Probate is the legal process of settling a deceased person’s estate and transferring the remaining assets to devisees or heirs. Title LVI of the New Hampshire Revised Statutes governs the probate process in New Hampshire.
Property subject to probate includes assets titled in the decedent’s name alone and realty vested as a tenancy in common with others. Property vested in a trust, survivorship interest, and assets titled with a beneficiary designation transfer outside of probate.
The probate division of the circuit court of the county in which the decedent resided at the time of death has jurisdiction in administration of the estate. Probate proceedings begin with petition to the appropriate court for probate (RSA 550:1). Wills, if any, must be filed along with the death certificate in the probate court and declared valid, and executors must provide notice to the within named heirs (RSA 552:2, 552:15). RSA 550:4 establishes the various cases which do not require notice.
In New Hampshire, persons can petition for probate of a will and administration of an estate in common form (RSA 552:6) or solemn form (RSA 552:7). Common form, as the name suggests, is the typical form for probating uncontested wills.
Upon petition, the court appoints an administrator by issuing Letters of Appointment; RSA 553:2 establishes the priority of persons to be granted administration of the estate. In New Hampshire, the term “administrator” may refer generically to either an executor or an administrator (RSA 553:1). An executor is the fiduciary named in a decedent’s will, and an administrator is the fiduciary selected by the court when a decedent dies intestate or when the named executor cannot serve. An estate is said to be intestate when the decedent dies without a will.
After receiving Letters, the administrator takes inventory of the estate and pays the estate’s debts. He or she may be required to sell the estate’s assets to pay debts. Typically, personal property is sold before real property, though the decedent’s will may direct which assets are to be sold to pay debts.
Unless the will grants a power of sale, the administrator must apply for a grant of license to sell real estate when the decedent’s personal property is insufficient to pay the debts of the estate (see Title Standard 7-19). After the administrator gives oath, he or she may make the sale according to the terms of his or her license, and execute and deliver a conveyance of the real property to the purchaser (RSA 559:11). Proceeds from the sale, less the deductions for debts, taxes, and administration expenses, are distributed in accordance with RSA 559:19.
Administrators may also execute a fiduciary deed with the consent of heirs (see Title Standard 7-24). The deed conveys title to a purchaser free from all claims of creditors of the decedent and of all other persons claiming under the decedent or under his will (RSA 559:18).
If sale of realty to pay the estate’s debts is not required, title to the real estate devolves to those designated to receive it by will or by law. The administrator must petition the court for a decree of distribution. RSA 561:1 addresses the distribution of an intestate estate. To show title has devolved, the administrator executes and records a notice to towns and cities pursuant to RSA 554:18-a with the appropriate county assessor and the probate court.
The statutory form of a New Hampshire fiduciary deed is codified at RSA 477:30. Fiduciary deeds convey realty in fee simple to the named grantee with the following covenants: that the grantor (fiduciary) was duly authorized to make the sale of the premises; that the grantor has complied with statutory requirements of sale; and that the grantor will warrant and defend the title against the lawful claims of persons by, from, or under him or her in his or her representative capacity.
The fiduciary deed should identify the grantor’s capacity (executor or administrator, in the case of a transfer from an estate) and recite his/her authorization to make the conveyance. The deed should also state the consideration made for the transfer, and any relevant exemption from New Hampshire’s realty transfer tax. A declaration of consideration must accompany all transfers of realty in New Hampshire, unless an exemption is noted on the face of the deed. As with any conveyance of realty, include a complete legal description of the subject parcel.
Special circumstances may affect estate administration. Surviving spouses of decedents in New Hampshire, for example, have statutory rights, and may elect to take a statutory share of the estate greater than what is devised by a will. The surviving spouse may execute a waiver of the provisions of the will and homestead rights to take a statutory share and file the waiver with the probate court in the appropriate county. If realty is involved, the surviving spouse must file with the registry of deeds in the county where the subject property is situated.
The information provided above is not a substitute for legal advice. Consult a licensed attorney with questions regarding probate procedures in New Hampshire, as each situation is unique.