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Definitions
Executor(trix),
Administrator(trix), Personal Representative
Probate is the legal process whereby the Court supervises the administration of an Estate to ensure the orderly and correct transfer of property and to protect the rights of creditors. Probate is required before any of the decedent’s assets can be transferred to heirs or beneficiaries, whether or not there is a Will. The Court process establishes the validity of a Will, and determination of the lawful heirs or beneficiaries, even if there is no Will. The Court supervises the valuation of the decedent's Estate, payment of outstanding debts and taxes, and distribution of the remaining balance to the heirs or beneficiaries.
Executor(trix) /
Administrator(trix) / Personal Representative
Titles given to the person charged by the Probate Court with the responsibility of settling and administering an estate.
A document written during the decedent’s life directing the distribution of his/her property after his/her death.
The term given to an estate in which the decedent has written a properly executed Will prior to his/her death.
The term given to an estate in which the decedent died without a Will. If the decedent died intestate, every state has written a “Will” for him/her which specifies who gets the property. These laws are called intestacy laws and their purpose is to ensure the smooth transfer of property.
The intestacy law (NH RSA 561) governs the distribution of property when the decedent died without a will. All property in an intestate estate typically passes to the decedents spouse, descendants (children, grandchildren, etc.), parents, or siblings. Under state law, the order of distribution of the estate property, after debts and taxes of the estate are paid, is as follows:
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If Decedent
left behind: |
Who gets what: |
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Descendants but no spouse |
Decedents inherit everything |
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Spouse but no descendants or parents |
Spouse inherits everything |
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Spouse and descendants from you and that spouse, and the spouse has no other descendants |
Spouse inherits the first $250,000 of the estate, plus 1/2 of the remaining balance Descendants inherit everything else |
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Spouse and descendants from you and that spouse, and the spouse has descendants from another relationship |
Spouse inherits the first $150,000 of the estate, plus 1/2 of the remaining balance Descendants inherit everything else |
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Spouse and descendants from you and someone other than that spouse |
Spouse inherits the first $100,000 of the estate, plus 1/2 of the remaining balance Descendants inherit everything else |
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Spouse and parents |
Spouse inherits the first $250,000 of the estate, plus 3/4 of the remaining balance Parents inherit everything else |
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Parents but no spouse or descendants |
Parents inherit everything |
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Siblings but no spouse, descendants, or parents |
Siblings inherit everything |
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No Siblings, spouse, decedents, or parents |
Grandparents inherit everything |
A beneficiary is a person, or entity, that the decedent has named in his/her will, or trust, to receive property. The terms of the will or trust can also direct how property shall be given to a beneficiary. A will or trust direct that property be distributed to a beneficiary immediately, over time, or upon the occurrence of some specific event (such as reaching a certain age).
For example, if the decedent set up an inter vivos (or living) trust and put all his/her assets in the Trust, the Trustee holds title to and manage the assets in accordance with the directions given in the Trust for whomever he/she decided should be the beneficiary(ies).
An individual given the
power of administration of property held in trust, with a
legal obligation to administer it solely for the purposes
specified. A
trust can have multiple co-trustees, or a corporate trustee. If the decedent was
the trustee of their trust prior to death, the trust may name
a particular successor trustee, and/or include terms governing
how a new trustee can be appointed.
Asset Transfer by Operation of the Law
Some assets do not pass to heirs through probate but through a process called "operation of the law". A person cannot affect the disposition of these assets through his/her Will (unless all named beneficiaries for life insurance, an annuity or an IRA predecease) and can only direct their ultimate disposition via the beneficiary designation or form of ownership.
For example, life insurance, annuity and IRA proceeds are paid to the beneficiary the owner designated prior to death. A surviving owner of real estate or bank accounts owned with the decedent as joint-tenants-with-right-of-survival automatically becomes the sole owner of the property at the first owner's death.
A tax levied on the net value of the estate of the decedent before distribution to the beneficiaries or heirs. The net value of the estate includes all:
An income tax return for a
trust or an estate. Estates and Trust are required to
file income tax returns, much like an individual would, for
income earned (e.g. rental income).
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