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Bar News - September 5, 2008


New Law Expands Probate Court Jurisdiction

On July 27, 2008, statutory changes created by Senate Bill 488 went into effect. This new law clarifies certain jurisdiction between the trial courts and expands the jurisdiction of the probate court to allow the filing of civil actions for the first time. The biggest change for the probate courts is the addition of RSA 547:3-l entitled "Jurisdiction over Ancillary Matters." The term "ancillary matters" is defined as "claims for liquidated or non-liquidated damages or for the recovery of money or property brought on behalf of an estate, trust, conservatorship, or guardianship against a third party or brought by a third party against an estate, trust, conservatorship, or guardianship including claims against a fiduciary bond and entry or possessory actions." Specifically excluded from the definition are "claims for penalties or other relief under a statutory or regulatory enactment providing for enforcement through or review by the superior court."

Now parties have the option of having a claim related to a probate matter adjudicated in the same court where the probate case is being handled. These may involve civil lawsuits, including small claims, as well as landlord tenant actions. If the claim involves a right to a jury trial, and a jury trial is demanded, the matter will be transferred to the superior court, in the same manner in which cases are presently transferred from the district courts.

This new law represents a significant change for probate practitioners. Historically, when a third party had a claim against an estate, the plaintiff had to file a lawsuit in either the district or superior court. Similarly, if an administrator, trustee or guardian had a third party claim to assert in their fiduciary capacity, the claim had to be filed in one of the other trial courts. The probate matter would then be left in limbo while these related claims were resolved. This process slowed down the processing of cases in the probate court and invariably resulted in extra expense for the fiduciary.

In order to facilitate the processing of these new claims, the probate court has issued Administrative Order 15 and Procedures Bulletins 28-A, B and C. Every attempt has been made to mirror the procedures for civil actions already in place in the district and superior courts. The Administrative Order and Procedures Bulletins may be found on the NH Judicial Branch website, www.courts.state.nh.us/probate.

Senate Bill 488 included other minor changes in jurisdiction, including clarifying cy pres jurisdiction and giving the superior court concurrent jurisdiction with the probate courts over partitions to partition real estate, under RSA 547-C.

 

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