How to File an Estate in Probate Court for Paralegals
All rights reserved. These materials may not be reproduced without written permission from
NBI, Inc. To order additional copies or for general information please contact our Customer
Service Department at (800) 930-6182 or online at www.NBI-sems.com.
For information on how to become a faculty member for one of our seminars, contact the
Planning Department at the address below, by calling (800) 777-8707, or emailing us at
[email protected].
This publication is designed to provide general information prepared by professionals in
regard to subject matter covered. It is sold with the understanding that the publisher is not
engaged in rendering legal, accounting, or other professional service. Although prepared by
professionals, this publication should not be utilized as a substitute for professional service in
specific situations. If legal advice or other expert assistance is required, the services of a
professional should be sought.
Copyright 2008
NBI, Inc.
PO Box 3067
Eau Claire, WI 54702
46456 / 346001-100
Any West copyrighted materials that are included in this manual are reprinted with
permission.
How to File an Estate in Probate Court for Paralegals
Author
Susan J. Martin
Susan J. Martin is a paralegal with the law firm of Boynton, Waldron, Doleac,
Woodman & Scott, P.A. where she handles probate matters for estates in New
Hampshire, Maine and Massachusetts, estate planning and probate litigation. Ms.
Martin is a PACE-Registered Paralegal (NFPA) and has previously lectured for the
NFPA as PACE (Paralegal Advanced Competency Exam) Coordinator and PACE
Ambassador. She taught “Computer Applications in the Law,” Fall semester 2007, at
Northern Essex Community College in Lawrence, Massachusetts. This is a required
course in the paralegal degree and certification program. Ms. Martin earned her B.A.
degree, in American studies, and her M.B.A. degree, in human resource management,
from Franklin Pierce University and her Certificate in Paralegal Studies from the
University of New Hampshire. She is the past president of the Paralegal Association of
New Hampshire and was a NFPA PACE Coordinator in 2001.
How To File An Estate In Probate Court
Submitted by Susan J. Martin
• Distinctions Between The Modest And Larger
Estates
• The Estate Timetable And What Needs To Be
Done
• Steps For Proving The Will
• Steps For Challenging The Will
3
HOW TO FILE AN ESTATE IN PROBATE COURT
A.
Distinctions Between the Modest and Larger Estates
1.
Federal and/or state estate tax issues.
(a)
A federal estate tax return must be filed with the IRS within 9
months from the date of death. It is imperative therefore that you determine the
decedent’s tax status and whether a federal estate tax return is required as early as
possible. The federal estate tax filing threshold for 2008 is $2 million, and in 2009 it
increases to $3.5 million. There is a phase out in 2010, although the conventional
wisdom is that it will phase back in somewhere between $2.5 and $5 million. At your
initial client conference, you should discuss who will be preparing the state/federal
tax returns on behalf of the estate and the decedent (income tax return may be joint
with spouse). The tax preparer should be contacted and an appointment scheduled as
soon as possible.
(b)
Asset collection and valuation relative to the federal estate tax
return – assets should be valued as of date of death and then six months after death, or
at the time of sale, if that occurs after death but before the six month alternate
valuation date. If alternate valuation is chosen, all assets must be reported on the
federal estate tax return using the alternate valuation. For purposes of probate
administration, you will use the date of death valuation only.
(c)
Depending on the abilities of the Executor or Administrator, it may
be wise to maintain control over the gathering of information, the documents required
for estate tax purposes, the valuation of assets, etc. In a large estate, the Executor or
Administrator may lack the expertise necessary to handle many administrative tasks
adequately. Other clients may feel overwhelmed by the details, and will gratefully
delegate these responsibilities to the law firm. It is best to give this considerable
thought when probating a large estate, particularly in light of the issues related to
probate bond insurers set forth in B.4.(a) below.
