When a family member or other loved one passes away, the last thing most people want to think about are the legal steps that must be taken as a result of the decedent’s death. If you were named as the Executor in the decedent’s Last Will and Testament, however, it means that the decedent wanted you to be in charge of those steps and oversee the probate process. If your loved one the decedent died intestate, or without leaving behind a valid Will, you may also find yourself volunteering to be the “Personal Representative,” which is effectively the same job as an Executor. In fact, to keep things simple, the term “Personal Representative” is used to refer to either an Executor or a Personal Representative. If this is your first time serving as a Personal Representative, you may know very little about the process of probating an estate. Retaining the services of an experienced estate planning attorney to assist you throughout the probate of the estate is certainly advisable. To get you started, however, the estate planning attorneys at DeBruyckere Law Offices have compiled some commonly used probate resources for the Nashua, New Hampshire area.
Probate Basics for the Beginner
When someone dies, that individual leaves behind an estate that consists of all assets owned by the decedent at the time of death. Probate is the legal process by which those assets are ultimately transferred to the intended beneficiaries and/or heirs of the estate. In addition, probate serves to authenticate the decedent’s Last Will and Testament, or litigate a challenge to its authenticity, as well serving as a process in which creditors of the estate may seek payment and any taxes due to the government are paid. The individual who oversees the probate of an estate is the Executor if a Last Will and Testament was executed prior to death, or the Personal Representative(PR) if the decedent died intestate (without a Will). For more general information on the probate process, the American Bar Association has a section entitled “The Probate Process” on its website that you may wish to read. In addition, the New Hampshire Judicial Branch has published a pamphlet that answers some frequently asked questions about Wills and one on Summary Administration (for small estates) that may help you to better understand the probate of an estate.
As a general rule, the probate of an estate occurs in the county wherein the decedent was a resident at the time of death. Therefore, if the decedent lived in Nashua, New Hampshire, the probate process will likely be initiated in the New Hampshire Circuit Court, 9th Circuit, Probate Division. Most PRs retain the services of an experienced estate planning attorney to assist during the probate process, particularly if the estate does not qualify for a small estate alternative to formal probate. If, however, you decide to proceed pro se, or without the assistance of an attorney, you will be expected to understand the Hillsborough County Rules of Court as well as the applicable laws. You should also read the booklet “Administering an Estate” published by the New Hampshire Judicial Branch. Many of the forms needed to probate an estate can also be found on the website; however, keep in mind that court staff cannot help you fill out the forms nor can they provide you with legal advice.
Finding the Right Attorney
Although there are a number of self-help resources for probating an estate without the assistance of an attorney, most PRs do seek the help of an experienced attorney to ensure that costly mistakes are not made during the probate process. If the estate you are probating requires formal probate, having an experienced attorney on your side is even more important given the often complex legal and financial issues involved in the process. Along with providing you with invaluable advice, and helping you navigate the legal system, retaining an experienced estate planning attorney to assist you also allows you more time to focus on grieving your own loss. If you decide to hire an attorney, a good place to start is with the American Academy of Estate Planning Attorneys website. The AAEPA is a national organization of attorneys who have chosen to focus their practice on legal issues related to wills, trusts, and estates. Membership in the AAEPA signifies that an attorney has proven experience in the areas of estate planning and/or elder law. In addition, the New Hampshire Association’s Lawyer Referral Service may be able to hep you find the right attorney to help you probate your loved one’s estate.
Personal Representative Resources
The overall job of the Personal Representative is to oversee the probate the estate of the decedent. To initiate that process you will need to file the appropriate petition with the New Hampshire Circuit Court, 9th Circuit – Probate Division located in Nashua. Along with the petition to open probate you will also need to submit an original copy of the decedent’s Last Will and Testament along with a certified copy of the death certificate. You may obtain certified death certificates from the New Hampshire Department of State, Division of Vital Records Administration. You will also likely need to conduct a thorough search to make sure you have identified all real property owned by the decedent. A good place to start is the Hillsborough County Registrar of Deeds website where you can conduct a search of the county property records. Creditors of the estate are also entitled to notification that probate is underway. As the PR you are responsible for ensuring that notice has been given. You may notify known creditors personally; however, for unknown creditors you must publish notice of the probate inn a local newspaper.
Paying Federal Gift and Estate Taxes
Because every estate is potentially subject to federal gift and estate taxes, you will need to be familiar with how to calculate the tax and how to prepare the tax return. The Internal Revenue Service (IRS) website offers a general overview of the federal estate tax. They also have a “Frequently Asked Questions about Estate Tax” section that may be helpful. If it turns out that the estate does owe federal gift and estate taxes, any tax obligation due must be paid before any assets are transferred out of the estate. Although New Hampshire once imposed a state level Legacy and Succession Tax, that tax was repealed back in 2003.
If you have additional questions or concerns regarding the probate of an estate, please feel free to contact the experienced Nashua, New Hampshire probate attorneys at DeBruyckere Law Offices by calling (603) 894-4141 to schedule your free consultation.