NH PROBATE – FREQUENTLY ASKED QUESTIONS

By:  Nadine M. Catalfimo, Trust and Estate Lawyer  

Dated:  May 24, 2012

What is probate?

Probate is the court process by which someone is appointed to serve as the executor or administrator of an Estate by the court.  The executor will collect all the assets, pay debts of the decedent, pay the costs of the estate administration, report all assets to the court and after a certain time period has lapsed (and all bills are paid), will distribute the estate assets to the  decedent’s beneficiaries.

How long does it take?

It depends.  A typical estate in NH may be closed after six months if all the interested parties assent to a Motion for Summary Administration.  However, all debts and outstanding bills must first be paid, including the decedent’s final 1040 income tax.  If the beneficiaries do not waive the accounting and do not agree to an expedited Motion for Summary Administration, then  it may take up to 1 year or longer (from the executor’s date of appointment) before the estate can be closed.

How much are the court costs?

The filing fees and costs to probate an estate vary depending on the value of the probate estate.  The filing fees increase with the value of the estate.  If a fiduciary bond with corporate sureties is required by the court, then the executor will also have to pay an annual bond premium, which can be expensive depending on the value of the probate estate.  The fiduciary bond amount is usually equal to the value of the probate estate.  If the value of the estate is greater than $10,000, then the probate court will require the publication of a notice, which is a $40 – $45  fee.  Filing fees start at $90 and go up to $180, plus the publication fee, if required.  The Motion for Summary Administration costs $65.  The probate court has a list of all filing fees and costs on its website.  You can access this link through the “Resources” tab on http://www.nhprobateattorney.com.

What should I do first?

The first steps you should take is to obtain certified copies of the decedent’s death certificate, contact social security regarding the decedent’s death, locate the original Last Will of the decedent and make a list of all the decedent’s family members names, addresses and dates of birth.  If any family members are deceased, you may also need a certified copy of the deceased family member’s death certificate.  Compile a list of all the assets the decedent owned at the time of his or her death with estimated values.

What if the attorney who prepared the Last Will still has the original?

It is common for the attorney who prepared the original Last Will to still hold the original for safe keeping.   However, NH law requires that the original be filed or deposited with the executor or the probate court in the county of the decedent’s residence within thirty days.  Depositing the Last Will with the court does NOT commence the probate process with the court.  It is important to note the executor is NOT required to use the services of the attorney who has the original Last Will or who deposits the original with the probate court.  The executor can retain an attorney of his choice.

What assets are subject to probate?

Assets that are owned jointly with another individual, assets which designate a beneficiary and assets owned by a trust are NOT subject to probate.  Only assets owned by the decedent in his individual name or assets payable to the Estate will need to be reported to the probate court.

How do I start the court process?

The executor will need to file a Petition for Administration, with accompanying documents (which vary depending on the circumstances of the case) and the filing fees.  Once the initial probate administration documents are filed, the court will appoint the executor and send him one certified copy of the certificate of appointment.  This process can take anywhere from 3 to 8 weeks, depending on the court and the court’s caseload, and whether the documents filed with the court are in order.

What happens after the executor is appointed by the court?

There are several steps in the probate process, even if there is only one asset in the estate.  After the executor is appointed, all interested parties and beneficiaries are notified of the administration, publication of the appointment may be made in a local paper and the executor will be required to file an inventory with the probate court setting forth a list of all the assets the decedent owned at the time of death with the date of death values.  After publication is made, all potential or known creditors of the estate, including medical providers that provided care and services for the decedent’s last illness, should be notified in writing so creditor claims can be made and paid by the estate.   This also includes credit card debts, student and car loans, and other loans and obligations of the decedent at the time of his  death.

What about the tax laws?

There are many tax laws to consider when probating an estate including federal estate, gift, generation skipping and income taxes.  The federal, gift and GST tax laws can be complicated.  The executor will need to prepare and file the decedent’s final 1040 federal income tax return and a 1041 for the estate, if applicable.  If there is also a trust, the executor can coordinate with the Trustee and make certain elections regarding the estate and trust regarding the income tax filings. Federal estate tax is due 9 months from the decedent’s death.  Please call me or a CPA for additional information and guidance on tax laws and the required filings.

