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Legal Issues

Legal Issues

Who can legally make decisions regarding a person who has died?

The person who holds the right of disposition under New Hampshire RSA 290 is the person who can legally authorize or decline items such as service arrangements, final disposition, embalming, and more. Typically, if decisions have not been authorized by the decedent in a preneed contract or other directions that are binding under state law, the survivor who holds the right to arrange the funeral under state law will make these decisions and be financially responsible.



NH RSA 290:16 Definitions

In this subdivision:

  1. "At-need funeral arrangements" means funeral arrangements made after death.
  2. "Custody and control" means the right to make all decisions, consistent with applicable laws, regarding the handling of a dead body, including but not limited to possession, at-need funeral arrangements, final disposition, and disinterment.
  3. "Estranged" means living in separate residences and having a relationship characterized by hostility or indifference.
  4. "Next-of-kin" means a person having the following relationship to the subject, in the following order of priority:
    1. The spouse.
    2. An adult son or daughter.
    3. A parent.
    4. An adult brother or sister.
    5. An adult grandchild.
    6. An adult niece or nephew who is the child of a brother or sister.
    7. A maternal grandparent.
    8. A paternal grandparent.
    9. An adult aunt or uncle.
    10. An adult first cousin.
    11. Any other adult relative in descending order of blood relationship.
    12. "Subject" means the person whose remains are placed in the custody and control of another person pursuant to this section.


NH RSA 290:17 Custody and Control Generally

The custody and control of the remains of deceased residents of this state are governed by the following provisions:

  1. If the subject has designated a person to have custody and control in a written and signed document, custody and control belong to that person. The person designated by the subject shall be entitled to no compensation or reimbursement of expenses related to the custody and control of the subject's body.
    I-a. If the subject has designated a person on a United States Department of Defense Record of Emergency Data (DD Form 93), custody and control belong to that person if the decedent died while serving in the United States armed forces and executed the DD Form 93, or its successor form.
  2. If the subject has not left a written signed document designating a person to have custody and control, or if the person designated by the subject refuses custody and control, custody and control belong to the next of kin.
  3. If the next of kin is 2 or more persons with the same relationship to the subject, the majority of the next of kin have custody and control. If the next of kin cannot, by majority vote, make a decision regarding the subject's remains, the court shall make the decision upon petition under RSA 290:19, IV
  4. If the next of kin or person designated by the subject under paragraph I is missing and cannot be located using reasonable efforts, the missing person shall lose custody and control and custody and control shall pass to the next in order of priority.
  5. If the next of kin holding custody and control will not cooperate with the funeral director in making arrangements, the next of kin shall lose custody and control after 3 days of noncooperation and custody and control shall pass to the next in order of priority.
  6. If the individual holding custody and control of the subject is arrested for criminally causing the death of the subject, custody and control shall pass to the next in order of priority.
  7. If no person is designated by the subject to have custody and control and no next of kin can be located using reasonable efforts, the funeral director holding custody of the body shall retain custody and control of the body for purposes of carrying out the disposition of the body.
  8. A funeral director acting in good faith may rely upon representations made by individuals claiming to have custody and control of the subject.


Powers of Attorney

A power of attorney is an instrument by which a person (principal) authorizes another person (the "Agent") to act on his or her behalf. It is quite common for people to execute a power of attorney for healthcare and a power of attorney for property and finance at the same time of drafting a Will.

In a power of attorney for property and finance the authority granted to an Agent may be general in nature and thus may authorize the Agent to act on the grantor's behalf in conducting his or her financial affairs. Alternatively, the power of attorney may be quite narrow, authorizing the attorney to perform specific acts, such as the sale of specific assets (house, car etc.), the conduct of banking, or the transfer of securities.

In a power of attorney for healthcare, also called a healthcare directive, the Agent is authorized to make decisions concerning healthcare, shelter, nutrition, medication, hygiene and safety, but only if the Principal is determined to be incapacitated and unable to make those decisions.

While you can appoint more than one attorney, it is important to decide whether they are to act "jointly" or "jointly and severally." Depending upon where your Agent resides, such a distinction may have significant practical considerations.



