Know The Law: Can You Explain Exactly What Probate Is?

Denis P. Dillon
Director, Trusts & Estates Department
Published: Union Leader
October 29, 2012

Q: Can You Explain Exactly What Probate Is?

A: In New Hampshire probate is a formal public process. When a person dies with probate property a probate estate is “opened.”  This process begins with filing the will, death certificate, and petition at the Probate Court.  The general public has access to all these documents. Thus begins a paper pushing process which includes the filing of a multitude of forms and a flurry of notices sent to interested parties (i.e. creditors, family members, beneficiaries of the will, etc.). It is labor intensive process and thus costly.

If no one protests, the Court “allows” the will and appoints the executor, the person charged with the responsibility of carrying out the terms of the will. Notice of the appointment is provided to persons named in the will and family members. If the decedent did not have a will, the process is similar. Notice of the appointment is also published in a local newspaper.

The executor completes an inventory of the probate property and also accounts for the financial activity in the estate. The executor files the inventory and the accounting with the Court. Those named in the will also receive copies of the accounting and notices from the Court when these documents are filed. (The accounting is in essence a check book register detailing all financial activity in the estate: income, expenses, and ultimately distributions to those named in the will.) The entire process generally takes 12 to 18 months, but large complicated estates can take longer.

Probate properties includes all assets titled in the decedent’s individual name.  Usually joint property is not considered a probate asset, neither are assets which have a beneficiary designation such as life insurance, retirement accounts, annuities, or pay on death accounts, (a special type of account which provides that upon the owner’s death title to the account passes to a beneficiary named by the owner), provided the joint owner or beneficiary is alive at the decedent’s death. Otherwise, the asset is probate property.

The executor pays the debts of the decedent and the expenses of the estate, files the decedent’s final tax returns and any tax returns due for the estate. The process is finished when the remaining probate assets are distributed in accordance with the will (i.e. to the individuals named in the will) and a final account is filed with the Court. A future article will address how to avoid the probate process.