Probate
Compassionately Helping You Navigate Through the Probate Process
Losing a loved one is hard enough. Suddenly being thrust into what can quickly become a confusing legal process of forms and deadlines, riddled with traps and pitfalls, is not what anyone wants to deal with at such an emotional and difficult time.
We can help guide and navigating you through this legal process so that you can focus on being there with and for your family.
What is Probate and When is it Necessary to file?
Probate is the legal procedure that occurs after a person dies (the “decedent”). It is the process by which the decedent’s will, if one exists, is validated/authenticated. It also takes account and inventory of the decedent’s assets, pay final bills and taxes, and distribute property and assets to the rightful heir or beneficiary.
Probate Filing Deadlines in Massachusetts and New Hampshire
In Massachusetts, the general rule is that an estate must be probated three (3) years after death. If a probate is not filed within this 3 year window, a late and limited formal probate option may be available (see Massachusetts Probate Options below).
In New Hampshire, the person named executor must file the will with the court within 30 days after death. Failure to file a probate within this 30 day period may result in civil and/or criminal penalties.
What type of Assets Avoid Probate?
Probate can be avoided with proper estate planning or titling of property. Some examples include:
- Jointly held property where there is a right of survivorship. This could be bank accounts or real estate held as “Joint Tenants with Rights of Survivorship.”
- Bank accounts held in trust, or payable on death (POD).
- Proceeds from a life insurance policy, bank account, or retirement account that names a beneficiary.
- Property held in a trust created by the decedent.
Probate Procedures in Massachusetts vs. New Hampshire
Massachusetts Probate Options
Depending on the particulars on one’s estate, Massachusetts offers four options for filing probate:
Informal probate is generally handled by a magistrate rather than a judge, and there are no required hearings. This procedure is reserved for estates in which all the heirs and devisees agree to the distribution of the decedent’s estate. If there is disagreement, a formal probate will likely be required.
Informal probate is only available if:
- You have the original will;
- You have the official death certificate;
- You know the location and identity of all heirs and devisees;
- The person who will be appointed personal representative has priority for appointment;
- Any spouse, heir, or devisee that is incapacitated or a minor is represented by a conservator, or a guardian who isn’t the person filing for probate;
- The court hasn’t required supervised administration; and
- You don’t need a judge to sign an order or final decree for any reason.
Formal probate matters are typically heard by a judge and may involve 1 or more court hearings. You might need to file a formal probate for several reasons, including:
- To object to an informal probate;
- If the will is a copy or has handwritten words added or crossed out;
- The terms of the will aren’t clear;
- You need supervised administration. This means that the court would have to approve everything the personal representative wants to do before it is done. Supervised administration extends until someone enters an order that approves distribution of the estate and discharges the personal representative or until another order ends the proceeding;
- The court needs to appoint a Special Personal Representative;
- Incapacitated persons or minor heirs or devisees need to be represented;
- The personal representative doesn’t have priority for appointment;
- The petitioner is a creditor or public administrator;
- Informal probate isn’t available; or
- A judge must sign an order or final decree for any reason.
Voluntary Administration is a simplified process for an estate with few assets and no real estate. It is available whether or not the decedent left a will. To be eligible for voluntary administration:
- The decedent must have been a Massachusetts resident;
- The decedent must have left an estate that consists entirely of personal property valued at $25,000 or less (excluding the value of a car);
- 30 days or more have passed since the decedent’s death;
- The petitioner must be an interested person, but doesn’t need to be a resident of Massachusetts. For voluntary administration, a creditor isn’t considered an interested person. If an interested person is a minor, the minor’s parents can’t file on behalf of the minor without court authority to do so. If the decedent was receiving services from the Department of Mental Health (DMH), the Department of Developmental Services (DDS) or the Division of Medical Assistance (DMA) when they died, the petitioner can be any person designated to act as a Voluntary Personal Representative (VPR) of the estate of the person by DMH, DDS or DMA; and
- Another probate proceeding can’t be pending
A VPR’s authority is limited and doesn’t lead to an official court appointment.
Late and Limited Formal Probate can be filed for several reasons, including:
- The decedent died on or after March 31, 2012;
- No original estate proceeding has happened within 3 years of the death; and
- You only need a formal proceeding to confirm ownership of probate assets.
The court may accept a late and limited formal probate petition to:
- Enter the decedent’s will to formal probate and find out who the heirs and devisees are
- Find out if the decedent died without a will and who the heirs are
- Appoint a personal representative to administer the estate, including a person designated as a public administrator, in a supervised or unsupervised administration
- Appoint a special personal representative until a personal representative is appointed in the formal proceeding
A late and limited appointed personal representative cannot get a license to sell the decedent’s real estate. The personal representative can only confirm ownership of probate assets in the successors and pay administration expenses.
New Hampshire Probate Options
New Hampshire offers two main options to file probate: Waiver of Administration and Full Administration. There is no separate filing/administration procedure for small estates, but if the value of the estate is $25,000 or less, only a fiduciary bond is required (meaning no corporate bond is required). If the value of the estate is $10,000 or less, there is also no publication requirement.
Waiver of Administration is, with exception, available whether the decedent passes away testate (with a will) or intestate (without a will). The benefit of this form of Administration is that no bond, estate inventory, nor asset accounting is required.
Pursuant to N.H. Rev. Stat. Ann. § 553:32, Waiver of Administration is available:
(1) Whenever a decedent dies testate and an individual is named in the will as the sole beneficiary of the decedent’s estate and is appointed to serve as administrator.
(2) Whenever a decedent dies testate and all individuals named in the will as beneficiaries of the decedent’s estate are appointed to serve as co-administrators or any appropriate person is appointed to serve as administrator with the assent of all such beneficiaries.
(3) Whenever a decedent dies testate, a trust is named in the will as the sole beneficiary of the estate, and any appropriate person, including one or more trustees of such trust, is appointed to serve as administrator with the assent of all such trustees.
(4) Whenever a decedent dies intestate and an individual, including a surviving spouse, is the sole heir of the decedent’s estate and is appointed to serve as administrator.
(5) Whenever a decedent dies intestate and all heirs of the decedent’s estate, including a surviving spouse, if any, are appointed to serve as co-administrators or any appropriate person is appointed to serve as administrator with the assent of all such heirs.
(6) Whenever, in the discretion of the court, the court determines it is appropriate under the circumstances.
Full Administration is available in all cases, regardless of whether Waiver of Administration is available (see above). This is the traditional manner of administering an estate.