Administration of a Will

Wills, probate, joint property, estate taxes, selecting estate trustees and attorneys for property and personal care and other issues may appear somewhat intimidating at first.

Fortunately, with a little guidance and preparation, dealing with such matters does not have to be so overwhelming. Planning ahead and revising your plan often will help avoid unnecessary grief and confusion in the end. 'Estate Planning' includes all of the following issues and documents.



The Will

A Will is an instrument by which a person (the ''testator") makes a disposition of his/her property, to be performed or take effect after his or her death.

A well-drafted Will may provide for the welfare of the testator's family, distribute the testator's assets in accordance with his/her wishes and secure the efficient management of the testator's property.

Handwritten Wills ("holographic Wills") can be made by a testator without the services of a lawyer, but problems can arise if not done properly and/or in accordance with applicable legislation.

A properly drafted Will can be a simple, inexpensive way to address many estate-related matters and can make matters run much smoother upon death. While there are many benefits to having a Will in place, there are some things that may not be accomplished in a Will. It is important to keep in mind that some items may not flow through your estate and thus may not be distributed in accordance with your Will. During the estate planning process, it is important to speak with a lawyer experienced in such matters and knowledgeable of your unique situation.

A well-designed estate can help minimize probate costs and estate taxes and can alert you to any potential statutory claims that may impact your ability to deal with your assets as intended.

A lawyer can discuss any potential claims that a "dependent" may have under Law, and/or with respect to any potential claims or entitlements. An awareness of such responsibilities and rights can help prevent unintended consequences or surprises upon death. In addition to certain statutory claims, there are other legal limitations that must be considered when drafting a Will. Documents such as a marriage or cohabitation agreement, a separation agreement, or a shareholder's agreement (with buy/sell provisions, or option agreements) may also affect your Will plan, and thus it is important that such information be shared with your representative(s) when designing an estate plan.

The potential responsibility and work involved in being an Executor can be significant, and thus appointing someone with the financial acumen and willingness to take on this responsibility is a must.

Often times, people assume they must appoint a relative or child to act as an Executor because it would be "an honor." While it may be considered "an honor" for some, the primary considerations should be choosing someone with the patience, ability and willingness to carry out this responsibility.



Information Gathering

Upon death, one of the first things to do is to gather as much information as possible. It is important to look for and gather any Wills, deeds, financial documents, notes and insurance policies, etc., that the deceased may have.

As a starting point, the testator should consult the testator's lawyer as sometimes original Wills have been kept at the lawyer's office.

Upon death, you may want to ask the lawyer to provide notarized copies of the deceased’s Will.

Before estate matters can be pursued (i.e. transferring a house or automobile, other legal matters), a copy of the death certificate is also required.

Please speak to the funeral home about obtaining certified copies of the death certificate (as some agencies will not accept photocopies).

In addition to determining how your estate will be distributed, a lawyer can speak to you about choosing an Executor, and the considerations involved in selecting an appropriate person (or professional) to administer your estate.



Probate

Common questions from a newly entrusted/appointed Personal Representative are “What is probate and why do we need it?” and “Do we have to probate?”

Probate is a rather formal procedure, establishing the validity of the Will, and is the official “proving” of the Will.

Fortunately, not all Wills need to go through probate; such a determination will be dependent upon a testator’s unique situation. Probate asks for the court's involvement and can have a large range of both cost and time required to complete, depending on the complexity of assets, debts, and disputes.

Whether to spend your time and effort planning to avoid probate may or may not be an appropriate goal; depending on the size and complexity of your estate. Even if avoiding probate isn't necessary, putting a plan in place for the care of children and distribution of assets is important to prevent disputes among family and to provide for loved ones. Regardless, the more information you share with your attorney and your personal representative, the more likely you are to have an estate plan that best fits your needs.

This guide is not intended to be a substitute for specific individual tax, legal, or estate settlement advice, as certain of the described considerations will not be the same for every estate. Accordingly, where specific advice is necessary or appropriate, consultation with a competent professional is strongly recommended.



In New Hampshire

In New Hampshire, the administration of a decedent’s estate comes under the jurisdiction of the Circuit Court Probate Division.