What if there is not a Last Will?

If there is no Last Will of the decedent, then the estate will be distributed to beneficiaries pursuant to NH law which sets forth who gets what depending on the relationship to the decedent.  The law also sets forth who can be appointed by the court to serve as the administrator. 

Please call (603) 818-1563 for more information or go to www.nhprobateattorney.com.

The information in this blog post is intended to be a general overview.  It is not a comprehensive explanation of all probate procedures.  This blog post is for informational purposes only and is not intended to be legal advice directed at any particular case.  Since every case is different and the circumstances may vary, if you have questions you should consult directly with an attorney.

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Categories: Probate

PET ESTATE PLANNING IN MA & NH/March 16, 2012

March 17, 2012 Leave a comment

PET ESTATE PLANNING

By:  Nadine M. Catalfimo, Esq., Trust & Estate Law

We love our pets…. a lot.  And they love us back unconditionally.  My dog, Sam, was a handsome male German shepherd dog, and the best friend I ever had.  He was a member of my family.  He died from a failing liver after 11.5 years.  During his last weeks, I spent thousands of dollars trying to save his life on veterinary visits, prescriptions, antibiotics, hydration, special food,  x-rays and an MRI.   I doubt someone else would have spent the money and time that I did trying to save his life.  If anything ever happened to me when he was alive, I would have wanted someone to provide a loving home for him, with the food, monthly prescriptions and veterinary care he needed and also to try to save his life like I did — even if it cost thousands of dollars.  During a pet’s last days, it is common to incur some serious veterinary bills.

So what can you do to plan ahead for your pet in case it outlives you?  There are a few options. 

ESTATE PLANNING.  If you already have an estate plan, preparing a codicil to your Will or an amendment to your Trust to plan for your pet is simple.

DESIGNATE SOMEONE.  First, you need to determine who will be taking your pet should you die and talk to that person about it now.  It is wise to designate an alternate individual in case your first choice is unable to take custody for some reason (living arrangements, allergies, etc.).  Don’t assume your family or friends will take your pet for you without any discussions – make someone responsible now and discuss it so they feel obligated to step in when you are gone and then formalize it by adding a provision to your Will and or Trust. 

The person designated should also be told to go pick up your pet immediately if something happens to you so that your pet is not left alone in your home until someone checks on your home, a week or two after your death.  It happens.  I have dealt with estates where the Executor didn’t know the decedent even had a pet, until they went to the home to surprisingly find a neglected and undernourished pet.  Also, situations where a neighbor wanted the pet, but the pet was brought to a shelter instead because no one knew about the arrangements.

THE GENERAL LAW.  Pets are considered personal property and pass under the provisions of the personal property provision in a Will or Revocable Trust, to the extent it is not specified who gets the pet upon the owner’s death.  If there is no personal property provision in a Will, a pet will pass as specified under the residuary clause.  If there is a Revocable Trust and all personal property was transferred into it already, then the provisions of the Trust may control who gets the pet, absent a specific provision.  Pets are permissible beneficiaries under the law in both Massachusetts and New Hampshire.

CONDITIONAL MONEY BEQUEST.  It is possible to give your pet to someone with a conditional money bequest that provides the person take custody of the pet first.  However, the person can take the money and still dispose of the pet after.   It is a horrible thought, but it can happen.

PET TRUSTS.  You can also set up a “Pet Trust” to benefit your pet and fund it with a specific amount of money.  This is specifically authorized under both Massachusetts and New Hampshire law (see Mass. Gen. Laws  §203:3C and New Hampshire RSA 564-B:4-408). 

A Trustee is designated (which may be the same person who is caring for your pet or a completely separate individual) to manage the money for the benefit of your pet. 

