A comprehensive estate plan should do much more than simply decide who will receive your assets when you are gone. Exactly which additional components you will add to your estate plan will depend on your specific needs, wishes, and goals. One popular goal, however, of estate planning is probate avoidance. In order to know why so many people include probate avoidance strategies and techniques in their estate plan though, you need to know why avoiding probate is so desirable. The simple answer to that question is that probate can be very costly, both in terms of time and money, for the people involved in the process. Just how long is the probate process in New Hampshire? The answer to that depends on several factors; however, a better understanding of how the probate process works will give you an idea of how long it typically takes.
What Is Probate and Why Is It Required?
When you die you will leave behind an estate. Your estate will consist of everything you own, including personal and real property as well as tangible and intangible assets. All of your property and assets must be accounted for and eventually transferred to the legal heirs of your estate or your designated beneficiaries. The probate process is a way to make sure that the transfer of assets is accomplished in accordance with all applicable laws as well as to ensure that all creditors of the estate, including the government, are paid before assets are transferred out of the estate.
Is The Estate a “Testate” or “Intestate” Estate?
Before the probate process gets underway it is important to first determine if the decedent died testate or intestate. A “testate” estate is one in which the decedent executed a Last Will and Testament prior to his/her death whereas an “intestate” estate is one in which no Will was executed by the decedent prior to death. The reason this is important is because if a valid Will was left behind, the terms of the Will should determine who the beneficiaries of the estate are and how the estate assets are to be distributed. If the estate is an intestate estate, the legal heirs of the estate must be identified and the New Hampshire intestate succession laws will determine which of those heirs will inherit from the estate and in what proportion.
Is Formal Probate Required?
Another important factor in deciding how long the probate process will take is whether formal probate is required. In New Hampshire, a “Waiver of Full Administration” may be filed if certain conditions exist, including:
(1) Whenever a decedent dies and the surviving spouse is the sole beneficiary of the decedent’s estate and is appointed to serve as administrator.
(2) Whenever a decedent dies and, if there is no surviving spouse, an only child is named as the sole beneficiary of the decedent’s estate and is appointed to serve as administrator.
(3) Whenever a decedent dies and, if there is no surviving spouse or child, a parent is the sole beneficiary of the decedent’s estate and is appointed to serve as administrator.
(4) Whenever a decedent dies and, if there is no surviving spouse or child, the decedent’s parents are the sole beneficiaries of the decedent’s estate and both parents are appointed to serve as coadministrators.
(5) Whenever a decedent dies and a trust created by the decedent is named as the sole beneficiary of the estate and the trustee is appointed to serve as administrator or any appropriate person is appointed to serve as administrator with the assent of the trustee.
When full administration is not required, the probate process is much simpler and may take less time to complete.
If Formal Probate Is Required
When formal probate is required, you can expect the process to take a minimum of six months. The more valuable the estate assets are the longer it will take to probate the estate as a general rule. In addition, if the estate requires litigation, that can hold up the probate process for months. The following steps are common to the probate of most estates:
- Opening probate – the probate process is initiated by the Executor of the estate as determined by the decedent’s Last Will and Testament or by someone who volunteers to be the Personal Representative if the decedent died intestate, or without leaving behind a valid Will.
- Identifying and locating heirs in an intestate estate – if the decedent died intestate, the legal heirs of the estate must be determined by the court. A diligent search must then be made to locate those heirs.
- Notifying creditors – creditors of the estate must be notified that probate is underway. This may be done individually for known creditors but must also be done by publishing a notice of probate in a local newspaper.
- Reviewing creditor claims – creditors have a specific period of time within which a claim against the estate must be filed or it is forever barred. Submitted claims are reviewed and approved claims are paid out of estate assets.
- Litigate challenges to the estate – if a Will contest is filed the contest must be litigated before probate may proceed because the manner in which the estate is probated will depend on the outcome of the litigation.
- Paying estate taxes – a federal estate tax return must be prepared and any gift and estate tax obligation paid.
- Transferring assets – finally, the remaining estate assets are transferred to the intended beneficiaries and/or legal heirs of the estate.
The probate process for even a relatively modest estate can easily take more than a year to complete, which is why people frequently choose to include probate avoidance strategies in their estate plan.
If you have additional questions or concerns regarding the probate process, contact the experienced New Hampshire Medicaid attorneys at Debruyckere Law Offices by calling (603) 894-4141 or (978) 969-0331 to schedule an appointment.