The Executor and the Administrator

As an executor or administrator, it is your responsibility, under the Circuit Court Probate Division’s supervision, to ensure that the debts and assets of the estate are managed and distributed in accordance with New Hampshire law and the decedent’s wishes if expressed in a will.

An executor is a person named by a decedent in a will to administer an estate (sometimes referred to as a testate estate). An administrator is a person eligible under New Hampshire law, and who is approved by the Circuit Court, to administer an estate when the decedent leaves no will (sometimes referred to as an intestate estate) or when the executor(s) named in the will cannot serve. Whether you are an executor or an administrator (sometimes also referred to as a fiduciary), you must exercise the highest duty of good faith and candor in carrying out the administration of the decedent’s estate.

Your responsibility as executor or administrator is to perform certain tasks to see that the estate is properly probated. The assets of the decedent’s estate must be collected and its debts paid, if sufficient funds exist in the estate. The assets must be managed while awaiting approval to distribute them and estate funds must be kept separate from any other funds by opening an account in the name of the estate and depositing all estate funds and paying all estate bills from that account. You must inform all persons with any legal interest in the estate, including creditors and potential heirs, of any matters that might affect their interests.

Probate usually works like this: After your death, the person you named in your Will as Personal Representative or, if you die without a Will, the person appointed by a judge files papers in the local probate court.

The executor proves the validity of your Will and presents the court with lists of your property, your debts, and who is to inherit what you've left. Then relatives and creditors are officially notified of your death.

While you do not need to be an attorney to serve as an executor or administrator, you should always consult an attorney when issues arise which you are not comfortable handling. If consulted for a proper purpose, and with court approval, attorneys’ fees are payable out of the estate. The court’s Information Center can provide assistance in giving general advice and providing necessary forms, checklists and guidance regarding electronic filing of cases, but cannot give legal advice. You can reach the Information Center by calling 1-855-212-1234 during regular business hours, Monday through Friday, 8am to 4pm.

If, for whatever reason, you do not properly perform your duties as executor or administrator, the Circuit Court Probate Division will appoint a new executor or administrator to complete the administration of the estate. If you are unable or unwilling to serve, you may decline by filing a “Declination” form. The court will then appoint a substitute executor or administrator pursuant to the decedent’s instructions, or upon petition by other interested parties.



The Estate

The decedent’s estate consists of any and all real and personal property, whether owned alone or in common with others. If, however, real or personal property is held as a “joint tenancy with right of survivorship,” it is not part of the probate estate since title passes at death directly to the surviving joint tenant. The same principle applies to other jointly held property, such as joint bank accounts. The proceeds of a life insurance policy also pass directly to the beneficiary, and are not part of the decedent’s probate estate. If any of the decedent’s property is held in a trust, then you should consult an attorney to determine whether, or to what extent, the trust is involved in the probate process. Even if there are no assets, but there is a will, you must file the will, any codicils (amendments), and a death certificate with the Probate Court within thirty (30) days of the date of death. If the will was made out of state, a “Statement of Counsel as to Propriety of a Foreign Will/Codicil to be “Admitted into Probate” must be filed with the Circuit Court.



Special Rights of a Surviving Spouse

You should be aware of special rights of a surviving spouse in the estate administration process. In some instances, a surviving spouse may receive a greater share of the estate than the will would have provided. A surviving spouse may waive the will provisions and his/her homestead rights and instead take his/her share of the estate as set forth by law. The surviving spouse must make this choice within six months of the executor’s appointment. In an intestate estate, the surviving spouse’s share is set forth by statute and is generally anywhere from half of the estate to the entire estate after payment of debts and expenses.



New Hampshire Intestacy Statute

The intestacy law (also called the law of descent and distribution, NH RSA 561) governs the distribution of property when the decedent dies without a will. Under state law, the order, or priority, of distribution of all property of a decedent after debts of the estate are paid, is as follows:

If there is a surviving spouse:

  • the surviving spouse receives the entire estate if the decedent had no surviving parent or child;
  • the surviving spouse receives the first $250,000 of the estate plus one-half the balance if there is a surviving child of both the decedent and the surviving spouse, and there are no other children of the surviving spouse who survive the decedent;
  • the surviving spouse receives the first $250,000 plus three-fourths of the balance if there is a surviving parent of the decedent, but no surviving child;
  • the surviving spouse receives the first $150,000, plus one-half of the balance of the estate if there is a surviving child of both the decedent and the surviving spouse and the surviving spouse has a surviving child who is not the child of the decedent;
  • the surviving spouse receives $100,000 and one-half of the estate, if the decedent left children who are not also children of the surviving spouse.


