The new year brought a variety of changes to probate practice, most notably the elimination of Small Estate Administration under RSA 553:51. Drafted by a committee whose members included probate practitioners and probate staff, the changes are aimed at cutting administrative red tape.  “What we found was that the Small Estate process often became more time-consuming than a full administration,” said Janelle Laylagian, Probate Court Staff Attorney.

Under the new procedure, estates that would formerly have qualified for Voluntary Administration as Small Estates would file the standard Petition for Estate Administration, paying a graduated fee based on the gross value of the estate. The expectation is that most such estates would then file an inventory unless Waiver of Administration is sought. 

Moreover, all estates now have the option to be closed by a motion for Summary Administration.  Probate Court Rule 169 has been further amended to eliminate the $55 fee for Motions for Summary Administration and some account filing fees.

Bonding has also been simplified, in that estates with a gross value of $25,000 or less may be bonded with only an unsecured personal bond. “Often we had pro se administrators who simply could not buy a bond,” Laylagian said. “Bonding companies were not willing to sell bonds to administrators who were not represented by counsel.”

Publication will not be required for estates with a gross value of $10,000 or less. Further changes in the publication area are to be expected Laylagian said, adding that the Probate Court is considering the relative costs and benefits of Internet publication.  “Fewer and fewer people are reading newspapers,” Laylagian said.  Internet publication might provide better notice to out-of-state creditors.

The new law also expands the administrator’s authority to deal with a classic small estate issue—the car titled only in the name of the deceased. An administrator may now transfer one family motor vehicle to an heir or legatee. Prior law only allowed for the transfer of a vehicle to a surviving spouse.

The various county Probate Courts have begun generating new printed guidelines describing the recent changes.

Other New Probate Provisions

As of January 1, 2006, the Probate Court may now enforce mediated adoption agreements in cases involving the Department of Health and Human Services, under RSA 170-B:14. The hope is that birth parents—faced with a termination of parental rights proceeding—may be more willing to allow their children to be adopted, in exchange for the right to have some ongoing contact with their children.

Also new this year were refinements to the Probate Court’s ability to administer the estates of missing persons. “This has become more of an issue in the post- 9/11 world,” Laylagian said.  “It is also common in areas with ocean boating and swimming.”  The prior law required that such estates be left open for three years—even in those situations where a person was known to have drowned or otherwise died in a catastrophic event, but a body was never found.  Under the new law, the court may hold an evidentiary hearing to establish a death and thereby speed up the administration process.

Last July, SB 60 (2004 Session) became effective to correct an oversight in HB 183 from the 2003 Legislative Session.  SB 60 made clear that when a gift to a minor is made, the value of which exceeds $10,000, unless prior arrangements are made pursuant to the Uniform Transfers to Minors Act (UTMA) in RSA ch. 463-A, a guardianship over the minor’s estate will be required to protect the minor.  In cases where a grantor has taken the time to establish a custodianship pursuant to the UTMA or has established a trust with sufficient safeguards to protect the child-beneficiary, there should be no need for a guardianship of the child’s estate.

Deborah A. Fauver, an attorney with the law firm of Cooper, Deans & Cargill in North Conway, is a regular contributor to the Bar News.

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