(d)
Post-mortem estate tax planning. In the larger estate, there are
planning opportunities, strategies, and elections that may be appropriate in order to
take advantage of the decedent spouse’s estate tax exclusion amount. Some of these
4
include: minimizing the decedent's and the estate's income tax, postponing the
payment of estate tax, addressing complex rules regarding Section 303 stock
redemption, asset protection, gift splitting between the decedent and the spouse,
reverse QTIP elections, and disclaimers.
(e)
Disclaimers. It is important to make this determination as soon as
possible, as the right to disclaim can be unintentionally waived in certain
circumstances. It is also important to note that a disclaimer is not revocable. The
Probate Court’s review of disclaimers is limited to a review for proper execution and
distribution of property. Additional information can be found at RSA 563-B and
Probate Court Procedure Bulletin 16.
B.
The Estate Timetable and What Needs to Be Done
1.
At the first meeting with the client, or by mail if necessary, have the client
complete and deliver to you an Estate Administration Questionnaire, all original
estate planning documents, and several death certificates. A sample Estate
Administration Questionnaire is appended to these materials. The information
gathered by this form will assist you in determining whether or not probate
administration (testate or intestate) is required, whether the estate is likely to require
the filing of a federal and/or state estate tax return, and the best method of probate
administration, i.e., Waiver of Full Administration (for surviving spouse, or only
child), Voluntary Administration (estate less than $10,000 and decedent died before
January 1, 2006), or Regular Administration (most others). The various procedures
and the forms required to file each type of administration are described in a
publication of the New Hampshire Bar Association entitled “Administering an
Estate” which can be found online at:
http://www.courts.state.nh.us/probate/adminestate03.pdf, and at the NH Probate
Court website: http://www.nh.gov/judiciary/probate/index.htm.
2.
A note about probate filing fees: entry fees differ among the various
Probate Courts due to the differences in the cost of publication. It is good practice to
call the Court to confirm entry fees if this is the first time you have filed in that
county, or if it has been some time since you last filed.
5
3.
In some cases, it may be necessary to file for the appointment of a
Temporary Administrator in order to determine what probate assets, if any, exist, or
you may wish to open an estate solely to pursue a cause of action, or to obtain
medical records in order to determine whether a cause of action exists, e.g., medical
malpractice or personal injury claims. For procedures relative to a Temporary
Administrator, see Probate Court Procedure Bulletin 7 and RSA 553:20-a.
Procedures to open an estate solely to pursue a cause of action, can be found at
Probate Court Administrative Order 7, and procedures to obtain medical records
when there are no assets to probate, can be found at Probate Court Administrative
Order 13. Administrative Orders can be found online at:
http://www.courts.state.nh.us/probate/pcadminorders/index.htm.
Procedure Bulletins can be found online at:
http://www.courts.state.nh.us/probate/pcprocbulletins/index.htm
If no probate is necessary, you should file the original Will and an original death
certificate with the Probate Court within thirty (30) days of the date of death, pursuant
to statute.
4.
Once the Court has appointed an Executor/Administrator, you must meet
certain filing deadlines, which are set forth in a template appended to these materials.
It is best to set up a tickler system to track these deadlines to avoid citations, fines
and/or an appearance before the Court to explain the delay. In some situations, a
failure to file timely will result in the dismissal of the case.
(a)
It is important to note that since Fairbanks, many probate bond
insurers are watching very closely for patterns that they believe may result in a
compensable loss an estates. Suspected conduct includes: repeated failure to timely
file accountings and other pleadings, lack of attention to detail on inventories and
accountings, and/or a clear lack of the necessary skill to handle administrative matters
(demonstrated, or suspected by information contained on the bond application.)
Executors or Administrators must be made aware that a failure to file timely or other
occurrences as set forth above, that result in a default notice and/or fine by the
Probate Court, may cause the probate bond underwriters to review the bonded party’s
personal creditworthiness, and/or cancel the probate bond. In addition, a probate
6
bond insurer may refuse to underwrite bonds for a particular law firm when these
patterns occur repeatedly among the firm’s probate clients.
