Question 1: What is meant by Probating an Estate?
Answer: Probating an Estate involves the process by which an individual who dies with assets solely in their name, and not passing otherwise by joint tenancy or joint ownership, has their estate administered in the probate court of the county in which the person resides at the time of their death in order to pass their assets to their beneficiaries or heirs. This administration process involves the filing of a "petition for administration" with the appropriate probate court. Such an administration can occur with or without a will.
A: A fiduciary is a person who is appointed by the Court and considered to be in a position of special trust such as an executor, trustee, guardian or conservator.
Q 3: What happens if a person dies and doesn't have a will?
A: Under New Hampshire law individuals dying without a will and possessing solely owned assets at the time of their death, must have their estate (referred to as an intestate estate) administered in order to allow their assets to be dispersed to their heirs according to New Hampshire law. (Heirs generally are a person's spouse, parents, children or more distant blood relatives.) Obviously having a will, which designates specific beneficiaries and an executor, provides for greater control and certainty as to who will receive your assets at the time of your death.
A: It is always advisable to review your will on a regular basis. By doing so, you can ensure that your will meets all present legal requirements. In addition, such a review will allow you to ensure that individuals named in prior wills who have passed away, or who are no longer a desired beneficiary due to changes in circumstances, are removed. A review is especially helpful if the will is from a foreign jurisdiction. While most, if not all wills from foreign jurisdictions are honored in New Hampshire, administration of an estate utilizing this out-of-state will may be considerably more complicated, time consuming and expensive due to the legal requirements in the State of New Hampshire.
Q 5: What are the responsibilities of an executor?
A: An executor, a person who is named by a decedent in their will to manage the administration of their estate, is responsible for administration of the estate in accordance with New Hampshire law for the benefit of those named as beneficiaries in the will. This involves mustering assets, securing and safeguarding real estate and personal property, working with the designated appraiser to place a value on estate assets and to otherwise follow the procedures required under New Hampshire law for the administration of an estate. Additional requirements involve paying debts, collecting money or other tangible property owed to the estate, ensuring that taxes are paid, selling real estate and personal property where applicable, preparing a final account for approval by the Court and interested parties and ultimately distributing any net estate assets in accordance with the terms of the will.
Q 6: How long does it take to administer an estate in New Hampshire?
A: The general rule is that estate administration takes between six months and one year. Under New Hampshire law there are provisions that allow for summary or expedited administration which takes approximately six months. A substantial portion of this time is allotted to afford creditors the opportunity to file claims against the estate during the first six months of administration. The balance of the administrative time is allocated toward paying various bills, selling real estate and preparing and filing a final account and distributing assets.
Q 7: I can't locate my loved one's will. What do I do now?
A: If after a diligent search, including a search of various banks for the existence of a safe deposit box containing the will, you are unable to locate your loved one's will it will be necessary for you to administer the estate as an intestate estate. An intestate estate is one where no will exists or where one cannot be found. Under such circumstances, an interested party will request that they be the administrator of the estate and will proceed with the administration process as described above and will then distribute the net assets of the estate at the end of the process to the heirs at law as defined under New Hampshire statute. Under some limited circumstances, the Court will allow the administration of an executed copy of a will if the original cannot be found.
A: An heir at law is someone who is designated under New Hampshire statute to be the beneficiary of an intestate estate by virtue of that individual's blood or marital relationship with the decedent. A person who is married who dies has as his primary heir at law their surviving spouse. After the surviving spouse, the next heirs at law are children, parents of the decedent, siblings and then less closely related blood relatives such as cousins and aunts and uncles.
Q 9: What happens to my old will if I get a new will?
A: Each time you prepare a new will it contains language which revokes or cancels all prior wills.
Q 10: Who can be named an executor of my estate?
A: Any responsible person over the age of 18 can be nominated to be the executor of an estate subject to approval by the probate court.
Q 11: Where should I store my will?
A: The primary concern when storing a will is to prevent it from being lost or stolen and especially from damage due to fire. Use of a bank safe deposit box, or in the alternative a home fireproof safe or file cabinet, is recommended. It is highly advisable that family members and/or the executor knows the location of your safe deposit box or safe and the location of the key or combination to it. Depending on the circumstances, it may be wise to consider naming the executor as an authorized person to access the contents of your safe deposit box.
Q 12: Do beneficiaries of my estate have to pay taxes on what they receive?
A: Under New Hampshire law, beneficiaries of an estate are not taxed on what they inherit. Any taxation which occurs is the responsibility of the estate prior to distribution to the beneficiaries.
A: Under New Hampshire law, before a beneficiary named in the will can receive their inheritance, the funeral bill, administrative costs (including fees for the court, attorney's fees, bond and appraisal), tax document preparation, and fiduciary fees for the executor need to be paid. The next priority of payment is to secured creditors such as a mortgage holder and medical entities or persons providing care for the "last illness." Third are payments to unsecured creditors such as credit card companies and other vendors of services. Finally, if there are resources left over in the estate after payment of these priority debts, the remainder will be divided according to the terms of the will.
A: If all of the decedent's property was owned jointly as described above, and there are no other assets owned solely in the name of the decedent, administration of the estate is not required. Recording of the death certificate and the original will at the Registry of Probate is advisable.