Probate
The word “probate” has Latin origins and is roughly defined as to “try”, to “test”, or to “prove”, and for hundreds of years has been used to refer to the legal process of validating a person’s Will and ensuring the proper distribution of their assets. Every state has a dedicated probate court, and over time the purview of these courts has grown and now often includes oversight of guardianships, certain trusts, name changes, some land disputes, and sometimes adoptions.
As with all legal proceedings, the costs and effort involved with a probate case largely depends on the degree of controversy the matter engenders. Should a person’s beneficiaries and creditors be few or cooperative, the probate process can resolve in as few as about eight months and cost only a few hundred dollars (not accounting for attorney or executor fees). Should significant controversy arise, however, a probate case can linger for many years and cost many thousands of dollars. That said, most probates involve little or no controversy and tend to wrap-up within 15 months.
In New Hampshire, the probating of a person’s estate follows either a “full administration” or a “waiver of full administration” track.
Full Administration
A full administration has four general stages: (1) the Petition; (2) the Inventory; (3) the Administration; and (4) the Accounting.
In the Petition stage, a person wishing to be responsible for settling a deceased individual’s affairs (called either an executor or an administrator in New Hampshire, depending on whether the deceased left a Will or not) files a “Petition for Estate Administration” with the probate court for the county in which the deceased resided. In this Petition, the fiduciary (a general terms for either an executor of administrator) provides the probate court with his or her contact information as well as the mailing addresses of the deceased’s close relatives as well as their beneficiaries named in the Will. The fiduciary also gives an estimate of the value of the deceased’s probate assets.
Once received, the probate court will send notice to the relatives and beneficiaries informing them that the fiduciary seeks responsibility for the estate and will allow these folks an opportunity to object. Should no objection be made, the fiduciary will usually receive a Certificate of Appointment within 8 weeks that confirms the fiduciary may take possession of and manage the probate assets. Often, the probate court will require the fiduciary obtain a bond at this stage, which is essentially an insurance policy against the fiduciary’s misappropriation of the estate.
Within three months of receiving the Certificate of Appointment, the fiduciary must file a detailed Inventory of all probate assets of the estate. This requires the fiduciary to investigate, safeguard and evaluate the deceased’s property as quickly as practicable. This Inventory must be provided to the beneficiaries and they are again given an opportunity to object to the inclusion/exclusion and valuation of any asset.
The next step, which we generally refer to as the Administration stage, involves settling the deceased’s final debts, filing tax returns, and the preparing the probate assets for distribution (e.g. consolidating accounts and selling real estate).
Finally, after the Administration stage is complete, the fiduciary must ordinarily prepare an Accounting, which is a detailed report of all monies and assets the fiduciary has managed on the estate’s behalf. This Accounting is reviewed by the probate court and shared with the beneficiaries, who are given an opportunity to object. Once the probate court is satisfied by the fiduciary’s Accounting, it will order the fiduciary to make proper distribution of the probate assets and to obtain and file Receipts executed by the various beneficiaries acknowledging delivery of their inheritance. Upon the completion of this task, the probate court will then close the matter and the fiduciary will be relieved of further duties.
Waiver of Full Administration
The Full Administration process forces a fiduciary to diligently report all assets, expenses, and distributions from an estate and provide the probate court, beneficiaries, and creditors a ready opportunity to contest any perceived malfeasance. While this degree of oversight may be appropriate for certain estates, for others it causes unnecessary cost. For this reason, generally estates with only a single beneficiary or those with multiple beneficiaries in agreement can qualify for a “Waiver of Full Administration.”
A probate by Waiver still involves filing a Petition for Estate Administration, but once appointed, the fiduciary is not obligated to file an Inventory or an Accounting. Rather the fiduciary is charged with administering the estate just as he or she would during a full administration, albeit without the probate court’s supervision. Ultimately, the probate court will expect the fiduciary to settle the deceased’s affairs and merely file a simple statement to that effect.
What We Offer
We seek to help folks navigate the probate process quickly, efficiently, and affordably. We always start with a consultation to assess whether opening a probate case is even necessary or advisable, to spot any possible complications early, and to formulate a plan and timeline. Should we and our client agree to begin a probate case (or for our office to assist a client with a probate already underway), KSW Law strives to keep the costs of our services to a minimum by educating and encouraging our client to perform many of the tasks of a fiduciary themselves. Of course, should a client wish or the situation demand, we are glad and prepared to meticulously guide a client through the entire probate process.
Unlike our estate planning work, we charge an hourly rate for our probate services. For more information on our current hourly probate work rate and for the cost of a probate consultation, please contact our office.