5.
Ancillary administration. If the decedent owned property in another state,
ancillary administration may be necessary in the county where those assets are
located. Unless an attorney in your law firm is licensed to practice law in that state,
you will need to locate a NH attorney who is licensed in that state. In some
situations, out-of-state counsel may be required or essential to the proper handling of
ancillary matters.
6.
A detailed list of matters to be handled at the outset of administration is
appended to these materials. In some cases, and in order to keep attorney/paralegal
fees to a minimum, the Executor or Administration may wish to do as many of these
important tasks as possible. Keep in mind, however, the issues mentioned above
when making a determination as to whether administrative tasks should be handled
outside of the law firm.
7. Notice to Beneficiaries, Creditors, Dept. of Health & Human Services and NH
counties.
(a)
Pursuant to RSA 552:15, the Executor must send a Notice to Legatees (in
testate estates) within 60 days of the date of appointment, and then file a Return of
Notice within 90 days of appointment.
(b)
Actual notice of the time to file a claim (six months) and bring suit (one
year) must be provided to any known creditors, or those that are reasonably
ascertainable. Tulsa Professional Collection Services v. Pope, 485 U.S. 478, 108
S.Ct. 1340 (1988) and Stewart v. Farrel, 131 N.H. 458, 554 A.2d (1989). Any claims
presented must be paid or compromised in settlement prior to closing the estate.
Compromised claims (settled for less than the original debt) may result in income tax
consequences for the estate or the beneficiaries.
(c)
If the NH Dept. of Health and Human Services has a claim for services
pursuant to RSA 126-A:37, the Executor must provide the HHS Office of
Reimbursements with notice, pursuant to RSA 554:19-a. Likewise, any assistance
provided to the decedent by a NH county pursuant to RSA 166:19 requires notice to
the county.
7
C.
Steps for Proving the Will
1.
Most wills prepared in the last two decades are self-proving. They contain
the signatures of two witnesses and the acknowledgement of a notary public or justice
of the peace, and follow the form set out at RSA 551:2:
http://www.gencourt.state.nh.us/rsa/html/LVI/551/551-2-a.htm
2.
If you have a will that is not self-proving, you must call the Court and
make arrangements for a witness to the will to appear before the Court to prove the
will in “common form.” See: RSA 552:6. Notice to the heirs is not necessary when
proving in common form.
3.
D.
Proof in “solemn form” is discussed below.
Steps for Challenging the Will
1.
Petition to Reexamine the Will in Solemn Form. In situations where there
is a contest over the will, e.g., when there are issues related to the proper execution of
a will, lack of testamentary capacity, fraud, duress, or undue influence, any interested
party can file a petition to re-examine the will in “solemn form” within six months of
the probate of the will. See: RSA 552:7.
2.
The Court will set a trial date and a discovery schedule with due dates for
interrogatories, disclosure of experts, depositions, witness lists, exhibits, ADR
submission, and a pre-trial conference. Discovery rules are governed by Probate
Court Rules 35-45A, which can be found at:
http://www.courts.state.nh.us/rules/prob2/index.htm.
3. Burden of proof – there is a presumption of competence by the testator until
some evidence is presented to rebut the presumption. When that occurs, the burden
of proof switches to the will proponent.
4.
If the will is successfully set aside, the Court will review the prior will (if
any) for acceptance.
5.
There is no right to a jury trial in a will contest, and any appeal must be
made to the NH Supreme Court, and not the Superior Court. (RSA 567-A:10,
repealed effective 1-01-03.)
8
THANK YOU
for choosing this IPE program for your
continuing education needs.
We invite you to answer a few questions and give us
your feedback on this program. Please click on the
following link:
http://www.nbi-sems.com/enbi/surveys/sIPEWebcastSurvey46456.htm
Visit our website at www.ipe-sems.com for a
comprehensive list of our products and services.
9