Under New Hampshire law, to the extent the trust exceeds the amount needed for the purpose of the pet trust, the excess must be distributed to the person who created the trust, if living, or otherwise to his or her successors in interest.  Massachusetts  has a similar statutory provision which provides that to the extent the amount in trust is substantially in excess of the amount needed,  the excess passes pursuant to the terms of the trust, or otherwise as set forth under Mass. Gen. Laws §203:3C. Thus, one should designate a beneficiary to receive any excess monies and the remaining funds in the pet trust upon a pet’s death, so that the funds in trust do not revert back to the estate and trigger a probate administration. 

Your Executor (also known as a Personal Representative in MA), and the Trustee can also be authorized to pay veterinary bills to maintain or restore a pet’s health and other expenses for its care, placement, or transportation (after your death), either from the trust or directly from the residue of the probate estate, to the extent there is not a pet trust. 

There are many options to plan ahead for your pet.  Please call today to discuss these options and how you can incorporate “pet planning” into your estate plan to make sure your pet is properly cared for upon your death. 

Email:  ncatalfimo@MA-NHEstateLaw.com

MA – (978) 364-0805

NH – (603) 952-4491

 This information is provided as general information only and is not intended to be legal advice.  You should contact an attorney to review your specific legal situation and advise you accordingly.  The information in this article does not create an attorney/client relationship.

3 Great Reasons to Set Up a Revocable Trust

February 27, 2012 Leave a comment

3 GREAT REASONS TO SET UP A REVOCABLE TRUST !

By: Nadine M. Catalfimo, Trust & Estate Attorney

Trusts are not just for wealthy individuals. They are useful to anyone for many reasons. This article will discuss 3 top reasons to set up a Revocable Trust (hereinafter “Trust”).

Like a Will, you can change and amend your Trust during your life. You can change the beneficiaries and take assets out and put them back in. A Trust becomes irrevocable when you die. “Irrevocable” means you cannot change the terms of the Trust (unless you give the Trustee the power to do so).

#1 – PROBATE AVOIDANCE AND PRIVACY.

A Trust is a legal document similar to a Will, but it is not subject to probate when you die. “Probate” is the court process of gathering assets, reporting to the court, determining creditors and debts, paying bills and then distributing estate assets to beneficiaries. In NH, the entire probate process can take up to one year or longer. An Executor cannot administer an estate and control assets until authorized by the court. It can take a couple of months to get appointed, whereas a Trustee can take control of assets in a Trust immediately! Because a Trust is not filed with the court, it is a private document and only Trustees and beneficiaries will have access to it.

Assets owned by a Trust and assets that designate a Trust as a beneficiary avoid the probate process entirely. It is very common to title assets in the name of a Trust. You have complete control of your assets held in your Trust. When you die or become incapacitated, the Trustee steps in immediately – without any court approval and without any delays.

#2 – MINOR CHILDREN AND GUARDIANSHIP AVOIDANCE.

A Trust is a great vehicle to plan for the future of minor children. You can specify the age(s) when a minor receives property, which can be over and above the age of majority. When a minor receives property under a Will, a guardianship proceeding is necessary to appoint a guardian until the minor reaches 18. Assets owned by a Trust avoid the necessity of a guardianship proceeding (of the property) for a minor because the Trustee holds and administers the property in Trust.

This type of planning is beneficial if you have minor children from a previous marriage and you don’t want your ex to have control over assets left to your minor children. If you become incapacitated during your life, assets held in Trust will not require a guardianship proceeding for you individually.

Guardianship proceedings require annual court filings, accountings and the payment of annual fees. There are also delays with the court process. Assets in Trust avoid guardianship proceedings entirely.

#3 – FEDERAL AND STATE ESTATE TAX PLANNING.

A Trust is also used for federal and state estate tax planning. It is possible to defer the federal estate tax of a married couple until the death of the surviving spouse, and in some states, the state estate tax as well. There are estate tax planning techniques that can be incorporated into a Trust to utilize the federal exclusion amount in a “bypass” a/k/a “family” trust to shelter those assets passing to beneficiaries, with capital gain and income tax benefits.

Sometimes the transfer of assets from one spouse to another spouse will lower or entirely eliminate each spouse’s federal and state estate tax liability. If you own real estate in another state, your estate may be subject to state estate tax upon your death in that state, regardless of your domicile state.

