Bar News - August 23, 2013
By: Dan Wise
Growth in trusts, aging population strain resources
Here’s the good news: Legislation intended to encourage wealthy people to create trusts in New Hampshire is working and, as a result, is attracting money and economic activity. Last year, more than 4,000 trusts were opened here.
Circuit Court Judges
Certified for Probate Division
*Peter Hurd (turns 70 in January 2014)
*Christina O’Neill (senior status)
*Richard Hampe (retired, sitting as referee)
* indicates original appointment as probate judge. Names in bold are full-time judges.
The bad news? As disputes inevitably arise over the management of these often complex trusts, the probate division of the Circuit Court appears ill-equipped to handle them, attorneys and judges warn.
Compounding the problem, New Hampshire is aging more rapidly than other states, a demographic reality that will inevitably add to the amount of activity for trusts, guardianships, and other matters overseen by the probate division.
The probate division of the Circuit Court is stretched thin, as the number of judges with a depth of institutional knowledge has dwindled, due to the recent retirements of two full-time Circuit Court judges, both members of the original probate court bench.
The retirements of Judge Richard Hampe, a 20-year veteran of the court, and Christina O’Neill, a probate judge for 26 years, led to a scheduling scramble, acknowledges David King, deputy administrative judge of the Circuit Court. (Both judges are helping out. Judge Hampe, who is past 70, as a referee; O’Neill as a senior judge.)
Their retirements only accelerated an ongoing depletion of expertise on the court. Upon the creation of the probate division, seven of the 10 probate court judges were full time; since then, four of those judges have retired or died, and a fifth now works on a reduced scheduled due to disability. In Hillsborough County, which accounts for 30 percent of probate division volume, there has not been a full-time probate court judge since Judge Cloutier retired in 2008.
In January, Judge Peter Hurd, a full-time judge who splits his time between the probate and family divisions, will reach age 70, the mandatory retirement age. And none of the new judges appointed to the Circuit Court in the past few years came in with significant probate expertise.
“We are making this state a destination for trusts – what Delaware is to corporate law,” says attorney Frank Kenison, who exclusively works on probate matters. “We don’t have enough judges now who have a grounding in probate. And the cases coming in now are going to be growing in complexity.”
Kenison says that arranging a multiple-day trial for a probate matter is “incredibly difficult” now. A probate judge can only preside over a trial for a couple of days at a time, then must ride circuit and sit in other counties. A trial that might require a week or more thus could be spread over two months’ time.
Judge King’s calendar illustrates the issue. He splits his time between his administrative role for the entire circuit court and the probate court, presiding three days a week where he is most needed. And he pitches in on paperwork for courts all over the state. One recent week King said he issued orders on probate matters from seven counties. “We are struggling a bit,” he acknowledges.
Ralph Holmes of the McLane, Graf, Raulerson & Middleton firm, another probate litigator, says getting judge time for probate matters is difficult but that the situation has not gotten critical yet.
“Even though the court is stretched thin, the quality of service remains high,” he said. The administrative staff has experience and has seen to it that his cases have had continuity and been handled by the same judge, Holmes added.
King said there are no serious backlogs in routine processing of trusts, although some matters are taking longer than usual to accomplish. There is progress, however. The Circuit Court recently completed a training for judges currently on the court; now there are 22 judges on the court who are certified to hear probate matters, King reports. (See accompanying list.)
The Judicial Selection Commission is screening applicants for three to five Circuit Court judgeships following a call for candidates that had an Aug. 9 deadline. Probate and family practice experience was emphasized in the call for applicants. However, given past practice, it will take several months – until late fall, most likely – for a list of candidates to be given to Gov. Hassan and for her to make nominations.
King is hoping that some of the new appointments expected to be made by Hassan will include attorneys with solid probate law experience that will aid the small corps of judges on the circuit court that were originally appointed to the Probate Court (namely, Judges King, Gary Cassavechia, James Patten, and part-time probate division Judge Gary Boyle).
With a growing group of circuit court generalists trained to handle routine matters for the probate division around the state, King suggests that one or two judges with greater probate experience could be assigned the more complex trust cases that can result in multiple days or weeks of trial – a model akin to the business and commercial docket of the superior court.
King said the judges newly certified in the probate courts are qualified to preside over all types of probate cases and will provide scheduling flexibility to expedite the handling of guardianship requests, name changes, submission of accounts for review, and other estate matters. Judges are sharing their expertise through email list-serves, with each division of the circuit court maintaining one, he said.
He suggests that if an attorney believes that a case will present a new or unusual issue for a judge with less experience in probate matters, counsel should submit a memo to supplement the required pleadings or paperwork. “I believe every judge would welcome a memo,” he said.
King hopes that the future could bring efficiencies through the eventual centralization of time-consuming annual reviews of trusts by putting the work in the hands of staff with accounting expertise. Electronic submission of annual trust accounting reports through the e-Court implementation will make it easier to put the information where it can be reviewed and approved.
Kenison endorses the idea of a trust docket and the other improvements but he still remains concerned about the long term outlook for the small but rapidly growing probate division. He is worried that it will be overlooked and that the probate division, with fewer true experts and a smaller caseload, will always be scrambling to keep up.
Judge King is optimistic about improving probate court operations in the future and his main concern is the continued pressures in the short term.
“We are managing to keep the probate docket moving,” King said. “The more complex cases do not have to wait too long for a trial date now, but we will need help soon.”