No. 2019-0590

Dec. 22, 2020

Affirmed and remanded.


  • The Court decided whether the probate court had subject matter jurisdiction to grant a petition for ancillary estate administration of certain New Hampshire real estate when the petition was filed on behalf of a non-New Hampshire decedent’s estate and the petition did not represent that another state’s court had made a determination that the estate was insolvent.


The decedent died in Massachusetts but owned several parcels of New Hampshire real estate at the time of her death. Her will devised all of the New Hampshire real estate to the trustee of her revocable trust. The trustee of her trust was one of her children, Paul T. O’Neill. When disputes among the children related to the administration of the estate arose, the family reached an agreement that provided a personal representative, John G. Dugan, would be appointed to conduct a supervised administration of the estate. The Massachusetts Probate Court approved the agreement.

Dugan then sought appointment as the ancillary administrator of the decedent’s estate in the New Hampshire Circuit Court. Only New Hampshire real estate was included in the list of the decedent’s property. The probate court provided notice of the filing to the interested parties, including O’Neill, and no objection was filed. After the probate court granted the petition, O’Neill filed a motion for reconsideration, but he appealed before the probate court ruled on the motion.

O’Neill argued both that the circuit court did not have subject matter jurisdiction because the New Hampshire property had already passed to the trust by operation of law and that the trust could only be divested of the real estate if the decedent’s estate was determined to be insolvent. Additionally, the trustee argued the probate court committed plain error when it granted the petition.

The Court found that RSA 547:3 provides the probate court with the power to determine whether a petition for estate administration should be granted. It further found that the probate court is empowered to decide disputes over title to real estate after the administration is granted and an administrator is appointed. Finally, the Court ruled that petitioners are not required to show that a foreign court has declared the estate insolvent before the New Hampshire courts have jurisdiction over the ancillary administration of real estate because New Hampshire statute does not impose such a limit, and there are times where an administrator may apply for a license to sell real estate when the estate is not insolvent.

Because the trial court had not considered the trustee’s non-jurisdictional arguments that he alleged constituted plain error, the Court declined to address the merits of the substantive arguments. They were first raised in a motion to reconsider that was not ruled on prior to the filing of the appeal. The Court remanded the case for further proceedings.


Alec McEachern (on the brief and orally) and Jacob Marvelley (on the brief), Shaines & McEachern, Portsmouth, for the trustee. Alexandra S. Cote (on the brief and orally) and Ralph F. Holmes (on the brief), McLane Middleton, Manchester, for the administrator.