In some situations, hundreds of thousands of dollars can be saved, sheltered and passed to beneficiaries (instead of Uncle Sam) upon your death – by implementing estate planning techniques and setting up a Trust now.

If you would like to learn more about estate tax planning and establishing a Revocable Trust, and whether it is right for your situation, please contact Nadine Catalfimo, Trust and Estate Attorney, at (603) 952-4491, 300 Brickstone Square, Suite 201, Andover, MA, 01810, or ncatalfimo@MA-NHEstateLaw.com .

Categories: Estate Planning

Federal Estate and Gift Tax Law Update / February 2014

February 27, 2012 Leave a comment

2014 ESTATE AND GIFT UPDATE (posted 2/14/2014)

The laws changed since my last blog on this topic.  The following are the major estate and gift tax laws and changes made in 2014:

1.   The Estate, gift and GST tax (generation skipping tax) applicable exclusion amount increased from $5.25 million in 2013 to $5.34 million in 2014.  This means that a married couple can now transfer a combined $10.68 million tax free and without federal estate, gift and GST tax.

2.  The Estate, gift and GST tax is 40%.

3.  The annual gift tax exclusion amount is $14,000 per donee.

4.  Portability of the federal exclustion amount is now permanent which means the unused exclusion of the first deceased spouse can be used by the surviving spouse at death.  However, GST and state exclusions are NOT portable.

5.  The gift tax exclusion to a non-citizen spouse increased to $145,000.  Gifts between spouses are unlimited if the donee spouse is a United States citizen, however, there are restrictions when the donee spouse is not a United States citizen.

FEDERAL ESTATE, GIFT AND GST TAX LAW UPDATE – 2012
By: Nadine M. Catalfimo, Esq.

On February 13, 2012, the United States Department of Treasury released the Treasury Greenbook which sets forth Obama’s revenue proposals for the fiscal year 2013. The link to the report can be found at: www.treasury.gov/resouce-center/taxpolicy/pages/general_explanation.aspx.

The report provides a nice synopsis of the proposed changes to the estate, GST and gift tax laws, including portability. The following information is found on Pages 75-76 of the report (but pages 82-83 of the PDF document):

RESTORE THE ESTATE, GIFT, AND GENERATION-SKIPPING TRANSFER TAX PARAMETERS IN EFFECT IN 2009

CURRENT LAW


Until the end of 2012, the current estate, generation-skipping transfer, and gift tax rate is 35 percent, and each individual has a lifetime exclusion for all three types of taxes of $5 million (indexed after 2011 for inflation from 2010). The surviving spouse of a person who dies after December 31, 2010, may be eligible to increase the surviving spouse’s exclusion amount by the portion of the predeceased spouse’s exclusion that remained unused at the predeceased spouse’s death (in other words, the exclusion is “portable”). However, after 2012, the tax rate and tax brackets, the amount of the exclusion, and the law governing these three types of taxes will revert to the law in effect in 2001, as if the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA) had never been enacted. Portability of the exemption between spouses for both gift and estate tax purposes, enacted as part of the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010 (TRUIRJCA), also will no longer apply.
Prior to the enactment of EGTRRA in 2001, the maximum tax rate was 55 percent, plus a 5-percent surcharge on the amount of the taxable estate between approximately $10 million and $17.2 million (designed to recapture the benefit of the lower rate brackets). The exclusion for estate and gift tax purposes was $675,000 and was scheduled to increase to $1 million by 2006. Under EGTRRA, beginning in 2002, the top tax rate for all three types of taxes was reduced incrementally until it was 45 percent in 2007. In 2004, the exemption for estate taxes (but not for gift taxes) began to increase incrementally until it was $3.5 million in 2009, and the generation-skipping transfer (GST) tax exemption and rate became unified with the estate tax exemption and rate. During this post¬ EGTRRA period through 2009, the gift tax exemption remained $1 million. Under EGTRRA, for 2010, the estate tax was replaced with carryover basis treatment of bequests, the GST tax was not applicable, and the gift tax remained in effect with a $1 million exclusion and a 35-percent tax rate. The EGTRRA provisions were scheduled to expire at the end of 2010, meaning that the estate tax and GST tax would be inapplicable for only one year.
In 2010, TRUIRJCA retroactively changed applicable law for 2010 by providing a top estate tax rate of 35 percent for taxpayers electing estate tax rather than carryover-basis treatment. It also retroactively reinstated the GST tax and unified the exemption for estate, GST, and gift taxes beginning in 2011 with a $5 million total lifetime exclusion for all three taxes (indexed after 2011 for inflation from 2010). The Administration’s FY 2013 baseline assumes that the estate tax provisions in effect in 2012 are permanent.
REASONS FOR CHANGE
TRUIRJCA provided a substantial tax cut to the most affluent taxpayers that we cannot afford to continue. We need a permanent estate tax law that provides certainty to taxpayers, is fair, and raises an appropriate amount of revenue.”

