to a single administrator.
- The probate court, using its discretion, determines that a waiver is suitable for the circumstances.
When an estate qualifies for this process, the Administrator must still wait six months to ensure that creditors have time to submit claims. After those claims are addressed, a Waiver of Administration Statement may be filed with the court, after which the estate can be closed and the estate assets can be distributed. While this method still takes time, it is considerably faster and less expensive than formal probate.
Do All Assets Go through Probate?
Not every asset owned by the deceased must pass through probate in New Hampshire. Certain types of property bypass probate altogether and transfer automatically. For example, property owned jointly with rights of survivorship passes directly to the surviving co-owner. Financial accounts with a “payable on death” (POD) or “transfer on death” (TOD) designation also avoid probate, transferring directly to the named beneficiary. In addition, assets held in a properly funded trust are distributed according to the terms of that trust, entirely outside the probate system. Understanding which assets are probate and which are non-probate is critical for Executors and Administrators. Mistakes in this area can cause unnecessary delays and even potential disputes. Working with an experienced probate lawyer can help ensure proper classification and distribution of assets.
Causes of a Probate Delay in New Hampshire
Even when everything appears to be simple and straightforward, probate can feel slow to surviving loved ones and others involved in the process. Sometimes, there are true delays that are causing the probate process to move slower than it should. In New Hampshire, there are several common causes of probate delays, including:
- Intestate Estates: When a person dies without a valid Will, the probate process is significantly more complicated. Without an Executor named by the deceased, the court must appoint an administrator, an additional step in the process that can cause a delay. Furthermore, the court must determine who the rightful heirs are, which often involves extensive family research, notifications, and possible hearings. If heirs live in different states or are difficult to locate, the process takes even longer. Intestate estates also frequently require the sale of property so that the proceeds can be divided according to state succession laws, which adds further time.
- Problems with Executor or Administrator Selection: The choice of who manages the estate can dramatically impact how quickly probate progresses. A diligent, organized Executor can keep the case moving, while an unqualified or uncooperative one may cause delays. Disputes between family members about who should serve in this role can also extend the timeline, as the court may need to hold hearings or appoint someone neutral to avoid conflict.
- Lack of Liquid Assets: During probate, creditors have the right to submit claims for payment. Estate taxes and administration costs must also be covered. If the estate does not include enough liquid funds (such as cash or easily accessible bank accounts), the Executor may need to sell real estate, vehicles, or other valuable property to raise money. Selling assets, particularly real estate or business interests, often takes months, especially if the market is slow or there are disagreements about value.
- Complicated or Valuable Assets: The more complex an estate, the longer probate generally lasts. Assets such as commercial real estate, closely held businesses, intellectual property rights, or high-value collections require specialized appraisals and careful management. If disputes arise over how to handle these assets, litigation may ensue, adding significant time to the probate timeline.
- Will Contests and Legal Challenges: One of the most common reasons for a probate delay is because someone challenges the validity of the Will. A family member may allege that the decedent lacked capacity, was unduly influenced, or that the Will was improperly executed. These disputes often lead to costly litigation and can delay probate for years. While it is impossible to eliminate all risk of litigation, individuals can take steps during their lifetime to reduce the likelihood of a successful challenge. For instance, a detailed medical examination before signing a Will can help establish capacity, and a “no-contest clause” can discourage frivolous challenges.
Can We Help You with a Probate Delay in New Hampshire?
For more information, please join us for an upcoming FREE seminar. If you would like assistance navigating a probate delay in New Hampshire, contact our estate planning 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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