If there is not a surviving spouse or if parts of the intestate estate still have not been distributed under the above formula, the remainder of the estate passes in the following order:

  • to the children of the decedent, in equal shares, or their descendants if any of the children are deceased;
  • if the decedent has no surviving children, then to the parent(s) of the decedent;
  • if the decedent has no surviving children or parent(s), then to the surviving brothers and sisters of the decedent in equal shares and to the children of the decedent’s deceased brothers and sisters by representation. (Representation means that these children share equally the portion their parent would have received had their parent survived the decedent.)
  • if the decedent has no surviving children, parent(s), or brothers or sisters, or children of deceased brothers or sisters then, to grandparent(s);
  • if there are no surviving children, parent, children of a parent, or grandparent, but there are children of decedent’s grandparent who survive, one-half of the estate passes to the children of the paternal grandparent who are not beyond the fourth degree of kinship to the decedent; the other half passes to the children of the maternal grandparent who are not beyond the fourth degree of kinship; provided, however, that if there are no children of the decedent’s grandparent within the fourth degree of kinship to the decedent on either the paternal or maternal side, the entire estate passes to the issue on the other side who are not beyond the fourth degree of kinship to the decedent.


No portion of a decedent’s intestate estate shall pass to any person who is of the fifth or greater degree of kinship to the decedent. If no one is available to take the estate under the provisions of the intestacy law, the intestate estate passes to the State of New Hampshire by a process called “escheat.”

Children born of unwed parents inherit through their mother, but can also inherit through their father if the father acknowledges paternity or is found to be the father through a court proceeding.



Getting Started

You must file your probate case through the Electronic Filing System for the Circuit Court Probate Division. The Electronic Filing System is a computer program you can access with any computer connected to the internet. If you do not own a computer, you can go to any Circuit Court Probate, District or Family Division in the state (except for the Colebrook court) and use a public computer kiosk located in the lobby to file your case. There is no fee for use of the court computer. The Electronic Filing System will guide you through the filing of all case initiating documents by asking you a series of questions. After you have answered each question the system will produce a completed document and will explain how to finalize it and submit it electronically to the court for filing. There are filing fees for all the types of estate administration described below. These fees can either be paid, electronically, at the time of filing, by credit card or you may go to the court to pay the filing fee in person after you have filed the case initiating documents electronically. The lists of forms included under each section will help you get started. There will be additional forms required as the administration progresses.

A link to court forms and other helpful resources is available at: https://www.courts.state.nh.us/probate/estate.htm.

To get started in the Electronic Filing System go to: https://www.courts.state.nh.us/nh- e-court-project/electronic-services.htm on the NH Judicial Branch website. For self- represented filers, after you register in the Electronic Filing System, it guides you to the forms you will need to file. Many of the forms are generated automatically after you answer a series of questions.



Electric Filing System

To get started in the electronic filing system go to: https://www.courts.state.nh.us/nh-e-court-project/electronic-services.ht on the NH judicial branch website.



Lawyer Referral Service (LRS)

LRS provides referrals statewide for those who can afford to pay for an attorney’s Services (603) 229-0002. E-mail lrsreferral@nhbar.org for more information, or visit our web site at www.nhbar.org, under the “Need a Lawyer?” heading.



Reduced Fee Referral Program

Reduced Fee provides referrals statewide to qualified individuals who can afford to pay something for an attorney’s services, but who cannot afford an attorney’s regular fees: (603) 715-3290. E-mail Reducedfee@nhbar.org for more information, or visit our web site at www.nhbar.org, under the “Need a Lawyer?” heading.

Cournoyer Funeral Home & Cremation Center
Phone: (603) 532-6484 | Fax: (603) 532-5725
PO Box 486 | 33 River Street, Jaffrey, NH  03452


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