Whether the above proposal will be changed or passed by December 31, 2012, is another update! Nadine can be contacted at ncatalfimo@MA-NHEstateLaw.com.

Categories: Estate Planning, Tax

2014 ESTATE AND GIFT TAX LAW UPDATE

July 25, 2011 1 comment

2014 ESTATE AND GIFT UPDATE (posted 2/14/2014)

The laws changed since my last blog on this topic. The following are the major estate and gift tax laws and changes made in 2014:

1. The Estate, gift and GST tax (generation skipping tax) applicable exclusion amount increased from $5.25 million in 2013 to $5.34 million in 2014. This means that a married couple can now transfer a combined $10.68 million tax free and without federal estate, gift and GST tax.

2. The Estate, gift and GST tax is 40%.

3. The annual gift tax exclusion amount is $14,000 per donee.

4. Portability of the federal exclustion amount is now permanent which means the unused exclusion of the first deceased spouse can be used by the surviving spouse at death. However, GST and state exclusions are NOT portable.

5. The gift tax exclusion to a non-citizen spouse increased to $145,000. Gifts between spouses are unlimited if the donee spouse is a United States citizen, however, there are restrictions when the donee spouse is not a United States citizen.

ESTATE, GIFT AND GST TAX LAWS – 8/2011

By:  Nadine M. Catalfimo, Esq.        

On December 17, 2010, Congress enacted the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010 which temporarily changed the estate, gift and generation skipping transfer tax laws.  The new laws are in effect only until December 31, 2012, and will “sunset” if new legislation is not passed by Congress by 2013.   The following are some important highlights of the changes in the tax laws:

Federal Estate Tax

A decedent dying in 2011 and 2012 receives a $5 million federal estate tax exemption ($10 million for married couples).  Estates that exceed the $5 million exemption will be subject to a 35% federal estate tax rate.

Portability 

Under the new laws, the $5 million exemption is portable between spouses.  Thus, if one spouse dies and does not utilize all of his or her exemption, the surviving spouse’s estate may elect to utilize the unused portion of his or her spouse.

Gift Taxes in 2011 and 2012 

The exemption was increased to $5 million for gifts made in 2011 and 2012.  In excess of the exemption, the tax rate of 35% applies.

Annual Gift Tax Exclusion Amount 

It remains at $13,000 per donee per year.

Generation Skipping Tax

In 2011 and 2012, the GST exemption is $5 million and the tax rate is 35%.

Step Up in Basis 

Under the new laws, heirs may inherit assets with a step up in basis equal to the fair market value of assets as of a decedent’s date of death.  This is important for capital gains tax upon the sale of an asset inherited by a beneficiary.

 What Happens in 2013?

Without new federal legislation enacted by December 31, 2012, GST tax will revert to a $1 million exemption and 55% tax rate.  Also, the gift tax exemption amount will revert to a $1 million exemption.  Further, the federal estate tax will revert back to a $1 million exemption and a top tax rate of 55%.

 Nadine Catalfimo, Esq. can be reached at ncatalfimo@MA-NHEstateLaw.com or (603) 952-4491 for more information.