Probate is the legal\nprocess of settling a deceased person\u2019s estate and transferring the remaining\nassets to devisees or heirs. Title LVI of the New Hampshire Revised Statutes\ngoverns the probate process in New Hampshire.<\/p>\n\n\n\n\n\n\n\n
Property subject to\nprobate includes assets titled in the decedent\u2019s name alone and realty vested\nas a tenancy in common with others. Property vested in a trust, survivorship\ninterest, and assets titled with a beneficiary designation transfer outside of\nprobate. <\/p>\n\n\n\n
The probate division of\nthe circuit court of the county in which the decedent resided at the time of\ndeath has jurisdiction in administration of the estate. Probate proceedings\nbegin with petition to the appropriate court for probate (RSA 550:1). Wills, if\nany, must be filed along with the death certificate in the probate court and\ndeclared valid, and executors must provide notice to the within named heirs (RSA\n552:2, 552:15). RSA 550:4 establishes the various cases which do not require\nnotice.<\/p>\n\n\n\n
In New Hampshire,\npersons can petition for probate of a will and administration of an estate in\ncommon form (RSA 552:6) or solemn form (RSA 552:7). Common form, as the name\nsuggests, is the typical form for probating uncontested wills. <\/p>\n\n\n\n
Upon petition, the\ncourt appoints an administrator by issuing Letters of Appointment; RSA 553:2\nestablishes the priority of persons to be granted administration of the estate.\nIn New Hampshire, the term \u201cadministrator\u201d may refer generically to either an\nexecutor or an administrator (RSA 553:1). An executor is the fiduciary named in\na decedent\u2019s will, and an administrator is the fiduciary selected by the court\nwhen a decedent dies intestate or when the named executor cannot serve. An\nestate is said to be intestate when the decedent dies without a will.<\/p>\n\n\n\n
After receiving Letters,\nthe administrator takes inventory of the estate and pays the estate\u2019s debts. He\nor she may be required to sell the estate\u2019s assets to pay debts. Typically,\npersonal property is sold before real property, though the decedent\u2019s will may\ndirect which assets are to be sold to pay debts. <\/p>\n\n\n\n
Unless the will grants a\npower of sale, the administrator must apply for a grant of license to sell real\nestate when the decedent\u2019s personal property is insufficient to pay the debts\nof the estate (see Title Standard 7-19). After the administrator gives oath, he\nor she may make the sale according to the terms of his or her license, and\nexecute and deliver a conveyance of the real property to the purchaser (RSA\n559:11). Proceeds from the sale, less the deductions for debts, taxes, and\nadministration expenses, are distributed in accordance with RSA 559:19. <\/p>\n\n\n\n
Administrators may also\nexecute a fiduciary deed with the consent of heirs (see Title Standard 7-24).\nThe deed conveys title to a purchaser free from all claims of creditors of the\ndecedent and of all other persons claiming under the decedent or under his will\n(RSA 559:18). <\/p>\n\n\n\n
If sale of realty to\npay the estate\u2019s debts is not required, title to the real estate devolves to\nthose designated to receive it by will or by law. The administrator must\npetition the court for a decree of distribution. RSA 561:1 addresses the\ndistribution of an intestate estate. To show title has devolved, the\nadministrator executes and records a notice to towns and cities pursuant to RSA\n554:18-a with the appropriate county assessor and the probate court.<\/p>\n\n\n\n
The statutory form of a\nNew Hampshire fiduciary deed is codified at RSA 477:30. Fiduciary deeds convey\nrealty in fee simple to the named grantee with the following covenants: that\nthe grantor (fiduciary) was duly authorized to make the sale of the premises;\nthat the grantor has complied with statutory requirements of sale; and that the\ngrantor will warrant and defend the title against the lawful claims of persons\nby, from, or under him or her in his or her representative capacity.<\/p>\n\n\n\n
The fiduciary deed\nshould identify the grantor\u2019s capacity (executor or administrator, in the case\nof a transfer from an estate) and recite his\/her authorization to make the\nconveyance. The deed should also state the consideration made for the transfer,\nand any relevant exemption from New Hampshire\u2019s realty transfer tax. A\ndeclaration of consideration must accompany all transfers of realty in New\nHampshire, unless an exemption is noted on the face of the deed. As with any\nconveyance of realty, include a complete legal description of the subject\nparcel. <\/p>\n\n\n\n
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.<\/p>\n\n\n\n