Archive for the ‘Probate’ Category


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

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

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.

Categories: Probate